Judge v. Celina Mutual Insurance

449 A.2d 658, 303 Pa. Super. 221, 1982 Pa. Super. LEXIS 4928
CourtSupreme Court of Pennsylvania
DecidedAugust 13, 1982
Docket502 and 503
StatusPublished
Cited by19 cases

This text of 449 A.2d 658 (Judge v. Celina Mutual Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Judge v. Celina Mutual Insurance, 449 A.2d 658, 303 Pa. Super. 221, 1982 Pa. Super. LEXIS 4928 (Pa. 1982).

Opinions

BROSKY, Judge:

This appeal arises out of a suit filed by Franklin W. Judge against his insurance company, Celina Mutual Insurance Company (Insurance Company), concerning the Insurance Company’s liability to Judge under an insurance policy purchased by Judge to protect himself from loss due to fire on property he owned in Stroudsburg, Pennsylvania. The lower court entered a verdict in favor of Judge in the amount of $23,500. Judge filed exceptions claiming that the damages awarded were too small. The trial court, sitting en banc, dismissed the exceptions. This appeal followed in which Judge complains that the damages awarded were inadequate. The Insurance Company has filed also an appeal in which it asserts that Judge should have been precluded from recovery because he failed to file a proof of loss form according to the policy’s requirements, that he failed to adequately protect the damaged property, that Judge’s expert witness was not qualified, and that the Insurance Company should have been permitted to offset damages through a defense of salvage value. We reverse and remand in the Judge’s appeal and affirm in the Insurance Company’s appeal.

Judge was a tenant in a building which was completely destroyed by fire on November 27, 1977. Judge owned a restaurant in the building where he sold pizza. The restaurant was operated by Ronald Joachim, Judge’s brother-in-law, from whom Judge purchased the business and equipment in 1977 for $45,000. Judge was a full-time bus driver in New York City, New York at the time of the fire. Judge became aware of the fire shortly after it occurred. He notified the Insurance Company immediately thereafter. [224]*224The Insurance Company then engaged an adjuster, Claude Martin Company, to adjust the loss. Judge and Joachim contacted William Dagger, an employee of Claude Martin Company. Dagger eventually gave Judge an inventory form and requested him to prepare an inventory of the damages and to return the form to him. Dagger told Judge that he would not hold him to the 60-day limitation in the policy for filing a proof of loss form. Judge mailed the form to Dagger on February 7, 1978.1

Dagger visited the burned-out building three days after the fire occurred and on eleven subsequent occasions. The trial court reviewed the evidence produced by the parties and determined that the insured property was a total loss. The Insurance Company never submitted any evidence about the salvage value, if any, of the property. Judge presented evidence as to the value of his lost property in the form of testimony of Ronald Joachim. Joachim was shown to be familiar with the pizza-selling business. He was shown to be schooled in the value of pizza making equipment. He was very familiar with this business, having formerly owned it and being' the current operator.

The record indicates that the property was boarded up from the date of the fire until March or April of 1978. There is no evidence of any pilferage or vandalism occurring on the property. As we stated, Dagger was able to inspect the damage on twelve occasions. He never testified that the property was not secured properly.

The record reveals that the original cost of the equipment used in the business was $23,692.04. Judge testified that of the $45,000 purchase price that $25,000 was allocated to the purchase of the equipment. Joachim testified that [225]*225the value of the equipment had appreciated, raising its current value to $33,073. Judge also stated that the value of supplies lost in the fire was $3,500. Joachim testified further that when he sold the business to Judge he had expended $8,000 on improvements on the property. Judge, who was the tenant at the time of the fire, had not made any further improvements, but presumably the cost of these improvements was included in the $45,000 purchase price he had paid Joachim.2 The lower court held that as the policy only covered improvements made by the tenant, that Judge was not covered for the $8,000 in improvements. The court decided that the “actual cash value” of the equipment was $20,000. It awarded damages of $23,500. The value of the lost equipment and lost supplies.

The Insurance Company asserts that Judge should be barred from recovery because of his failure to file a proof of loss form within 60 days of the fire. In Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977), our Supreme Court held that a delay in notification of loss will be excused if there has not been a lack of due diligence. The court also required that the Insurance Company prove that it was prejudiced by the delay if it is to be relieved of liability. While we believe this principle is applicable to the failure of Judge to file a proof of loss statement within 60 days, the Insurance Company, clearly, has not been prejudiced. It had ample opportunity to inspect the burned building. It was told that the loss was total and Judge provided it with a statement of what equipment was in the building, mailed within 72 days.

Next, the Insurance Company claims that the property was not adequately secured after the fire. This contention is not supported by the record. The building was locked and boarded up for six to seven months after the fire. The [226]*226insured is only required to secure the insured premises for a reasonable length of time so that the insurer can check them. The insured is not obliged to secure the property for an indefinite period of time. Obviously, in the instant case, the insured property was secured for a reasonable length of time. The insurer’s adjuster was able to inspect the premises twelve times. The record gives no indication that the property was not secure for a reasonable period of time. Cf.: Isaac et al. v. Donegal and Conoy Mutual Fire Insurance Company, 308 Pa. 439, 162 A. 300 (1932).

The Insurance Company claims that it should have been able to avoid liability at least in part because of the salvage value of the property. The defense of salvage value arises from the insurance contract and, as such, is an affirmative defense which must be properly pleaded in new matter. Matthews v. Malloy, 217 Pa. Super. 338, 272 A.2d 226 (1970). An affirmative defense not properly pleaded is waived. Pa.R.C.P. 1030. The Insurance Company has waived this contention.

Judge asserts that the damages assessed in this case aré incorrect. He claims he should be permitted significantly higher damages. The trial court stated in its opinion that:

The plaintiff’s testimony is that the supplies destroyed by the fire were valued at $3,500. This testimony is not disputed and we have no basis on which to reject this figure. It does not appear to be unreasonable. We know that the bulk of the insured property when new, cost $23,692.04 and that it was five years old. We further know that some eleven months before the fire the Plaintiff testified that he paid $25,000.00 for it, which price included some additional equipment which Joachim purchased after he bought the pizza restaurant from Pappas. We further are aware that at the time of the fire second hand equipment had, due to inflation, a strong market at high prices. We further are aware that the Appellate Courts have often stated that the actual cash value of the insured property is the measure of damage and not its [227]*227market value.

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Judge v. Celina Mutual Insurance
449 A.2d 658 (Supreme Court of Pennsylvania, 1982)

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Bluebook (online)
449 A.2d 658, 303 Pa. Super. 221, 1982 Pa. Super. LEXIS 4928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judge-v-celina-mutual-insurance-pa-1982.