Johnson v. Phoenix Assur. Co. of New York

• Decision Date: 16 March 1967
• Docket Number: No. 38583,38583
• Citation: 70 Wn.2d 726,425 P.2d 1
• Court: Washington Supreme Court
• Parties: Waldo E. JOHNSON and Barbara Johnson, his wife, Appellants, v. PHOENIX ASSURANCE COMPANY OF NEW YORK, Respondent.

Page 726

70 Wn.2d 726

425 P.2d 1

Waldo E. JOHNSON and Barbara Johnson, his wife, Appellants, v. PHOENIX ASSURANCE COMPANY OF NEW YORK, Respondent.

No. 38583.

Supreme Court of Washington, Department 2.

March 16, 1967.

Casey & Pruzan, Martin Godsil, Seattle, for appellants.

Clarke, Clarke, Albertson & Bovingdon, Seattle, for respondent.

BARNETT, Judge. ^*

The plaintiffs (appellants before this court) sued upon an insurance policy for damages to their house. This appeal is from a summary judgment dismissing plaintiffs' suit with prejudice because it was not brought within the time limit for commencement of actions on the policy.

The facts are direct and simple. On November 20, 1963, a windstorm caused a tree to fall on and damage the plaintiffs' house. Plaintiffs claimed that the insurance policy they carried with defendant insurer covered such damage. The defendant-insurer denied liability on January 6, 1964. The complaint was filed by the plaintiffs on December 11, 1964, a year and 21 days after the date of the loss. As an affirmative defense to the complaint, the defendant interposed the policy provision which bars liability if suit is not commenced within 12 months after the loss.

The primary question presented by this appeal is whether the insurance policy limitation of action provision is in conflict with RCW 48.18.200, which prohibits an insurance policy provision from limiting the right of action against the insurer to a period of less than one year from the loss. If there is a conflict, the policy provision would be void under the statute.

The pertinent part of RCW 48.18.200 is as follows:

Limiting actions, jurisdiction. (1) No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement

(c) limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances other than property and marine and transportation insurances. In contracts of property insurance, or of marine and transportation insurance, such limitation shall not be to a period of less than one year from the date of the loss.

(2) Any such condition, stipulation, or agreement in violation of this section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.

The insurance policy provides:

'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.'

The plaintiffs contend that grammatically and logically a limitation provision which requires suit to be commenced 'within' a year means that the suit must necessarily be commenced in 'less than' a year, therefore, the limitation provision in the policy violates the statute, and as a consequence is void. In support of this argument, the plaintiffs cite cases from Texas which have construed a statute similar to RCW 48.18.200. The rule expressed in those cases is that a limitation provision which requires commencement of action 'within' a stated statutory period was less than the statutory time period.

There is a decided split in authority on this question with several jurisdictions holding contrary to the construction of the Texas statute. The same semantical argument now urged by the plaintiffs was made in Schlitz v. Lowell Mutual Fire Insurance...