Gremillion v. Travelers Indem. Co., 50314

• Decision Date: 09 November 1970
• Docket Number: No. 50314,50314
• Citation: 256 La. 974,240 So.2d 727
• Parties: Karl J. GREMILLION v. TRAVELERS INDEMNITY COMPANY.
• Court: Louisiana Supreme Court

Page 727

240 So.2d 727

256 La. 974

Karl J. GREMILLION v. TRAVELERS INDEMNITY COMPANY.

No. 50314.

Supreme Court of Louisiana.

Nov. 9, 1970.

Dissenting Opinion Nov. 20, 1970.

Stafford, Pitts & Bolen, John L. Pitts, Alexandria, for defendant-appellant.

Holt, Wagner & Lee, Richard E. Lee, Pineville, for plaintiff-appellee.

HAMLIN, Justice:

This matter concerns a plea of prescription filed by defendant Travelers Indemnity Company (hereinafter referred to as Travelers) to plaintiff's suit for damages sustained from fire loss. The trial court overruled the plea of prescription and heard the matter on the merits; it awarded plaintiff $8,000.00. The Court of Appeal affirmed the judgment of the trial court. Appeal was limited to the sole issue of whether the trial judge was correct in overruling the exception of prescription based upon the suit's having been filed two years after the fire. In the exercise of our supervisory jurisdiction, we directed certiorari to the Court of Appeal, Third Circuit, for review of its judgment. Art. VII, Sec. 11, La.Const. of 1921; 228 So.2d 520; 255 La. 236, 230 So.2d 90.

The facts herein are in substance that on December 20, 1966, a frame dwelling, 527 Fulton Street, Alexandria, Louisiana, owned by plaintiff and insured by Travelers, was severely damaged by fire. (Plaintiff claims that it was completely destroyed.) Plaintiff retained the services of a New Orleans attorney for the recovery, under the provisions of his insurance policy, of damages for the fire loss. Some contact was made with Travelers, but no definite action was taken by either the insured or his then employed counsel. Present counsel was thereafter employed and received the following letter from Travelers on December 27, 1968:

'Dick Lee, Attorney

'818 Main Street

'Pineville, Louisiana

'Re: 484--F--12111

'Karl Gremillion

'Fire Loss

'D/L 12--20--66

'Dear Dick:

'We are attaching a photostat of the policy jacket, which becomes a part of every fire policy such as the one Mr. Karl Gremillion has on his house. We have not as yet received any certified copy of the policy, but I can assure you the certified copy will bear this same policy jacket.

'I call your attention to the next to the last paragraph on the back side of the policy jacket which says, on Line 157 under the caption Suit, it states 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.'

'On 3--10--67 we tendered an offer to Mr. Gremillion for conclusion of the loss, but he refused to accept this offer. He was also forwarded a proof of loss on 2--21--67, with instructions to complete and return it. This proof has never been received in our office and we will now take the position that the claim has prescribed.¹

'If you have any further questions in regards to this claim, please contact us and we will be happy to discuss it with you.

'Best personal regards,

'Yours very truly,

(Sgd) 'Ted E. Duggan

EMA

'Ted E. Duggan

'Adjuster

'TED:EMA

'enc.'

On January 9, 1969, more than two years after the fire, plaintiff filed suit against Travelers for damages in the sum of $8,000.00, the extent of liability coverage. Also named as defendants were Anthony J. Vesich, Jr., Attorney, and his insurer against errors and omissions in the practice of law, St. Paul Fire & Marine Insurance Company, and an alternative $8,000.00 demand was made against them; they filed declinatory and dilatory exceptions, and the trial court sustained a plea of prematurity and dismissed plaintiff's suit against them.

Travelers pleaded prescription and answered, denying liability because of the averred untimely filing of plaintiff's suit. The trial court dismissed plaintiff's suit against Travelers; it stated that it had authority to dismiss the suit for failure to disclose a cause of action. The trial court said, 'The petition does not allege that any of the requirements of the policy had been complied with by the plaintiff nor does it allege any facts upon which the conclusion could be reached that the requirements of the policy were waived, nor is there any allegation upon which an estoppel against the insurer could be based.'

A new trial was granted, and the judgment against Travelers, supra, was rendered by the trial court and affirmed by the Court of Appeal.

Travelers contends in this Court that the Court of Appeal erred as a matter of law in construing the statutory prescriptive provision in the standard fire policy, LSA-R.S. 22:691, so as to permit the filing of a suit more than two years after a fire loss. It argues that the question of prescription under a fire policy was confused before the instant suit, but that presently it is more so.

Plaintiff argues that the judgments of the two lower courts are correct and should be affirmed.

The pertinent parts of the instant policy provide:

'Requirements in case loss occurs.

The insured shall give immediate written notice to this Company of any loss, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, furnish a complete inventory of the destroyed, damaged and undamaged property, showing in detail quantities, costs, actual cash value and amount of loss claimed; and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of loss and whether or not it then stood on leased ground, and shall furnish a copy of all the descriptions and schedules in all policies and, if required, verified plans and specifications of any building, fixtures or machinery destroyed or damaged. * * *

'Appraisal.

In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, On the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally. (Emphasis supplied.) * * *

'When loss payable.

The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.

'Suit.

No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.'

LSA-R.S. 22:691 provides in part:

'A. The printed form of a policy of fire insurance, as set forth in Subsection F shall be known and designated as the 'standard fire insurance policy of the State of Louisiana.'

'B. No policy or contract of fire insurance shall be made, issued or delivered by any insurer, or by any agent or representative thereof, on any property in this state, unless it shall conform as to all provisions, stipulations, agreements and conditions, with such form of policy.

'F. The form of the standard fire insurance policy of the state of Louisiana * * * shall be as follows:

'Waiver provisions--No permission affecting this insurance shall exist, or waiver of any provision be valid unless granted herein or expressed in writing added hereto. No provision, stipulation or forfeiture shall be held to be waived by any requirement or proceeding on the part of this Company relating to appraisal or to any examination provided for herein.

'Suit--No suit or action on this policy for the necovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.'

Herein, the Court of Appeal predicated its judgment on the Case of Finkelstein v. American Ins. Co. of Newark, N.J., 222 La. 516, 62 So.2d 820, Nov. 10, 1952, Rehearing denied Dec. 15, 1952. After quoting extensively from Finkelstein, the Court concluded:

'In the present case, it is stipulated that there was no agreement between the plaintiff and the defendant regarding the amount of the plaintiff's loss. The defendant's adjuster testified that the matter was never submitted for arbitration because of the disagreement as to the amount of the loss. This suit was filed 13 days after ...