Brawner v. Pearl Assurance Company

• Citation: 267 F.2d 45
• Decision Date: 18 December 1958
• Docket Number: No. 15993.,15993.
• Parties: Gertrude L. BRAWNER, Appellant, v. PEARL ASSURANCE COMPANY, Ltd., et al., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

267 F.2d 45 (1958)

Gertrude L. BRAWNER, Appellant, v. PEARL ASSURANCE COMPANY, Ltd., et al., Appellee.

No. 15993.

United States Court of Appeals Ninth Circuit.

December 18, 1958.

William H. Brawner, Ernest W. Pitney, Los Angeles, Cal., for appellant.

McBain & Morgan, Angus C. McBain, Los Angeles, Cal., for appellee.

Before FEE, BARNES and JERTBERG, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

In this case, this Court is again confronted with the confusion which follows the filing of motions for summary judgment by plaintiff and defendant, respectively. Again it is reiterated that such a situation does not parallel that where both parties file motions for directed verdict. In the latter instance, each party is held to agree that there is no disputed question of fact and that the case is to be decided on the principles of law. In contrast, by definition, a summary judgment cannot be granted if there be a disputed question of material fact. This determination does not depend upon what either or both parties may have thought about the matter.¹

In the instant case, plaintiff held a policy of fire insurance issued by Pearl Assurance Company, Ltd., upon certain buildings on a piece of real property in the City of Los Angeles, described by street address, whereby the Assurance Company agreed to indemnify plaintiff against loss by fire thereon. While plaintiff owned the real property, the buildings insured were damaged or destroyed by fire. We hold it to be self-evident that upon these admitted facts plaintiff had the burden of proving not only that she had sustained a loss, but also in what amount.

The Assurance Company agrees so far. It presented an affidavit to the trial court that the destroyed buildings had no value at all before the fire, in support of its motion that the court overrule the motion of plaintiff for summary judgment. Plaintiff contended that there was a loss and that this loss was material and entitled her to recover the face amount of the policy. The trial court was correct in refusing to grant the motion of plaintiff for summary judgment, because there was a genuine issue of material fact upon these points. For this reason, a motion for summary judgment presented by defendant should also have been overruled unless defendant could have established by uncontroverted facts that plaintiff suffered no loss. Defendant undertook to support its own motion by filing the record of condemnation proceedings brought by the County of Los Angeles upon the property upon which the insured buildings were situate before the fire, which occurred February 4, 1957. A document entitled "Statement of Issues Agreed upon for Pre-Trial Conference," dated February 15, 1957, contains the sentences: "That the date of valuation of the said property is April 4, 1956. * * * That the only issue not agreed upon is the market value of the said property as of April 4, 1956." This record further shows that on March 26, 1957, plaintiff here entered into a stipulation for judgment with the condemnor, whereby she accepted $26,400.00 as "the market value of said real property, together with any and all improvements thereon, including any and all severance damage * * * caused to other properties * * * by the taking." Thereupon, on April 5, 1957, interlocutory judgment was entered in her favor in that amount. After the payment of the money by the condemnor, title to the parcel of real property passed by force of final judgment dated April 12, 1957, to the condemnor.

The contention of the Assurance Company is that this record proves conclusively that plaintiff suffered no loss and that therefore no genuine issue of material fact remained. As noted above, the Assurance Company was not a party to this litigation. The stipulation is not necessarily binding against plaintiff and in favor of the Assurance Company. The amount accepted by plaintiff in settlement of the case does not prevent her, as a matter of law, from claiming she still suffered a loss.² The contention of the Assurance Company seems to be that plaintiff could not have suffered any loss since the full value of the property before the fire was paid by the condemnor. But plaintiff was claiming $75,000.00 in the condemnation case as the fair market value of the real property on the day before the fire.

The Assurance Company conceded that plaintiff had suffered some loss which was not covered by the payment in the condemnation case, since it admitted liability for and tendered payment for the loss of rentals from the building. It seems such an admission is entirely inconsistent with the claim that plaintiff suffered no loss. If the title to the real property passed to the County as of April 4, 1956, plaintiff would not be entitled to rentals thereon either. But it is conceded that title did not pass until the sums specified by the interlocutory judgment were paid to plaintiff by the County on April 12, 1957. Since plaintiff did not accept this tendered payment of rentals before the District Court entered summary judgment for the Assurance Company, there is a clear concession of some loss for which the latter must indemnify plaintiff. The amount of the loss is necessarily a genuine issue of material fact. The evidence at a trial might have shown a greater loss of rentals, and plaintiff would have been entitled thereto. Under the federal pleading system, plaintiff is not bound by the itemization of damages in the pleading on the ad damnum demand.³ This feature alone presented a material issue of fact.

The Assurance Company appears to have proceeded upon the theory that this stipulation, subsequent interlocutory judgment and final judgment are res judicata between it and Gertrude Brawner. Patently this proposition is untrue. The Assurance Company was not a party to the condemnation case. If that company had intervened and sought a portion of the award, there would have been a different situation. The statute of California relative to date of fixing of value⁴ seems not to cover the situation in this condemnation case. Here the cause was not tried "within one year after the date of the commencement of the action." In fact, it was never tried at all. The stipulation as to issues agreed upon for pretrial conference is negative. It is not there agreed upon that the value as of date of commencement of the action were to be the ultimate measure of compensation. The "stipulation for judgment" does not fix the date of valuation. The statute does...