Garretson v. Merchants & Bankers Fire Insurance

114 Iowa 17
CourtSupreme Court of Iowa
DecidedMay 14, 1901
StatusPublished

This text of 114 Iowa 17 (Garretson v. Merchants & Bankers Fire Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garretson v. Merchants & Bankers Fire Insurance, 114 Iowa 17 (iowa 1901).

Opinion

Sherwin, J.

1 [19]*192 3 4 [18]*18The policy in suit contains the following-stipulations : i “In case of a disagreement as to the amount of sound value or damage to any property insured, the same shall, at the written request of either party, be determined by impartial arbitrators; one to be chosen by the company and one by the assured; the two chosen to select a third in case they cannot agree; * * * and' [19]*19the award * * shall be conclusive as to the amount of such sound value and damage.” It is further stipulated rrt said policy “that no suit on this contract for the recovery of any claim shall be sustainable in any court of law or equity until after an award shall have been obtained by arbitration in the manner in said policy provided, nor unless commenced within six months next ensuing after the fire, exclusive of any time consumed in arbitration.” As stated by the appellant, “she relies upon the proposition that her cause of action did not accrue and was not maintainable in any court of law or equity until after said noticq in writing was given for arbitration, and said arbitration refused by the defendant.” In other words, the plaintiff contends that the insured, under the stipulations above given, may postpone an action on a policy indefinitely by failure to make a written request for arbitration. In this case such a rule would extend the limitation about nine years. The provision for arbitration on the .policy under consideration is not in itself a condition precedent to bringing suit. To make it such a condition it must be shown that a written request therefor has been'made by one of the parties to the contract. May, Insurance, section 493, 4th Ed; Davis v. Insurance Co., 96 Iowa, 70. If a written request is not made by either party “the condition for arbitration is waived.” Nurney v. Insurance Co., 63 Mich. 633 (30 N. W. Rep. 350). The stipulation relied on by the appellant provides that no action shall be brought “unless commenced within six months next ensuing after the fire, exclusive of any time consumed in arbitration.” If arbitration was expressly waived by both parties, or if the plaintiff made a written request therefor, which was refused by the defendant, suit could be immediately brought. May, Ins., supra. This stipulation should be construed to extend the time for bringing suit only in case the arbitration had been set in motion by the written request of either party before the limitation would otherwise have expired. By making such request [20]*20within this time, the plaintiff had it in her power to either compel arbitration or a waiver thereof, and in either event fully protect herself. This she did not do, but by her own neglect let nearly nine years pass before making this request.

The provision in the policy limiting the time in which suit can be brought is valid. Harrison v. Insurance Co., 102 Iowa, 112; Read v. Insurance Co., 103 Iowa, 307. In Harrison v. Insurance Co., 112 Iowa, 77, the facts are in no way similar to the facts in this case; nor is the holding therein contrary to the views herein expressed. Plaintiff’s action is clearly barred. The judgment is affirmed.

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Related

Davis v. Anchor Mutual Fire Insurance
64 N.W. 687 (Supreme Court of Iowa, 1895)
Harrison v. Hartford Fire Insurance
47 L.R.A. 709 (Supreme Court of Iowa, 1897)
Read & Traversy v. State Insurance
103 Iowa 307 (Supreme Court of Iowa, 1897)
Harrison v. Hartford Fire Insurance
83 N.W. 820 (Supreme Court of Iowa, 1900)
Nurney v. Fireman's Fund Insurance
30 N.W. 350 (Michigan Supreme Court, 1886)

Cite This Page — Counsel Stack

Bluebook (online)
114 Iowa 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garretson-v-merchants-bankers-fire-insurance-iowa-1901.