Dubuque Fire & Marine Ins. Co. v. Reynolds Co.

• Decision Date: 30 June 1942
• Docket Number: No. 9887.,9887.
• Citation: 128 F.2d 665
• Parties: DUBUQUE FIRE & MARINE INS. CO. v. REYNOLDS CO., Inc., et al.
• Court: U.S. Court of Appeals — Fifth Circuit

128 F.2d 665 (1942)

DUBUQUE FIRE & MARINE INS. CO. v. REYNOLDS CO., Inc., et al.

No. 9887.

Circuit Court of Appeals, Fifth Circuit.

June 3, 1942.

Rehearing Denied June 30, 1942.

Newton Gresham, of Houston, Tex., for appellant.

K. W. Denman, of Lufkin, Tex., and Austin Y. Bryan, Jr., of Houston, Tex., for appellees.

Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

Reynolds Company, Inc., a Texas corporation, owns and operates retail variety stores located in Texas and Louisiana. Between April 22 and November 26, 1939, Dubuque Fire & Marine Insurance Company issued four policies of fire insurance aggregating $7,200 and covering the merchandise and fixtures of the Reynolds store located at Goose Creek, Texas. Each policy was for a term of one year, and was written on the Texas standard form which contained a provision that the policy was to be void "if the insured now has or shall hereafter make any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." A special form attached to each policy contained this further provision: "It is understood and agreed that no other fire insurance is permitted, unless the total amount allowed, including this Policy, is entered in blank space in paragraph next above."

In September, 1939, Reynolds Company secured a blanket policy of fire insurance for all its stores from the Home Insurance Company of New York. Home Insurance Company was fully advised of the Dubuque coverage of the store in Goose Creek, and accordingly it was understood and agreed by the contracting parties that as to the Goose Creek store the Home policy would only operate as monthly reporting form "excess insurance" until after the expiration of the outstanding Dubuque policies. Applicable to the situation existing at the Goose Creek store, the Home policy provided that it would "not attach to or become insurance against any hazard upon property" until the specific insurance had become exhausted, and that it would then operate to "cover only such loss or damage as may exceed the amount due from such specific insurance." Dubuque was not advised of the issuance of the Home policy.

On January 6, 1940, the Goose Creek store was damaged by fire, and Reynolds Company sustained a loss of $4,483. At the time of the fire the value of the merchandise and fixtures at the store did not exceed $7,200, the aggregate amount of the Dubuque policies. Both the Dubuque and Home insurance companies refused to indemnify Reynolds Company for its loss, and suit was thereupon brought against them. After a trial without a jury, the court made findings of fact and conclusions of law, and entered judgment against Dubuque for the full amount of the loss and exonerated Home Insurance Company from liability.

It is without dispute that the Dubuque policies were for specific insurance on the merchandise and fixtures at the Goose Creek store; that the Home policy was a floating policy for "excess insurance" at this location; and that before any liability would accrue under the Home policy, the Dubuque policies of specific insurance, if valid and subsisting, would have to be exhausted. Decision of this appeal turns, therefore, upon the question of whether or not the "excess insurance" coverage for the Goose Creek store provided by the Home policy constituted "other insurance" within the inhibition of the forfeiture provision of the appellant's policies.

Clauses forbidding other concurrent insurance are not uncommon in fire insurance policies; and the validity of the "other insurance" provision of the Texas standard form policy is not questioned. Such provisions must be construed, interpreted, and applied according to their terms and obvious import. The well-known and evident purpose of such "other insurance" conditions in policies is to avoid and guard against the moral hazards and attendant temptations to fraud which might be reasonably expected to arise out of the existence of undisclosed concurrent policies of insurance having identity of scope and of subject matter. The thing sought to be prevented is double, concurrent, or overinsurance upon the same property, at the same time, and against the same risk — a situation in which a fire might be profitable to the insured. Couch Encyclopedia of Insurance Law, § 1041; 24 Tex.Jur. p. 1011, § 222; Boatner v. Providence-Washington Ins. Co., Tex.Com.App., 241 S.W. 136; British-American Assurance Co. v. Mid-Continent Life Ins. Co., Tex.Com.App., 37 S.W.2d 742.

The value of the fixtures and stock on hand at the Goose Creek store fluctuated from month to month. The Home policy was so written as to take care of periods, if any, when the value of the merchandise and fixtures exceeded the specific coverage of the Dubuque policies. It did not constitute concurrent "other insurance" upon the same property covered by the Dubuque policies, for it only took hold and commenced to cover where the Dubuque policies left off. In no event could...