Gibbons v. Badger Mut. Ins. Co., No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtKRUCKER; HOWARD, C.J., and EUBANK
Citation466 P.2d 36,11 Ariz.App. 485
Decision Date04 March 1970
Docket NumberNo. 1,CA-CIV
PartiesG. L. GIBBONS, Appellant, v. BADGER MUTUAL INSURANCE COMPANY, a corporation, and R. E. Pruitt, Jr., and Bernice Pruitt, his wife, Appellees. 929.

Page 36

466 P.2d 36
11 Ariz.App. 485
G. L. GIBBONS, Appellant,
v.
BADGER MUTUAL INSURANCE COMPANY, a corporation, and R. E. Pruitt, Jr., and Bernice Pruitt, his wife, Appellees.
No. 1 CA-CIV 929.
Court of Appeals of Arizona, Division 1.
March 4, 1970.
Rehearing Denied April 17, 1970.
Review Denied May 12, 1970.

[11 Ariz.App. 486]

Page 37

Cavness, DeRose & Senner, by John W. Rood and George F. Senner, Jr., Phoenix, for appellant.

Anderson & Holloway, by Paul W. Holloway and Jack M. Anderson, Phoenix, for appellee Badger Mut. Ins. Co.

Jennings, Strouss & Salmon, by Nicholas Udall, Phoenix, for appellees R. E. Pruitt, Jr. and Bernice Pruitt.

KRUCKER, Judge.

Plaintiff-appellant, G. L. Gibbons, sued defendants-appellees, Badger Mutual Insurance[11 Ariz.App. 487]

Page 38

and its agent, R. E. Pruitt, for damages, on several theories, for the destruction by fire of plaintiff's business. The trial court granted defendants' motion to dismiss, and in the alternative, motion for summary judgment. Plaintiff appeals.

Construing the facts most favorable to the party opposing the motion, they are as follows. Mr. Gibbons owned two business properties, one in Pima County, Arizona, and one in Coconino County, Arizona. The Coconino County property was actually held as an Arizona corporation wholly owned by Gibbons. On or about September 7, 1962, Mr. Gibbons delivered to his insurance broker, Mr. Pruitt, a request that the insurance coverage on the Pima County property be transferred to the Coconino County property. No transfer of coverage was made, although the premiums were paid throughout this period. On January 24, 1963, the Coconino County property was wholly destroyed by fire. The company commenced investigation when a claim was made because they were unable to find any record of plaintiff's alleged request for a coverage transfer. Finally the company denied coverage in March, 1963. On November 3, 1965, Mr. Pruitt located the request and sent a letter to defendant Badger so stating. On November 1, 1967, plaintiff filed suit.

Plaintiff ultimately filed three complaints before the hearings on the motion to dismiss ended. The trial court entered judgment originally as to the first amended complaint, but granted leave to file a second amended complaint against which it also decreed judgment, finding that:

'* * * the defenses asserted by * * * defendants * * * in their motions for summary judgment and other pleadings are valid as to the allegations contained in the Second Amended Complaint.'

Assuming that pleading was the last and best pleading of plaintiff, the following theories of recovery were presented.

First, plaintiff on his own behalf and on behalf of the corporation alleges a contract of insurance existed between the parties based on memorandum and continued premium payments. Second, plaintiff sought to recover for the negligent failure of Mr. Pruitt to transfer the coverage. Coincident with this second claim, plaintiff contends that defendant Pruitt misled plaintiff for considerable time into believing that no request for transfer of coverage had actually been received by his office and that his delay in bringing suit might ultimately be barred by a one-year limitation period. 1 Lastly, plaintiff contends Mr. Pruitt represented no request for coverage transfer had been made and asked plaintiff not to bring suit; that he would see that coverage was honored. Plaintiff alleges he relied upon these misrepresentations, and his delay resulted in a bar by the one-year limitation period. This denominated cause of action first so appears in the second amended complaint, although the facts therein are not newly presented, just reorganized.

Plaintiff here on appeal makes the following allegations of error:

(1) The trial court erred in not finding an insurance contract.

(2) The trial court erred in finding the limitation period in the contract was valid.

(3) The trial court erred in applying the limitation period to the negligence claim.

(4) The trial court erred in denying recovery for fraud.

[11 Ariz.App. 488]

Page 39

(5) The trial court erred in finding plaintiff was an improper party to maintain the action.

(6) The trial court erred because there were material issues of fact.

