Incorporated Village of Enosburg Falls v. Hartford Steam Boiler Inspection & Ins. Co.

• Decision Date: 02 January 1952
• Docket Number: No. 524,524
• Citation: Incorporated Village of Enosburg Falls v. Hartford Steam Boiler Inspection & Ins. Co., 85 A.2d 577, 117 Vt. 114 (Vt. 1952)
• Court: Vermont Supreme Court
• Parties: INCORPORATED VILLAGE OF ENOSBURG FALLS v. HARTFORD STEAM BOILER INSPECTION & INS. CO. et al.

Page 577

85 A.2d 577

117 Vt. 114

INCORPORATED VILLAGE OF ENOSBURG FALLS v. HARTFORD STEAM BOILER INSPECTION & INS. CO. et al.

No. 524.

Supreme Court of Vermont.

Jan. 2, 1952.

Keith Brown, Enosburg Falls, Austin & Edmunds, Burlington, for plaintiff.

Hunt & Hunt, Montpelier, Franklin W. Stevenson, Hartford, for Hartford Co.

Henry F. Black, White River Jct., Franklin S. Billings, Jr., Woodstock, for Vermont Mut. Fire Ins. Co.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

ADAMS, Justice.

This is a bill in chancery brought by the plaintiff against the two defendants to determine the liability and amount thereof of each defendant to the plaintiff on insurance policies issued by each defendant to the plaintiff. It waa alleged that the liability was by reason of an electrical disturbance that was followed by fire and occurred in the plaintiff's electric light plant on July 6th, 1947. It was heard by the Chancellor on the bill of complaint, answer of each defendant, replication to each answer and oral testimony. Findings of fact were made and filed. A decree was entered setting forth the amount of the liability of each defendant and ordering payment thereof with interest. For convenience the defendants will be hereafter referred to as Hartford and Vermont respectively. The case is here on exceptions of each defendant. Vermont has, however, waived its exceptions. Hartford's exceptions are to certain findings and to the decree.

We first take up the exceptions to the findings. They are to three findings, namely;--numbers 18, 19 & 20. They may be considered collectively. There findings are as follows;----

'18. The proportion of this joint loss to be allocated to Hartford is 75/90 or $12,033.87 and to Vermont 15/90 or $2,405.62. In addition to Hartford's share of the joint loss is an item of $2,196.25 which is not assessable to Vermont, making a total of $14,230.12 as Hartford's liability.'

'19. On October 7, 1948, Hartford paid to the Village $8,576.08, at which time interest in the amount of $455.36 had accrued. This payment left a balance due to the Village of $6,109.40. To the date of these findings interest in the amount of $837.98 has accrued, making the amount due from Hartford, $6,947.38.'

'20. From the amount allocated to Vermont of $2,405.62 there is an amount of $100 deductible by the terms of the policy, leaving a net of $2,305.62. Interest on this item from March 25, 1948, to the date of these findings amounts to $503.38, making the amount owing by Vermont to the Village $2,809.00.'

The exceptions are, in substance, that the computations and allocations in these findings are contrary to and against the provisions of the policies. They set forth fully Hartford's theory as to how the computations and allocations should have been made. These findings are plainly conclusions of law and cannot stand if they are inconsistent with the findings upon which they are based. Abatiell v. Morse, 115 Vt. 254, 259, 56 A.2d 464; Abraham v. Insurance Company of North America, 117 Vt. 75, 84 A.2d 670.

As neither defendant questions some liability and the only question before us is the computation and allocation of the loss it is not necessary to detail any of the findings at length except those pertaining to the terms of the policies regarding the question here presented. It appears from the findings that the plaintiff had in its electric light plant a large General Electric generator; that on July 6th, 1947, a bolt of lightning demolished a lightning arrestor and entered the generator; that there was a fire inside the generator which was an accidental burning of the generator caused by lightning and that at the time of the fire the property in question was covered by two insurance policies, one issued by Hartford in the sum of $75,000. and the other issued by Vermont for $18,000. of which $15,000. coverage was on the property in question. Then follows this finding, '11. These policies are Plaintiff's Exhibits No. 1 and No. 2, and together with all schedules and endorsements and provisions thereof, except that clause in the Vermont policy, Plaintiff's Exhibit No. 2, entitled 'Reduce Rate Contribution Clause,' which clause was stamped 'void' at the time of the issuance of the policy, are found as facts.'

