Aycock v. Republic Ins. Co.

• Decision Date: 25 November 1959
• Docket Number: No. 9049,9049
• Citation: 116 So.2d 317,74 A.L.R.2d 1267
• Parties: Lavelle W. AYCOCK, Plaintiff-Appellant, v. REPUBLIC INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 317

116 So.2d 317

74 A.L.R.2d 1267

Lavelle W. AYCOCK, Plaintiff-Appellant, v. REPUBLIC INSURANCE COMPANY et al., Defendants-Appellees.

No. 9049.

Court of Appeal of Louisiana, Second Circuit.

Nov. 25, 1959.

Rehearing Denied Dec. 22, 1959.

Certiorari Denied Feb. 15, 1960.

Holloway & Baker, Jonesboro, for appellant.

Theus, Grisham, Davis & Leigh, Monroe, for appellees.

HARDY, Judge.

This is an action by plaintiff against the defendant insurer for recovery of the sum of $5,150 alleged to be the amount of loss sustained by plaintiff insured as the result of a fire which partially destroyed the insured dwelling. Plaintiff further claimed the statutory penalties of 12% Of the amount due and reasonable attorney's fees of no loss than $1,500. From judgment rejecting plaintiff's demands he appeals.

The pertinent and material factual circumstances are undisputed and may be related in chronological order as follows:

On May 26, 1957, a fire partially destroyed plaintiff's home residence, which was insured against such risk by the defendant; notice of the fire and loss sustained was communicated to a representative of the defendant company within some two or three days following the fire, and this agent of the defendant insured advised plaintiff to procure not less than three estimates and bids for the cost of repair to the insured building; the estimates and bids for the necessary repairs were promptly procured by plaintiff and submitted to defendant's said agent within a period of some week or ten days. The lowest bid was submitted by C. C. Tarpley in the sum of $3,801.75 under date of August 19, 1957, defendant's adjuster transmitted to plaintiff a formal proof of loss in the amount fixed by the Tarpley estimate and requested the signatures of plaintiff and his wife before a notary; the proof of loss as prepared by defendant was subscribed by plaintiff and his wife, duly notarized on August 23, 1957, and returned to defendant's representative; under date of September 17, 1957, defendant's draft in the sum of $3,801.75, in settlement of the fire loss of May 26, 1957, was transmitted to plaintiff; on September 23, 1957, C. C. Tarpley informed plaintiff, in writing, that it would be impossible for him to perform the necessary repairs for the amount fixed in his original bid due to weather damage to the insured dwelling and the rise in costs of material and labor, and submitted a new bid, specifically limited to 30 days, in the sum of.$4,961.30; under date of September 26, 1957, plaintiff's attorneys advised defendant's adjuster, by written communication, that defendant's draft in the sum of $3,801.75 would not be accepted in full settlement of the loss, the cost of which had been re-estimated at $4,900, and that unless the matter was settled within a reasonable time, suit would be instituted for recovery of the amount of the loss, together with statutory penalties and attorney's fees; apparently defendant refused to make any re-adjustment and this suit was instituted on January 4, 1958; finally, by stipulation of counsel, sometime in or about the month of March, 1958, defendant's draft, in the sum of $3,801.75, was released to plaintiff, without prejudice to the rights of either party.

On the basis of the above recital of facts it is obvious that the statutory penalty provided by LSA-R.S. 22:658 is not applicable, inasmuch as payment was tendered by defendant on September 17, 1958, following filing of proofs of loss by plaintiff on or about August 23rd, and, therefore, there was no failure to make payment in accordance with the wording of the statute, '* * * within sixty days after receipt of such proofs * * *.'

While it appears that there was an unseemly delay in furnishing the proofs of loss, which delay is not satisfactorily explained by evidence properly established on trial, it must be noted that LSA-R.S. 22:650 provides that it is the obligation of the insurer to furnish forms for proof of loss '* * * upon written request of any person claiming to have a loss under any insurance contract.' The record is devoid of any showing that plaintiff made any demand, written or otherwise, for proof of loss forms, and, indeed, the record does not evidence a showing of any demand of any nature until after tender of payment on the basis of the low bid submitted shortly after the occurrence of the fire loss.

For the reasons above stated, we think it clear that plaintiff's right to recovery, if any, in the instant case must be limited to the alleged increase in the cost of repairs, which increase was necessitated by circumstances occurring subsequent to the fire but prior to defendant's tender of settlement.

It is urged, by way of defense, that plaintiff is not entitled to recover for weather damage to the exposed portions of the insured dwelling since he was under both the contractual obligation, specified in the policy, to protect the building from further damage, and the legal obligation to minimize the damage. Defendant further contends that under the policy it is liable to plaintiff only to the extent of the...