Before proceeding to a discussion of these points, we believe it appropriate to answer defendants' contentions that the plaintiff's appeal was untimely and that this court's determination must be to dismiss. Specifically, defendants contend the following. On May 20, 1968, formal written judgments were entered granting defendants summary judgment as based on plaintiff's first amended complaint. Three days later, on May 23, 1968, the plaintiff filed a pleading entitled 'Motion for rehearing and amendment of Minute Entry.' The motion requested a rehearing of the summary judgment and a request to file a second amended complaint. The trial court set a time to hear plaintiff's motion for rehearing and at that time it considered the proposed second amended complaint and defendants' opposition thereto. The court then entered a second judgment on June 27, 1968. In that second judgment the judge ordered that the prior rulings granting the motion for summary judgment stand and that the defenses asserted by defendants were valid as to the second amended complaint, which the court permitted to be filed. Plaintiff's notice of...

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10 practice notes
  • Kenyon v. Hammer, No. 17141-PR
    • United States
    • Supreme Court of Arizona
    • 19 Septiembre 1984
    ...853 (1971) (cause of action against a title company for negligent misappropriation of funds); Gibbons v. Badger Mutual Insurance Co., 11 Ariz.App. 485, 466 P.2d 36 (1970) (insured's action based on the alleged negligence of his agent in transferring coverage); Marsh v. Hawkins, 7 Ariz.App. ......
  • Estes v. Alaska Ins. Guar. Ass'n, No. S-2408
    • United States
    • Supreme Court of Alaska (US)
    • 26 Mayo 1989
    ...P.2d 536 (Alaska 1968); Johnson v. Phoenix Assur. Co. of New York, 70 Wash.2d 726, 425 P.2d 1 (1967); Gibbons v. Badger Mut. Ins. Co., 11 Ariz.App. 485, 466 P.2d 36 (1970); Annotation, Validity of Contractual Time Period, Shorter Than Statute of Limitations, for Bringing Action, 6 A.L.R.3d ......
  • Manzanita Park, Inc. v. Insurance Co. of North America, No. 87-1787
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 13 Septiembre 1988
    ...fees satisfy the requirement of "any appreciable and actual harm." Id. Our decision is also guided by Gibbons v. Badger Mutual Ins. Co., 11 Ariz.App. 485, 466 P.2d 36 (1970), in which an Arizona court held that an insured's actionable injury at the hands of its agent occurred on the date of......
  • Gentile v. Anesthesiologists' Professional Assur. Co., No. 94-15213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Agosto 1995
    ...not filed until September 8, 1992. Under Arizona law, the action accrued when coverage was denied. See Gibbons v. Badger Mut. Ins. Co., 11 Ariz.App. 485, 490, 466 P.2d 36, 41 (1970); cf. Ness v. Western Sec. Life Ins. Co., 174 Ariz. 497, 500, 851 P.2d 122, 125 (Ct.App.1992). At any rate, be......
  • Request a trial to view additional results
10 cases
  • Kenyon v. Hammer, No. 17141-PR
    • United States
    • Supreme Court of Arizona
    • 19 Septiembre 1984
    ...853 (1971) (cause of action against a title company for negligent misappropriation of funds); Gibbons v. Badger Mutual Insurance Co., 11 Ariz.App. 485, 466 P.2d 36 (1970) (insured's action based on the alleged negligence of his agent in transferring coverage); Marsh v. Hawkins, 7 Ariz.App. ......
  • Estes v. Alaska Ins. Guar. Ass'n, No. S-2408
    • United States
    • Supreme Court of Alaska (US)
    • 26 Mayo 1989
    ...P.2d 536 (Alaska 1968); Johnson v. Phoenix Assur. Co. of New York, 70 Wash.2d 726, 425 P.2d 1 (1967); Gibbons v. Badger Mut. Ins. Co., 11 Ariz.App. 485, 466 P.2d 36 (1970); Annotation, Validity of Contractual Time Period, Shorter Than Statute of Limitations, for Bringing Action, 6 A.L.R.3d ......
  • Manzanita Park, Inc. v. Insurance Co. of North America, No. 87-1787
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 13 Septiembre 1988
    ...fees satisfy the requirement of "any appreciable and actual harm." Id. Our decision is also guided by Gibbons v. Badger Mutual Ins. Co., 11 Ariz.App. 485, 466 P.2d 36 (1970), in which an Arizona court held that an insured's actionable injury at the hands of its agent occurred on the date of......
  • Gentile v. Anesthesiologists' Professional Assur. Co., No. 94-15213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Agosto 1995
    ...not filed until September 8, 1992. Under Arizona law, the action accrued when coverage was denied. See Gibbons v. Badger Mut. Ins. Co., 11 Ariz.App. 485, 490, 466 P.2d 36, 41 (1970); cf. Ness v. Western Sec. Life Ins. Co., 174 Ariz. 497, 500, 851 P.2d 122, 125 (Ct.App.1992). At any rate, be......
  • Request a trial to view additional results

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