Goldstein v. National Fire Ins. Co. of Hartford, Conn.

• Decision Date: 03 April 1919
• Docket Number: 14960.
• Citation: 106 Wash. 346,180 P. 409
• Court: Washington Supreme Court
• Parties: GOLDSTEIN et al. v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN.

180 P. 409

106 Wash. 346

GOLDSTEIN et al. v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN.

No. 14960.

Supreme Court of Washington, En Banc.

April 3, 1919

Appeal from Superior Court, Walla Walla County; Edward C. Mills Judge.

Action by Rosa M. Goldstein and another against the National Fire Insurance Company of Hartford, Conn. Judgment for defendant and plaintiffs appeal. Affirmed.

J. W. Brooks and John C. Hurspool, both of Walla Walla, for appellants.

E Eugene Davis, of Spokane, and T. A. Paul, of Walla Walla, for respondent.

CHADWICK C.J.

Appellants brought this action to recover upon a fire insurance policy issued by the respondent company. The policy is in form what is called the 'New York Standard Form' in our insurance code. It contained the usual covenants stipulations, and conditions, among others that the insured would in case of fire give immediate notice of any loss, followed by the usual stipulations with reference to time, inventories, and care of the property pending a settlement, and:

Line 90. 'In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.'

Line 96. 'This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by the appraisers when appraisal has been required.'

Line 110. 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.'

We shall not discuss the giving of notice, being satisfied that the judgment of the court must be affirmed on other grounds.

Within a day or two after the fire, Henry Hall, an independent adjuster, but representing the respondent in this affair, went to Walla Walla to adjust the loss. The court found:

That the adjuster 'interviewed plaintiffs Rosa M Goldstein and M. Goldstein, her husband, and at said time advised said plaintiffs that he would procure a competent architect and contractor residing in Walla Walla, to estimate the amount of loss and damage to said building and ascertain the necessary cost of repairs thereto and at said time requested said plaintiffs to also procure some competent architect and builder to do the same on their behalf.

'That plaintiffs immediately thereupon procured one Nick Wierck, contractor and builder of Walla Walla, Wash., as contractor to figure said damage on their behalf and said Henry Hall procured one Charles Lambert to do so on his behalf.

'That said Charles Lambert thereafter estimated the amount of loss and the reasonable cost of repairs to said building to be $1,714.69, and furnished to said Henry Hall a detailed statement thereof, which said Henry Hall exhibited to plaintiffs.

'That said Nick Wierck, at or about the same time, furnished to plaintiffs, who exhibited and presented to the said Henry Hall, a statement in words and figures as follows, to wit:

"Letterhead.

"Mr. & Mrs. Goldstein:

"At your request I have examined your house at 125 East Chestnut St. which suffered a fire loss and in figuring out damage find that I could build an entirely new house as cheap as to repair the damage so that I consider it a total loss.

"Very truly yours,

Nick Wierck.

"Plaintiffs' Exhibit I.'

'That upon being presented with said statement by plaintiffs, said Henry Hall advised said plaintiffs that he could not utilize the same, but required a statement in more detail and one setting out the figures upon which said statement was based, and returned said statement to plaintiffs.

'That plaintiffs refused to furnish any further statement, and the said Henry Hall thereupon demanded of plaintiffs an appraisal of the loss or damage to said property, as provided for in the said insurance contract and whom the respective parties would designate as their respective appraisers, prepared, a writing embodying the agreement of plaintiffs and defendant to submit the question of the amount of loss and damage to said building and the designation of the appraisers for said purpose and presented said writing to plaintiff, Rosa Goldstein, for her signature. That plaintiffs thereupon advised said Henry Hall that before signing said writing they would consult their attorney, to which said Henry Hall acquiesced. Plaintiffs thereafter returned to said Henry Hall and advised him that their attorney, J. W. Brooks, had advised them not to sign said agreement and to enter into no further negotiations with the said Henry Hall regarding adjustment of their loss, and that said attorney had advised them that they need do nothing further than collect the face of said policy, and that plaintiffs thereupon refused to have with said Henry Hall any further negotiations in regard to the adjustment of said loss and refused to submit to an appraisal thereof, as demanded by said Henry Hall.

'That said Henry Hall thereupon advised plaintiffs that they would be required to comply with all the conditions of their policy and read to plaintiffs certain portions thereof, and advised plaintiffs that he would upon returning to Spokane, write to them advising them of the policy conditions with which they were expected to comply.

'That thereafter and on the 13th day of January, 1917, the said Henry Hall addressed and sent to Mrs. Rosa Goldstein at Walla Walla, Wash., a communication in words and figures as follows:

"Spokane, Wash., January 13, 1917.

"Mrs. Rosa Goldstein, 226 West Main St., Walla Walla, Washington--Dear Madam: As we were unable to agree on the adjustment of your claim under National Fire Insurance Company of Hartford, Conn., policy No. 48026, I beg to call your attention to the terms and conditions of the policy contract, with which we expect you to comply, special reference is made to line of the policy conditions No. 71 to 81 inclusive, and No. 90 to 99 inclusive. Any communication relative to this loss may be addressed to the undersigned at 514 Mohawk Building, Spokane, Washington.

"Yours very truly,

"National Fire Insurance Company,

"By Henry Hall, Adjuster.'

'And in reply thereto received from J. W. Brooks, attorney for said Mrs. Rosa Goldstein, a communication in words and figures as follows:

"Walla Walla, Wash., January 15, 1917.

"Henry Hall, Adjuster, 514 Mohawk Building, Spokane, Wash.--Dear Sir: In re Insurance, Rosa Goldstein, you are respectfully referred to section 6059 No. 105 1/2 volume three Remington and Ballinger's Code.

Yours truly,

"JB. MK.

J. W. Brooks.'

'And to which the said Henry Hall replied as follows:

"Spokane, Wash., January 16, 1917.

"Mr. J. W. Brooks, Attorney at Law, Walla Walla, Washington--Dear Sir: I beg to acknowledge receipt of your favor of the 15th inst. calling my attention in the insurance of Rosa Goldstein to section 6059 No. 105 1/2 volume three Remington's and Ballinger's Code.

"I

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