Johnson v. Calvert Fire Ins. Co.

• Decision Date: 28 November 1944
• Citation: 183 S.W.2d 941,298 Ky. 669
• Parties: JOHNSON v. CALVERT FIRE INS. CO.
• Court: Kentucky Court of Appeals

183 S.W.2d 941

298 Ky. 669

JOHNSON v. CALVERT FIRE INS. CO.

Court of Appeals of Kentucky

November 28, 1944

Appeal from Circuit Court, Perry County; Roy Helm, Judge.

Suit by Victoria Johnson against Calvert Fire Insurance Company for loss of automobile by fire. From a judgment for defendant the plaintiff appeals.

Judgment affirmed.

Courteny C. Wells, of Hazard, for appellant.

William Mellor, of Louisville, and G. C. Wilson, of Hazard, for appellee.

MORRIS Commissioner.

On January 22, 1941, appellant purchased from the Gene Baker Motor Company an automobile for $1266, with cash payment of $522. The balance of $744 was financed through the Commercial Credit Corporation under a plan for payment of $50.94 in installments over a period of 18 months. The Motor Company procured for appellant a policy from the Calvert Fire Insurance Company indemnifying her against damages resulting from various causes, including loss by fire, she paying the premium. It provided for $1,000 indemnity to cover the value of the car at the time of damage, less a $50 deduction. At the time of the damage complained of appellant had made payment of six monthly installments as per contract.

On July 29, 1941, the car ran off the road; was upset and burned resulting in its complete destruction. She alleges that she gave due and timely notice to the motor company, finance company, and the insurer; that 'they' took possession of the car and have 'refused to make any adjustment, or to pay the damage and loss resulting from the accident, although she has at numerous times tried to obtain adjustment as provided by the policy.' She alleged that on January 22, 1942, she wrote the Western Adjustment Company at Lexington, agent of the Commercial Credit Corporation, seeking adjustment, and received a reply to the effect that 'the adjuster is out of the city, and on his return the matter would be called to his attention.' Her attorney also, in July 1942, wrote to the Credit Company seeking adjustment, and likewise to the insurer about the same date. These facts are alleged in her petition filed on October 5, 1942, in which she fixed the value of her car at the time of injury at $1,000, less a deduction of $50 seeking judgment against all three companies for that amount.

In her petition, apparently anticipating a defense, she sets out that clause of the policy reading: 'No suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity * * * unless commenced within twelve (12) months next after the happening of the loss; provided that where such limitation is prohibited by the laws of the State wherein the policy is issued, then in that event no suit or action under the policy shall be sustainable unless commenced within the shortest limitation permitted under the laws of such state.'

Appellant alleged that notwithstanding her futile efforts to reach adjustment that 'neither of these defendants denied liability, but made excuses to delay an adjustment of the matter until more than a year had elapsed from the date of the accident, and that then the defendant, Commercial Credit Corporation, through its agent, Adjustment and Inspection Company, informed her that it would rely upon the limitation provision above set out.' Her petition sought relief from all three defendant companies, and they in due time demurred to the petition on the ground that the pleading showed that under the terms of the policy the action was barred. Before the court could pass on the demurrer, appellant amended and plead apparently all facts upon which she relied, i. e., the defendants by their acts in the premises had estopped themselves from resort to the plea of limitation. She sets out in full several letters (in addition to the one supra), all written almost a year following the destruction of the automobile. In a letter of July 2, 1942, addressed to the Adjustment Company, Middlesboro, appellant's attorney detailed the facts relating to purchase, payments, insurance, and the destruction of the car, and the repossession by some or all of the defendants. This letter (referring to appellant) stated:

'She has requested me to say that in the event the car is a total loss, she is ready and able to pay the $50 and have the Acceptance Corporation or the Motor Company deliver her a new car, or that if it was not a total loss and can be or has been repaired she is willing to pay the $50 under her policy and take the car back. It is needless for me to say that we would much rather be able to dispose of this matter out of court if we can possibly do so, and I frankly see no reason why this cannot be done. * * * I would appreciate it if you would let me hear from you promptly.'

The Adjustment Company replied on July 6, informing the attorney that its adjuster was on vacation, and suggesting that its files did not show that Miss Johnson's claim had been assigned to it. Further: 'We are wondering if the loss had been reported to the insurance carrier, as it would be necessary that we receive the assignment either from the carrier ro the finance company. It would be our suggestion that the motor company be again contacted to ascertain if the loss has been reported to the proper authorities. P. S. As soon as we receive the assignment of this loss we will give our prompt attention.'

Appellant's attorney then called the motor company and was advised by the manager to write the finance corporation, and on July 9th he did no, the letter being a duplication of the July 2d letter, making the same proposal of adjustment. On July 18th the credit corporation wrote:

'We wish to advise that this purchaser allowed her account to become delinquent and due in full. Also the matter of loss was referred to Western Adjustment Company at Middlesboro by the Calvert Fire Insurance Company. We are advised by the Adjustment Company that they have made numerous efforts to contact Miss...