The Chancellor then made certain specific findings in regard to the policies and quoted certain provisions thereof. However, in their briefs and on oral argument the attorneys referred to and relied upon some provisions of the policies not so specifically found, relying upon finding No. 11 as enabling them so to do. When their attention was called to the matter they agreed that we might refer to the policies in aid of the finding for the provisions upon which they relied so that we might decide the case with the question fully presented before us.

In view of this situation we take occasion to say again that we have repeatedly held that exhibits cannot be made a part of the findings by reference only and findings cannot be supplemented in this manner. Bardwell v. Commercial Union Assurance Co., Ltd., 105 Vt. 106, 111, 163 A. 633 and cases cited; Mancini v. Thomas, 113 Vt. 322, 328, 34 A.2d 105; Ledoux v. Railway Express Agency, Inc., 113 Vt. 480, 482, 35 A.2d 665. We recently called attention to it again as pertaining to an agreed statement of facts. Abraham v. Insurance Company of North America, 117 Vt. 75, 84 A.2d 670. A finding that finds a certain exhibit by reference as a fact amounts to the same thing and no more than making it a part of the findings by reference only.

The Chancellor then found that Hartford's total liability from an accident as defined in schedule 4 covering the generator was subject to the limit per accident of $75,000; that the policy provided insurance against loss on property directly damaged by 'accident' which was defined as respects 'breakdown coverage' afforded in this case as 'a sudden and accidental burning out of the object;' that the generator was a part of the object and that Hartford was liable for its share of the damage caused by 'burning out' (the electrical injury and ensuing fire) which occurred on July 6, 1947.

Findings No. 14 and No. 15 are as follows:

'14. The Hartford policy further provides: '3. In the event of a property loss to which both this insurance and other insurance carried by the assured apply, herein referred to as 'joint loss' * * * (b) the Company shall be liable only for the proportion of the said joint loss that the amount which would have been payable under this policy on account of said loss had no other insurance existed bears to the combined total of said amount and the amount which would have been payable under all other insurance on account of said loss had there been no insurance under this policy; but this clause (b) shall apply only in case the policies affording such other insurance contain a similar clause.'

'15. The Vermont policy provides by endorsement under paragraphs 2, 3 and 4 as follows: '2. If electrical appliances or devices of any kind, including wiring are covered under this policy, this company shall not be liable for any electrical injury or disturbance to the electrical appliances or devices whether from artificial or natural causes, unless fire ensues, but if fire does ensue, then, in consideration of the rate of premium at which this policy is written, this company shall be liable for its proportion of loss or damage, caused by electricity if fire ensues, to the electrical appliances or devices, provided such loss or damage caused by electricity and ensuing fire exceeds the sum of $100, but only for this company's pro rata part of the amount of such excess.

"3. It is also a condition of this policy, that if there be other fire insurance upon the property covered, this company shall be liable only for such proportion of any direct loss or damage caused by fire, or by lightning, or by other electrical injury or disturbance if fire ensues, as the amount of this policy bears to the whole amount of fire insurance applying, whether such other insurance contains a similar clause or not, subject, however, to the limitation of paragraph 4.

"4. It is a condition of this policy that if the insured has insurance other than fire insurance covering a joint loss as hereinafter defined, the liability under this policy for said joint loss shall not exceed this company's pro rata share (as stipulated in paragraph 3 hereof) of that proportion of said joint loss that the amount which would have been payable under all fire insurance on account of said joint loss, assuming such other insurance did not exist, bears to the combined total of said amount and the amount which would have been payable under such other insurance on account of said joint loss, assuming fire insurance did not exist, whether other policies covering said loss contain a similar clause or not.'

'The words 'joint loss' as used in the foregoing mean that portion of the loss in excess of the highest deductible, if any, to which fire insurance and such other insurance both apply. Consequently Vermont is liable for its share of the damage incident to the fire of July 6, 1947.'

It was then found that it was conceded and stipulated by the defendants that if jointly liable the amount of such liability was $14,439.49 which became due and payable on March 25, 1948.

The claim and position of Hartford is (1) that Hartford's policy is 'insurance other than fire insurance' under paragraph 4 (part of finding 15) of the Vermont policy; (2) that clause (b) of condition 3 of its polity (finding 14) is similar to paragraph 4 of the Vermont policy and (3) that applying these clauses the joint loss is apportioned on a 50/50 basis.

The claim and position of Vermont is, as stated in its brief, that the sole question involved is whether or not under paragraph 3 (part of finding 15) of its policy the Hartford policy is 'other fire insurance upon the...