Grice v. Aetna Cas. & Sur. Co.

359 So. 2d 1288, 1978 La. LEXIS 5340
CourtSupreme Court of Louisiana
DecidedJune 19, 1978
Docket61566
StatusPublished
Cited by18 cases

This text of 359 So. 2d 1288 (Grice v. Aetna Cas. & Sur. Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grice v. Aetna Cas. & Sur. Co., 359 So. 2d 1288, 1978 La. LEXIS 5340 (La. 1978).

Opinion

359 So.2d 1288 (1978)

Dorothy Sellers GRICE
v.
AETNA CASUALTY AND SURETY COMPANY.

No. 61566.

Supreme Court of Louisiana.

June 19, 1978.

Lawrence J. Duplass, New Orleans, for defendant-applicant.

Floyd J. Reed, Bruce G. Reed, Reed, Reed & D'Antonio, Metairie, for plaintiff-respondent.

SUMMERS, Justice.

Plaintiff Dorothy Sellers Grice instituted suit on September 12, 1974 against Aetna Casualty and Surety Company claiming loss *1289 under a policy of burglary and theft insurance. Therein she alleges that on January 31, 1973 her home was burglarized, damage was done to her house, and coins, jewelry, fur and a television set were stolen. She alleged that Aetna was notified but no effort has been made to reimburse her for the loss. For this failure of Aetna she asserts she is also entitled to penalties and attorneys' fees.

To this petition Aetna filed an exception of prescription on October 3, 1974 contending that the "cause of action" alleged by plaintiff occurred more than one year prior to commencement of suit, and the claim is barred by the prescription of one year. On March 19, 1976 the trial judge dismissed the exception.

Thereafter, on April 6, 1976, Aetna filed a motion for summary judgment on the ground that the pleadings, admissions and evidence on file in the proceedings showed no genuine issue of material fact. Then, on April 20, 1976, Aetna filed the affidavit of its claims representative Paul J. Dussang in which he attested that he was familiar with plaintiff's claim; that on May 30, 1973 she had in full force and effect a policy with Aetna; that after the loss of January 31, 1973 a proof of loss form was forwarded to plaintiff but was never returned; and that there were no negotiations on this claim from August 1973 until March 20, 1974 when plaintiff requested payment pursuant to the policy. A copy of the policy was attached to the affidavit.

Although not marked filed, plaintiff's May 20, 1976 affidavit is the next pertinent document in the record. Therein she denies that she knew Dussang, or that he was the claims representative of Aetna, or that he was its claims representative at any time pertinent to this suit. She also denied that he forwarded proof of loss forms in connection with her claim.

The motion for summary judgment was heard on May 21, 1976. Relying on Gremillion v. Travelers Insurance Co., 256 La. 974, 240 So.2d 727 (1970), and Gambino Industries, Inc. v. Securities Insurance Company of Hartford, 333 So.2d 759 (La.App.1976), the trial judge granted the motion for summary judgment on June 16, 1976. On appeal to the Fourth Circuit the judgment was reversed. The Court of Appeal held that, under Section 629 of Title 22 of the Revised Statute, the clause in the fire policy limiting the time for filing suit was null and void with respect to the burglary and theft coverage in the homeowners policy because the time for filing suit was actually less than one year. Finding no valid clause setting forth the time for filing suit in the policy, the court held that the prescription applicable to the loss by theft was the ten-year prescription provided for suit on contracts according to Article 3544 of the Civil Code. 353 So.2d 401 (La.App.1978). Certiorari was granted on Aetna's application to review the Court of Appeal judgment. La., 355 So.2d 267.

The form of the standard fire policy is mandatory under Louisiana's Insurance Code. Its provisions are spelled out in detail by the legislature. The following clause is part of the standard fire policy; as such it is part of the State's statutory law:

"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after the inception of the loss." La.Rev.Stat. 22:691F(2)

Aetna contends that this prescriptive provision is applicable to the homeowners policy, a contract used in connection with the standard fire insurance policy in the case at bar. The homeowners policy insures against burglary and theft and provides other coverages in addition to the perils of fire and lightning covered by the standard fire insurance policy. To support its position Aetna relies upon Section 691E of the Insurance Code wherein it is stated:

"Appropriate forms of other contracts or endorsements whereby the interest in *1290 the property described in such policy shall be insured against one or more of the perils which the insurer is empowered to assume, in addition to the perils covered by said standard fire insurance policy, may be approved and may, unless at anytime disapproved by the fire insurance division, be used in connection with a standard fire insurance policy and such forms may contain provisions and stipulations inconsistent with the standard policy if applicable only to such other perils.
"Any policy or contract otherwise subject to the provisions of subsections A and B hereof, which includes either on an unspecified basis as to the coverage or for a single premium, coverage against the peril of fire and substantial coverage against other perils need not comply with the provisions of Subsections A and B hereof, provided . . . ." La.Rev. Stat. 22:691E.

If Aetna's position is sound, plaintiff's suit, filed 19½ months after the loss, is prescribed.

Plaintiff, on the other hand, contends that the prescriptive clause contained in the standard fire policy to which Aetna's homeowners policy is attached, insofar as the burglary and theft coverage is concerned, is in reality a limitation of the right of action against the insurer to a period of less than one year from the time when the cause of action accrues. This reduction of the time limitation for filing suit to less than one year is said to result from the provision of the standard fire policy to the effect that suit may not be instituted and payment for the loss is not enforceable until at least sixty days after the loss. By this requirement the insured must wait sixty days during the one-year period before suit can be filed, thereby reducing the time for suit to ten months. La.Rev.Stat. 22:691F(2). Such a limitation, while specifically authorized by the legislature with respect to the standard fire policy, is, according to the plaintiff, null and void when applied to the burglary and theft coverage of a homeowners policy used in connection with a standard fire policy. To support this position plaintiff refers to Section 629A(3) and B of the Insurance Code:

"A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement:
. . . . .
(3) Limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.
B.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hood v. Cotter
5 So. 3d 819 (Supreme Court of Louisiana, 2008)
Landry v. LOUISIANA CITIZENS PROPERTY INS.
983 So. 2d 66 (Supreme Court of Louisiana, 2008)
Chauvin v. State Farm Fire & Casualty Co.
450 F. Supp. 2d 660 (E.D. Louisiana, 2006)
Feltus v. Allstate Insurance Co.
737 So. 2d 272 (Louisiana Court of Appeal, 1999)
Wagner v. Meeks
730 So. 2d 1058 (Louisiana Court of Appeal, 1999)
Wagnon v. State Farm Fire & Casualty Co.
1997 OK 160 (Supreme Court of Oklahoma, 1998)
DeGeorge v. ALLSTATE CO.
631 So. 2d 1257 (Louisiana Court of Appeal, 1994)
Beazor-Williams v. St. Paul Fire & Marine
598 So. 2d 1249 (Louisiana Court of Appeal, 1992)
John E. Washington v. Allstate Insurance Company
901 F.2d 1281 (Fifth Circuit, 1990)
De Francesch v. R. PETERSON AND ASSOCIATES INS.
508 So. 2d 1014 (Louisiana Court of Appeal, 1987)
Frederick v. Aetna Life & Cas. Co.
467 So. 2d 600 (Louisiana Court of Appeal, 1985)
Richardson v. LOUISIANA FARM BUREAU, ETC.
393 So. 2d 200 (Louisiana Court of Appeal, 1981)
Louette v. Security Indus. Ins. Co.
361 So. 2d 1348 (Louisiana Court of Appeal, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
359 So. 2d 1288, 1978 La. LEXIS 5340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grice-v-aetna-cas-sur-co-la-1978.