Eby v. Foremost Ins. Co., 10312
Decision Date | 16 October 1962 |
Docket Number | No. 10312,10312 |
Citation | 374 P.2d 857,19 St.Rep. 392,141 Mont. 62 |
Parties | Jim EBY, Plaintiff and Respondent, v. FOREMOST INSURANCE COMPANY, a Michigan corporation, Defendant and Appellant. |
Court | Montana Supreme Court |
Richard J. Carstensen, Billings, for appellant.
Wiggenhorn, Hutton, Schlitz & Sheehy, Billings, John C. Sheehy, Billings, argued orally, for respondent.
This is an appeal from a judgment of the district court of the thirteenth judicial district of the State of Montana, in and for the County of Yellowstone.
In May 1957, respondent purchased a second hand 1954 Duo Model mobile trailer for $3,800, at which time he insured the trailer against loss by hail with the appellant.
On June 7, 1958, a hail storm of unusual severity occurred in the City of Billings and caused substantial damage to the roof, one window and the front and rear outside of the trailer.
Shortly after the hail storm the adjusters for the appellant Insurance Company called on the respondent, inspected the damage and took pictures of the trailer. The adjusters determined there was one broken window, one coat of paint was needed on the roof, and that all other damage to the trailer was that of 'appearance damage'. Appellant contends that 'appearance damage' does not change the trailer's value or use as a home.
It is further uncontradicted that the Insurance adjusters were instructed to calculate appearance damage by figuring the decrease in the fair market value of this trailer by the reason of appearance damage and were further definitely instructed not to obtain repair estimates.
The respondent on September 10, 1958, obtained an estimate from the North Star Body and Trailer Repair in Billings, which at that time seemed to be the only firm engaged in the repair of trailers. Mr. Dabner of this company estimated the total damage to be $999.67.
The entire matter revolves around a clause in the insurance policy which is as follows:
'Limit of Liability; settlement; no abandonment'.
'The limit of the company's liability for loss shall not exceed the actual cash value of the mobile home, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the mobile home or such part thereof with other of like and quality, with deduction for depreciation, nor the applicable limit of liability stated in the declarations.
'The company may pay for the loss in money or may repair or replace the mobile home(s) or such part thereof, as aforesaid, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is so replaced, or may take all of such part of the mobile home(s) at the agreed or appraised value but there shall be no abandonment to the company.'
The trial court heard this case without a jury and entered its findings of fact and conclusions of law awarding judgment to the respondent on February 21, 1961. The appellant's motion for new trial was denied, whereupon this appeal followed.
The appellant has specified many errors. The first specification of error is as follows:
This specification is also designated as Nos. 7 and 10 in appellant's brief.
In support of this contention, appellant argues that the respondent is not entitled to collect more money from the insurance company than his actual damages from this hail storm, and that the proper measure of damages in case of partial loss is the actual value of the total loss, measured by the fair market value of the trailer immediately before the loss and its value immediately after the loss. Appellant also contends that it should not pay the cost of repairs to the trailer when it has suffered only appearance damage.
In the case of Rossier v. Union Auto Ins. Co., 134 Or. 211, 213, 214, 291 P. 498, 500, under a policy limiting the insurance company's liability 'to the actual cost of replacement of the property damaged or destroyed,' the court said:
"Replacement' as thus used means, in our opinion, the restoration of the property to its condition prior to the injury. Such restoration may or may not be accomplished by repair or replacement of broken or damaged parts. It cannot be said that there has been a complete restoration of the property unless it can be said that there has been no diminution of value after repair of the car. Courts have differed in their construction of similar limitation clauses and will probably continue to do so, so long as policies are couched in language tending toward uncertainty and confusion.'
In the case of Prickett v. Hawkeye-Security Ins. Co. (10th Cir.1960), 282 F.2d 294, 301, the court ruled as follows:
In the instant cause, the witness Duane Dabner, testified that he was a partner in the North Star Body and Trailer Company at Billings, Montana, and on September 10, 1958, he made an estimate of parts and labor to repair the mobile home of the respondent. The estimate was $572 for labor, and $427.67 for parts and material, or a total of $999.67. This exhibit was offered and properly received in evidence.
Appellant cites specification of error 3 as error in the rejection of the testimony of Hubert H. Cummings, Jr. who stated that he was an insurance adjuster for the appellant. He testified as follows:
'
Mr. Cummings further testified in response to questions put to him by appellant's counsel,
* * *
'(Last question read to the witness at this time.)
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