Monteleone v. Seaboard Fire & Marine Insurance

7 Teiss. 247, 1910 La. App. LEXIS 38

• Court: Louisiana Court of Appeal
• Decided: March 7, 1910
• Docket: No. 4842
• Status: Published

Opinions

DUFOUR, J.

‘Plaintiff sues to recover a total loss by fire on October 12, 1908, of household effects, covered by a policy of insurance for $1,000, issued by defendant on April 14, 1908, and prays for judgment for the face of the policy, together with the attorney’s fees and damages authorized to be recovered by Act No. 168 of 1908.

The answer, after setting up a failure to submit proofs of loss, denies liability on tbe grounds that the loss was caused by an explosion which preceded the fire and that the building containing the property fell previous to the fire, in consequence of which, insurance ceased under the express terms of the policy.

There is conflict of evidence as to whether proofs of loss were furnished. It appears, however, that defendant tendered plaintiff, for signature, a non-waiver agreement, which the latter refused to sign, whereupon defendant notified him it would have nothing more to do with the loss or its adjustment.

This unauthorized and unwarranted withdrawal by the insurer was equivalent to a denial of liability and waived the requirement of the policy with respect to the necessity of furnishing proofs of loss.

113 La. 1053.

It is unnecessary to inquire whether the explosion did or did not precede the fire; it was sufficient to say that the only result to the building was the throwing from their bearings of a few doors and windows, and that the uncontradicted testimony of plaintiff is to the effect that the damage suffered was due exclusively to the fire. This is sufficient to show that the explosion had nothing to do with the loss.

The value of the property destroyed is undisputed and exceeds the amount of insurance, and, upon the facts of the case, the plaintiff is entitled to judgment for the full amount of the policy, and to the other damages unless the legal defense interposed is well founded.

This defense is that the provisions of Act 168 of 1908 allowing attorney’s fees and 12% damages to be recovered by plaintiff from any insurer failing to reasonably settle any just loss, are not retroactive so as to apply to policies issued prior to the enactment, and, even if intended to be so, they are void as impairing the obligation of the contract.

No other feature of the act is attacked- and no other ground of unconstitutionality is suggested.

The only questions to be considered therefore are:

1. Is the statute constitutional?

2. Is it retroactive in its operation?

The right of the Legislature to enact statutes of this character may not be disputed; if they are remedial and effect the enforcement only and not the substance of the contract, they constitute a valid exercise of legislative authority and are a declaration of the public policy of the State.

They may change the remedy, or the mode of enforcement of the contract, or the penalties attending the breach of a contract already in existence without impairing its obligations, unless such remedy or penalty actually forms part of the contract itself.

To carry out their purposes, such statutes must be liberally construed and may properly be retroactive in their operation.

76 N. W. 1072; 189 N. S. 301; Sutherland on Statutory Damages, Vol. II, pp. 643-1073; Cooley on Constitutional Limitations (7th Ed.), p. 410; 76 N. W. 1072.

Passing now to the jurisprudence of our own State, we find that it is broader than that of other jurisdictions in respect to the interpretation to be placed on remedial laws.

In Scott vs. Duke, 3 An. 253, the Supreme Court said:

“The distinction between laws impairing the obligation and laws modifying the remedy given by the Legislature to enforce the obligation, was fully .recognized by Judge Marsh in the case of Sturges vs. Commonwealth, 4 Wheat. 200. * * * Laws regulating the form of judicial proceedings are remedial laws, and that form depends upon the law in force at the time the proceedings were instituted, without regard to the law at- the time of occurrence of the facts upon which they are based. It may even vary, and, in fact, does vary, if before the final decision a new law intervenes which changes the form, unless that law expressly declares that the pre-existing form shall continue to be followed in the cases then pending.”

In Cassard vs. Tracy, 52 An. 856, after citing that and many other cases, Blanchard, J., said:

“The rule that the terms of a statute or constitution are not to be interpreted as having a retrospective or retroactive operation, unless the language used plainly conveys that intention and is susceptible of no other interpretation, finds no application to remedial statutes or to the remedial provisions of organic laws. Remedial laws are an exception to the general rule, and may have retroactive or retrospective force.”

Let us now examine the act in the light of the foregoing cases.

Section 1 makes it the duty of the fire insurance companies to furnish blank proofs of loss to the assured, “whenever any loss or damage shall be suffered in this State from fire.” Section 2 declares that the failure to furnish blanks will be considered as a waiver of proofs of loss “in case of loss or damage by fire as provided in the preceding section.”

Section 4 provides that the insurance companies shall deliver to the insured, with each policy issued, a copy of this act.

We need not inquire whether or not those sections of the enactment are retroactive; they are not involved in this controversy which rests exclusively on the provisions of Section 3, which alone contains the provisions herein objected to.

Conceding, arguendo, that some of them are intended to be prospective only in their operation, we see no reason why a law may not be properly prospective in some respects, and retrospective in others.

Section 3 of the act, so far as pertinent, reads as follows :

‘ ‘ That whenever any loss or damage shall be suffered in this State from fire by any person, firm or corporation upon property insured under a policy of insurance of any fire insurance company doing business in this State, it shall be the duty of the fire insurance company that has issued the policy or policies upon receipt of proofs of loss from the assured, to pay the amount due under its policy or policies, within sixty days thereafter. * * *

“And should the company fail to pay, within said time the amount due the insured under the policy after demand made therefor, such company shall be liable to pay the holder or holders, of such policy, in addition to the amount of the loss, twelve per cent, damages on the total amount of the loss * * * together with all reasonable attorney’s fees for the prosecution and collection of such loss.”

The text of this section refers to loss or damage which shall be suffered, not to policies which shall be issued; it makes no distinction between losses occurring under policies ¿lready issued and those occurring under policies to be issued thereafter.

Had the Legislature intended to restrict the operation •of the remedy to losses arising under policies to be issued after the passage of the statute, it would have said so.

March 7, 1910.

Under the authorities cited, it is clear that we must construe Section 3 of Act 168 of 1908 as applying to policies issued before its enactment as well as to those issued after it.

Counsel for defendant admits that, if the attorney’s fees are exigible, the liquidated damages also are, and in this respect the judgment must be amended.

The judgment is amended by adding thereto the amount of one hundred and twenty dollars ($120) as liquidated damages, and, as amended, the judgment is affirmed.