Cohen v. Globe Indemnity Co., 20218.
| Decision Date | 27 January 1941 |
| Docket Number | No. 20218.,20218. |
| Citation | 48 F. Supp. 1 |
| Parties | COHEN v. GLOBE INDEMNITY CO. |
| Court | U.S. District Court — Western District of Pennsylvania |
T. Henry Walnut, of Philadelphia, Pa., for plaintiff.
Axelroth & Porteous, of Philadelphia, Pa., for defendant.
The issue now before the court is the reformation of the contract of insurance. See opinion filed December 20, 1940. D. C., 37 F.Supp. 208.
It is adjudged and ordered that the contract be reformed in accordance with the prayer of the plaintiff's petition.
The defendant contends that certain statements in the course of the opinion of the Circuit Court of Appeals preclude reformation. It will be noted that it does not contend that the decision of that court, as distinguished from what was said in the opinion, has that effect. Nor could it so contend, because the decision of the Circuit Court of Appeals was rendered upon a contract which is different at a vital point from the one which the plaintiff says was the real contract. The Circuit Court of Appeals went no further than to rule that by the express terms of the contract or policy, as it was presented to the court, knowledge of the assistant claims manager, Mr. Atkinson, of the insured's mistaken belief that his system of keeping books and records was a substantial compliance with the policy did not estop the company to set up the defense that the plaintiff had failed to comply with its terms. This was not on the ground that under the general rules of the law the knowledge acquired by the assistant claims manager of the company, while acting in the scope of his authority, was not the knowledge of the company, but on the ground that the parties had expressly agreed (contrary to the general rule of law) that such knowledge, whether attributable to the company or not, would not, as between the parties, form the basis of a waiver, estoppel, or alteration of the contract.
The sentence of the opinion emphasized by the defendant to the effect that the policies in suit "created anew the duty upon the appellee to maintain his records in accordance with the clauses of warranty, and the fact that the appellee's performance of that warranty in the past was deemed sufficient by a representative of the company and the company paid the claim, is insufficient to relieve the appellee of performance in accordance with the terms of the warranty under the new contracts of insurance," was, of course, directed solely to the issues of estoppel and waiver, with which the Circuit Court of Appeals was dealing. Globe Indemnity Co. v. Cohen, 3 Cir., 106 F.2d 687, 692. There was no issue of reformation before that court, and the defendant's argument depends upon a supposition that the Circuit Court of Appeals intended to express its views on issues not before it — which I am quite certain it did not intend to do.
The other of the defendant's principal contentions has to do with the scope of authority of the assistant claims manager;...
To continue reading
Request your trial