Juker v. American Livestock Insurance

637 P.2d 792, 102 Idaho 644, 1981 Ida. LEXIS 392

• Court: Idaho Supreme Court
• Decided: November 23, 1981
• Docket: 13280
• Status: Published

Opinions

DONALDSON, Justice.

This is an appeal from a summary judgment in an action brought by plaintiff-respondent Juker against defendant-appellant American Livestock Insurance Company to establish liability on a livestock mortality policy issued to insure a racehorse. Summary judgment was granted in favor of respondent Juker. We reverse and remand with directions that summary judgment be granted in favor of appellant insurance company.

The insurance company issued the policy to insure against loss through death of the racehorse occurring while the policy was in force. Approximately twelve days before coverage under the policy expired, the racehorse sustained severe injury, a slab fracture of the left front knee. Approximately four days after expiration of the policy, Juker telephoned the insurance company and reported the injury. Subsequently, the insurance company, through telephone conversation and written correspondence, contacted the attending veterinarian who apprised the company of the horse’s condition. Approximately 80 days after expiration of the policy, the veterinarian further corresponded with the insurance company specifically advising that the horse be euthanized for humane reasons.

The insurance company did not consent to the euthanasia but, rather, denied coverage for the expected loss of the racehorse primarily upon the basis that there had been no loss through death during the policy period. Juker, in response, initiated proceedings in the district court seeking coverage. Summary judgment was directed in favor of Juker. The insurance company appeals.

In construing an insurance contract, the rule in Idaho is that intent is to be determined from the language of the contract itself and in the absence of ambiguity, the contract must be construed as any other and understood in its plain, ordinary and proper sense, according to the meaning derived from the plain wording of the contract. Casey v. Highlands Insurance Co., 100 Idaho 505, 600 P.2d 1387 (1979); Corgatelli v. Globe Life & Accident Insurance Co., 96 Idaho 616, 533 P.2d 737 (1975) (Donaldson, J., dissenting opinion).

The insurance contract in the instant case clearly provides insurance against loss through death of the racehorse occurring while the policy is in force, resulting from natural causes or illness or disease or accident, subject, however, to the pertinent exclusion that there is no coverage for intentional slaughter of the insured animal unless with the consent of the insurance' company. Review of the record discloses that there was no loss through death during the policy period, either through intentional slaughter or otherwise.

The policy plainly and unambiguously sets forth its terms of coverage and its termination date. No extension of policy period is provided. The plain wording of the policy controls. There has been no covered loss during the policy period; there can be no recovery. Casey v. Highlands Insurance Co., supra; Leach v. Eureka Life Insurance Co., 580 S.W.2d 628 (Tex.Civ.App.1979); Underwriters at Lloyds, London v. Harkins, 427 S.W.2d 659 (Tex.Civ.App.1968).

Accordingly, we reverse the order of the district court and remand with directions that summary judgment be entered in favor of defendant-appellant American Livestock Insurance Company. Although appellant made no motion for summary judgment, where one party moves for summary judgment and the other is entitled to it, the court may grant summary judgment in favor of the non-moving party. Just’s, Inc. v. Arrington Construction Company, Inc., 99 Idaho 462, 476, 583 P.2d 997, 1011 (1978) (on denial of petition for rehearing). Appellant did assert the defense of failure to state a claim, I.R.C.P. 12(b), and prayed for dismissal of all claims against it. Additionally, following plaintiff-respondent’s motion for summary judgment, both parties submitted affidavits and made oral argument. Both sides had adequate opportunity to show whether a genuine issue existed. Such presents appropriate circumstance for the district court to properly grant summary judgment to appellant. See Just’s, Inc. v. Arrington Construction Company, Inc., supra; Idaho State University v. Mitchell, 97 Idaho 724, 733, 552 P.2d 776, 785 (1976); Glenn Dale Ranches, Inc. v. Shaub, 94 Idaho 585, 587 n. 4, 494 P.2d 1029, 1031 n. 4 (1972); 10 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2720 (1973).

Reversed and remanded.

BAKES, C. J., and McFADDEN, J., concur.