General Acc. Fire & Life Assur. Corp. v. Judd
| Decision Date | 18 March 1966 |
| Citation | 400 S.W.2d 685 |
| Parties | GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., Ltd., et al., Appellants, v. Thelma JUDD et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Joseph C. O'Bryan, Louisville, for appellants.
Thomas B. Givhan, Shepherdsville, for appellees.
The appellee, Thelma Judd (hereinafter called plaintiff), bought a new car on December 16, 1963, for $3231.31. Nine days later it was badly damaged in a collision with another automobile in Louisville. The loss was covered by the $50 deductible collision damage provisions of an insurance policy issued by the appellants (hereinafter collectively called the company). At the company's request plaintiff secured and submitted two repair estimates in the respective amounts of $1,148.98 and $1,140.26. Meanwhile the company caused a separate estimate to be made by Automotive Inspection Service, a company engaged in the business of appraising accident damage to automotive equipment for insurance companies. This estimate was in the amount of $889.69, and on January 13, 1964, the company sent plaintiff its draft for $849 (making a $9.31 error). The draft provided that endorsement by the payee would constitute acceptance of the face amount in full settlement of the claim. Plaintiff refused to accept it and the company declined to negotiate further.
Plaintiff brought this suit against the company on June 26, 1964, demanding recovery for the diminution in value of her automobile (less $50), $20 for towage, 50cents per day for past and future storage, and $5 per day for past and future loss of use of the car. She was permitted to prove the last two items to the date of the trial, for a total of 326 days. The jury returned a verdict of $3,513 and judgment followed accordingly. The company appeals.
The insurance policy required the company to pay the amount of loss caused by collision (less $50) and to pay towing and labor costs necessitated by disablement of the automobile. The loss liability was made subject to this limitation:
'The limit of the company's liability for loss shall not exceed the actual cash value of the property, 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 property or such part thereof with other of like kind and quality, nor, with respect to an owned automobile described in this policy, the applicable limit of liability stated in the declarations,' etc.
Among the general conditions of the policy it was provided that the company 'may pay for the loss in money; or may repair or replace the damaged * * * property,' etc., and the insured was required in the event of loss 'to protect the automobile' at the company's reasonable expense.
An automobile dealer testified that the market value of plaintiff's automobile was $3,000 immediately before the accident and somewhere between $1,300 and $1,500 thereafter. The jury was instructed that it was the company's duty (1) to pay the reasonable cost of repairs to restore the vehicle to as good condition as it was before the collision, not to exceed the sum of $1,700, (2) to pay reasonable towing costs not exceeding $20, (3) to pay reasonable storage costs incurred since the accident, not exceeding 50cents per day, unless plaintiff could or should have mitigated the damages without violating the provisions of the insurance contract, and (4) to compensate plaintiff not exceeding $5 per day for the loss of use, if any, of the car for business purposes during such time as was reasonably required for her to replace it, provided that the jurors believed the company had unreasonably delayed replacing or repairing the car.
From the amount of the verdict it is apparent that the jury awarded $1,700 for repairs, $20 for towage, 50cents per day for storage and $5 per day for loss of use of the car for the full period of 326 days between the date of the accident and the conclusion of the trial.
Although plaintiff says, and the company seems to agree, that this action 'sounds' in both contract and tort, it is nothing more than a...
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