Reilly-Benton Co., Inc. v. Liberty Mutual Ins. Co.

278 So. 2d 24
CourtSupreme Court of Louisiana
DecidedMay 7, 1973
Docket52518
StatusPublished
Cited by13 cases

This text of 278 So. 2d 24 (Reilly-Benton Co., Inc. v. Liberty Mutual Ins. 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
Reilly-Benton Co., Inc. v. Liberty Mutual Ins. Co., 278 So. 2d 24 (La. 1973).

Opinion

278 So.2d 24 (1973)

REILLY-BENTON COMPANY, INC. and the Peabody Corporation, Plaintiffs-Appellants-Applicants,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee-Respondent.

No. 52518.

Supreme Court of Louisiana.

May 7, 1973.

Deutsch, Kerrigan & Stiles, Frank J. Peragine, James A. Burton, New Orleans, for plaintiffs-applicants.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James R. Murrell, III, New Orleans, for defendant-respondent.

CALOGERO, Justice.

Reilly-Benton, Inc. and an allied company, The Peabody Corporation filed this lawsuit seeking to recover $13,066.08, being the unpaid portion of a fire loss to furniture, fixtures, and an inventory of mercantile stock stored in a warehouse located in Baton Rouge and insured under a Special Multi-Peril Insurance policy by the defendant, Liberty Mutual Ins. Co.[1] Invoking a penalty provision of the policy, the defendant had paid only $44,683.01 of the actual $57,749.00 loss incurred.

Reilly-Benton Co., Inc., is a Louisiana corporation with its principal place of business and corporate headquarters located on Tchoupitoulas Street in New Orleans. At the time of the fire, Reilly-Benton operated two warehouses on Tchoupitoulas Street and one on Sorrell Street in Baton Rouge, Louisiana. From the Baton Rouge location as well as those in New Orleans, Reilly-Benton sells construction and maintenance supplies such as insulation, duct work and air conditioning filters. In addition to warehousing goods for sale, the Baton *25 Rouge location maintains a sales office.

The Peabody Corporation is owned by Howard Peabody and is domiciled in Maryland. Its Louisiana operation is housed in the same Baton Rouge warehouse as Reilly-Benton and its operation is entirely under the supervision and control of Reilly-Benton. In his testimony, Reilly-Benton comptroller Milton L. Bauer stated that these services were rendered to Peabody Corporation pursuant to a written agreement for a stipulated fee. The agreement includes maintaining the inventory and books of Peabody in Louisiana and rendering quarterly and yearly accounting to Peabody. The Peabody Corporation's inventory was physically segregated from Reilly-Benton at the time of the fire but was stored in the same warehouse.

On April 20, 1972 Reilly-Benton and Peabody had in effect with the defendant insurer a Multi-Peril insurance policy which provided, among other things, coverage for fire loss of their merchandise at the Baton Rouge warehouse. On that date a fire occurred at the Baton Rouge warehouse, substantially damaging all of the merchandise of Reilly-Benton and Peabody.

The plaintiffs made a claim under the aforementioned policy for the actual cash value of the merchandise destroyed in the fire. The defendant insurer invoked a penalty povision of the policy and paid all but $13,066.08 of the loss, the amount being the alleged penalty for undervaluing of inventory by Reilly-Benton and Peabody.

The pertinent policy provisions relative to fluctuating stock inventories (as the plaintiffs maintained in their warehouse), and comprising what is commonly referred to as a "monthly reporting policy," are found in that part of the policy entitled "Reporting Endorsement—Specific Rate, Coverage B—personal property only."[2] (see footnote for policy provisions)

*26 In order to fully comprehend the operation and purpose of a value reporting policy as is involved here and more importantly the penalty provisions thereof the reader is referred to the following quotation from Camilla Feed Mills v. St. Paul Fire and Marine Ins. Co., 177 F.2d 746, 747 (5th Cir. 1949) in which a similar policy was at issue.

"The policy involved in this case was intended to offer to the owners of fluctuating businesses the opportunity of full insurance coverage while at the same time exacting from the insured only the amount of premiums figured on the average monthly amount of reported inventory. Thus the owner of a stock of goods that would fluctuate from $1000 one month to $9000 the next month could insure his property under this policy and pay a premium on the monthly average of his reported inventory, and be protected. He would not have to take out specific insurance on the stated amount of $9000 to protect his maximum or $1000 to protect his minimum. The one big obligation placed on the insured under such a policy was that he report to the company, not later than thirty days after the last day of each month, the exact value of such property covered under the policy, its exact location, and all other specific insurance in force on the same. (Emphasis ours)
". . . After the final premium was calculated from the average of the monthly reported values of inventory provided for in the policy, the insured was either given a refund if it had paid too much, or asked to pay more if it had paid too little, on the original payment of three-fourths of the premium of the limit of the liability. From such a method of computing the premium, it can easily be recognized that the insured in order to save premiums, might not correctly report the true value of his inventory. During the term of a policy, an insured could mistakenly underestimate the amount of his inventory and, if there were no loss, pay a premium based on such under-estimated amounts; and if, during the term of the policy, a loss occurred, he could simply ask the court to correct the erroneous estimate that had been made. In this way, according to [the insurer's] contentions, an insured could easily escape the payment of the correct amount of premiums where there was no loss; and in the event of a loss, he could collect the full amount of his policy by offering to pay an additional amount of premiums. In order to offset this advantage to the insured, the policy contains a provision to the effect that the liability of the insurer shall not exceed that portion of any loss sustained which the last reported value, filed prior to loss, bears to the actual value of the inventory on the date for which the report was made."

See also Peters v. Great American Ins. Co., 177 F.2d 773 (4th Cir. 1949); Federal Intermediate Credit Bank v. Globe and Rutgers Fire Ins., 7 F.Supp. 56 (D.C.1934) and Rolane Sportswear Inc. v. U. S. F. & G. Co., 407 F.2d 1091 (6th Cir. 1969).

The policy required the insured to report not later than 30 days after the last day of each calendar month, the exact location of all property covered and the total actual cash value of such property at each location.

*27 There is no contention that plaintiff had not timely complied with the reporting requirement. He did, in fact, file on a monthly basis, the appropriate form with defendant, as to location and amount, and showing for the Baton Rouge location the following values:

                         Fixture      Total
             Stock        Value       Value
January     36,442        6,300       42,742
February    36,863        6,300       43,163
March       53,235        6,300       59,535

It is to be noted that according to policy provisions relating to monthly reporting, Reilly-Benton was not required to report separately nor was there ever any distinction made between merchandise of Reilly-Benton and that of Peabody in either the Baton Rouge warehouse or the two New Orleans warehouses.

The fire took place on April 20, 1968.

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Bluebook (online)
278 So. 2d 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reilly-benton-co-inc-v-liberty-mutual-ins-co-la-1973.