Homestead Fire Ins. Co. v. DeWitt

Decision Date29 April 1952
Docket NumberNo. 34553,34553
CourtOklahoma Supreme Court

Syllabus by the Court.

1. Where language of policy is ambiguous or susceptible of two different constructions, it will be strictly construed against insurer, and that construction adopted which is most favorable to insured.

2. Insurance policy involved construed, and held, that the damages for which recovery was sought by plaintiffs

was within the terms of the policy, and that plaintiffs were protected against such damages thereby.

Doerner, Rinehart & Stuart, Harry D. Moreland, and Jack Campbell, Tulsa, for plaintiff in error.

Ownby & Warren, Hugh Ownby, and Clarence A. Warren, Tulsa, for defendants in error.

BINGAMAN, Justice.

This action was brought by the plaintiffs, Ted DeWitt and W. E. DeWitt, Jr., dba The DeWitt Company, against The Homestead Fire Insurance Company, to recover on a policy of insurance covering certain construction work being done by the plaintiffs in building an addition to the John Burroughs School Building in Tulsa. The trial court rendered judgment for plaintiffs and defendant appeals.

The facts are stipulated. Therefrom it appears that plaintiffs, on or about July 7, 1947, entered into a construction contract with the Board of Education of the City of Tulsa to construct an addition to a school building known as the John Burroughs School in the City of Tulsa, and that in the construction of the addition it was necessary that the roof thereof be tied into and joined with the roof of the school building previously erected or existing; that on or about September 11, 1947, while the roof on the new building was being attached to the roof of the old building it was necessary to leave an opening in the roof of the old building and in order to protect the old building plaintiffs had put canvas covers over said opening; that on said last mentioned date a sudden wind storm arose and blew the canvas covering off said opening and damage was done to the interior of the old structure by a rain storm which accompanied the wind storm, necessitating repairs in the amount of $532, which were made by plaintiffs and for which they seek to recover from the defendant company.

A copy of the insurance policy is attached to the petition and stipulated to be true and correct. In the policy proper the property insured is not described, but in an attached 'builders risk completed value form' it is described. That form contains the following provision:

'Provisional amount Sixty Three Thousand Eight Hundred Fifty-eight dollars ($63,858.00) on the one story composition roof masonry building, while in course of construction, including foundations (except as hereinafter excluded), additions, attachments, and all permanent fixtures belonging to and constituting a part of said building, to be occupied as John Burroughs School all while situated 1924 North Cincinnati.'

Following this provision the form provides that the policy also covers materials, equipment, supplies and temporary structures of all kind, incident to the construction of said building; machinery, tools, equipment, etc., but does not cover the cost of excavation, brick, stone or concrete foundation, which are below or under the surface of the lowest basement floor. It also provides that in the event of loss the company shall be liable for no greater proportion of the face value of the policy than the amount thereof bears to the value of the described property at date of completion. Also attached to and made a part of the policy is an extended coverage endorsement covering perils of wind storm, etc., in which it is provided that the policy is extended to include direct damage by wind storm, hail, etc., and which also provides that the company shall not be liable for loss to the walls of the building, or the insured property, caused by rain, snow, sand or dust, whether driven by wind or not, unless the building insured or containing the property insured shall first sustain an actual damage to roof or walls by...

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9 cases
  • Max True Plastering Co. v. U.S. Fidelity and Guar. Co., 85860
    • United States
    • Supreme Court of Oklahoma
    • 27 d2 Fevereiro d2 1996
    ...the reasonable expectations of an insured will be considered in the construction of insurance contracts. In Homestead Fire Ins. Co. v. De Witt, 206 Okla. 570, 245 P.2d 92, 94 (1952), this Court quoted from Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y. 47, 120 N.E. 86-87, 13 A.L.R. 875 (......
  • Victory Peach Group, Inc. v. Greater New York Mut. Ins. Co.
    • United States
    • New Jersey Superior Court – Appellate Division
    • 6 d1 Abril d1 1998 does not contain such language. And compare Travelers Indem. Co. v. Rawson, 222 So.2d 131 (Miss.1969); Homestead Fire Ins. Co. v. DeWitt, 206 Okla. 570, 245 P.2d 92 (1952). 1 A fortuitous loss has been defined as one that, so far as the parties to the insurance contract are aware, is d......
  • Healy Tibbitts Constr. Co. v. Employers' Surplus Lines Ins. Co.
    • United States
    • California Court of Appeals
    • 19 d5 Agosto d5 1977
    ...appropriate item of damages (cf. Morrison-Knudsen Co. v. Phoenix Ins. Co. of Hartford (8th Cir. 1949) 172 F.2d 124; Homestead Fire Ins. Co. v. De Witt (Okla.1952) 245 P.2d 92). Finally, as to the granting of a new trial as to Hoag, when neither Hoag nor the appellant made a motion for said ......
  • Equitable Fire & Marine Ins. Co. v. Allied Steel Const. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 6 d5 Fevereiro d5 1970
    ...Beaty, 455 P.2d 684, 688 (Okl. 1969); Allied Reserve Life Ins. Co. v. Cunningham, 355 P.2d 564 (Okl.1960); Homestead Fire Ins. Co. v. DeWitt, 206 Okl. 570, 245 P.2d 92, 94 (1952). 4 Fulton v. Coppco, Inc., 407 F.2d 611 (10th Cir. 1969); Continental Cas. Co. v. Fireman's Fund Ins. Co, 403 F.......
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