Cutting v. Atlas Mut. Ins. Co.

• Decision Date: 17 June 1908
• Citation: Cutting v. Atlas Mut. Ins. Co., 85 N. E. 174, 199 Mass. 380 (Mass. 1908)
• Parties: CUTTING, Insurance Com'r v. ATLAS MUT. INS. CO. In re DOWNS.
• Court: Supreme Judicial Court of Massachusetts

199 Mass. 380

85 N.E. 174

CUTTING, Insurance Com'r v. ATLAS MUT. INS. CO.

In re DOWNS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1908

COUNSEL

Addison

C. Burnham and Blodgett, Jones & Burnham, for petitioner.

Hallowell & Hammond, for receiver.

OPINION

MORTON J.

This is an intervening petition in receivership proceedings concerning establish a claim for a loss by fire under an insurance policy issued by that company on January 2, 1903, to the United States Pipe Line Company, insuring it for one year 'for account whom it may concern' against loss by fire on an amount not exceeding $25,000:

'On iron tanks and their contents, consisting of petroleum and its products, all while contained in the state of Pennsylvania.'

'Privilege to make additions, alterations and repairs, this insurance to cover same, to use oil or other lights, and to work at all hours and for other insurance without notice until required.'

'It is understood and agreed that this insurance surance shall not attach until all specific insurance is exhausted.'

The pipe line company was engaged in storing and transporting petroleum and had tanks at various places in Pennsylvania where oil was stored.On July 3, 1903, one of these tanks situated at Marcus Hook, Pa., was damaged by fire and its contents destroyed, and on July 11, 1903, another tank situated there was also damaged by fire and its contents destroyed.This petition seeks to recover of the Atlas Company for these losses.The pipe line company assigned to the petitioner all its rights under the policy, after the losses had occurred.At the time of the fires the pipe line company had other insurance on the property destroyed and other property situated at Marcus Hook amounting to $275,000.All of these policies, except three, insured the company against loss 'on iron tanks and their contents consisting of petroleum and its products, all while contained at Marcus Hook, Delaware county, Pennsylvania.'The only difference in regard to the three was that those described the contents as 'consisting of refined petroleum' instead 'of petroleum and its products.'This difference is immaterial.All of these policies contained what is known as a 'coinsurance claim.'In some of them the policies provided, in substance, that the companies should not be liable for a greater proportion of the loss than the amount of the policy bore to 90 per cent. of the value of the property insured.In the others the proportion was that which the amount of the policy bore to the whole value of the property insured.The value of the property insured under these policies was largely in excess of the amount of insurance and only a portion of the losses sustained could therefore be collected under them.The petitioner contends that the insurance under the other policies was not 'specific insurance,' and that, if it was, it has been exhausted, and that the Atlas Company is liable up to the amount insured by it for the balance of the loss.The receiver contends that the insurance under the other policies constituted 'specific insurance' within the meaning of those words as used in the policy issued by the Atlas Company, and that it has not been 'exhausted,' and that the Atlas Company is not therefore liable.These contentions present the questions at issue which are (1) whether the insurance under the other policies constituted 'specific insurance,' and (2) whether, if they did, it has been 'exhausted.'It is agreed that if it did not constitute 'specific insurance,' or that if it did and it has not been 'exhausted,'the...