Beckley v. Otsego County Farmers Co-op. Fire Ins. Co.
| Decision Date | 31 January 1957 |
| Parties | Stewart T. BECKLEY, Plaintiff-Appellant, v. OTSEGO COUNTY FARMERS COOPERATIVE FIRE INSURANCE COMPANY, Defendant-Respondent. Stewart T. BECKLEY, Plaintiff-Appellant, v. GLENS FALLS INSURANCE COMPANY, Defendant-Respondent. Stewart T. BECKLEY, Plaintiff-Appellant, v. NORWICH UNION FIRE INSURANCE SOCIETY, Ltd., Defendant-Respondent. Stewart T. BECKLEY, Plaintiff-Appellant, v. SCOTTISH UNION & NATIONAL INSURANCE COMPANY OF EDINBURGH, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Joseph P. Leary, Cooperstown, for plaintiff-appellant, Francis H. Anderson, Cooperstown, of counsel.
Livingston S. Latham, Unadilla, for defendant-respondent Otsego County Farmers Cooperative Fire Insurance Co.
Bliss, Bouck & Ecker, Schoharie (F. Walter Bliss, Schoharie, of counsel), for defendants-respondents Glens Falls Insurance Co., Norwich Union Fire Insurance Society, Ltd., and Scottish Union & Nat. Insurance Co. of Edinburgh.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.
The plaintiff's actions against the defendant fire insurance companies have been summarily dismissed on motion, not upon a showing that the plaintiff was not entitled to payment under the policies in the situation which existed at the time of the occurrence of the loss, but upon the ground that he had subsequently breached a condition of the policies by refusing to submit to an examination concerning the loss. This was the sole ground of the defendants' motions for summary judgment.
We have concluded that the motions for summary judgment should have been denied. It appears to us that there is a question of fact which requires resolution at a trial, as to whether plaintiff's refusal to submit to the examination was justified. Cf. Happy Hank Auction Co., Inc., v. American Eagle Fire Ins. Co., 1 N.Y.2d 534, 154 N.Y.S.2d 870.
The defendants had issued New York State Standard Fire Insurance policies covering the plaintiff's barn and contents. The policies contained the following provisions relevant to the present controversy:
'The insured, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examinations under oath by any person named by this Company, and subscribe the same * * *
'The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.
'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with.'
The barn and contents were destroyed by fire on January 5, 1954. Proofs of loss were submitted on January 12, 1954. It appears from the defendants' affidavits that within a day or two after the proofs of loss were filed, the defendants received information which led them to believe that the fire had been of incendiary origin and that the plaintiff had himself caused the fire. Ever since that time, according to defendants' own affidavits, they have resisted the payment of plaintiff's claim. Under the terms of the policies, the defendants were required to pay the loss sixty days after the submission of proofs of loss and the ascertainment of the amount of the loss. In this case, there was no question about the amount of the loss; it was apparently conceded that the loss was a total one and that the loss was in excess of the amount of the insurance policies. According to the affidavit submitted by one of the defendants, the plaintiff's attorney demanded payment upon the expiration of sixty days after the filing of the proofs of loss and the insurance company's agent advised the plaintiff's attorney a few days later, after consulting with his superiors, that payment was being 'withheld' not only by his company but by the other companies as well. Shortly thereafter, according to the plaintiff's affidavits, which for the purpose of the motion we must accept as true, the defendants 'instigated the issuance' of a warrant for the plaintiff's arrest upon a charge of arson. The plaintiff was arrested on April 10, 1954 and was held for the action of the Grand Jury.
Thereafter, on May 7, 1954 the defendants served for the first time a demand that the plaintiff submit to examination pursuant to the terms of the policy. The plaintiff's attorney appeared on the adjourned date fixed for the examination and served a statement in writing explaining the reasons for the plaintiff's refusal to submit to examination. He took the position that the companies had breached the policies by failing to make payment within sixty days and that the plaintiff was therefore relieved of any obligation to comply with the conditions of the policies on his part to be performed.
Subsequently, the plaintiff was indicted for arson and he was ultimately brought to trial. He took the stand upon the trial and was examined and cross-examined with respect to the origin of the fire. The jury disagreed and, on motion of the District Attorney, the indictment was dismissed.
Thereafter, actions were instituted against the defendants on the insurance policies and they interposed answers setting up the defense, among others, that the fire had been willfully caused by the plaintiff. They also set up the defense that the plaintiff had willfully failed to comply with the condition of the insurance policies requiring him to submit to examination and upon the basis of that defense the defendants moved for summary judgment.
It appears from the affidavits submitted by the defendants upon the motion for summary judgment that they had resisted payment of the plaintiff's claim from the beginning upon the ground that they had reason to believe that the plaintiff had himself caused the fire. Thus it is stated in the affidavit of the attorney for one of the defendants that '[T]he defendant...
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