Juker v. American Livestock Ins. Co.

• Decision Date: 03 March 1981
• Docket Number: No. 13280,13280
• Parties: George C. JUKER, Plaintiff-Respondent, v. AMERICAN LIVESTOCK INSURANCE COMPANY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 792

637 P.2d 792

102 Idaho 644

George C. JUKER, Plaintiff-Respondent, v. AMERICAN LIVESTOCK INSURANCE COMPANY, Defendant-Appellant.

No. 13280.

Supreme Court of Idaho.

March 3, 1981.

On Rehearing Nov. 23, 1981.

James C. Tucker, Nelson, Rosholt, Robertson, Walker, Tolman & Tucker, Twin Falls, for defendant-appellant.

Robert C. Weaver, Weaver & Dykas, Buhl, for plaintiff-respondent.

DONALDSON, Justice.

This is an appeal from a summary judgment in an action brought by plaintiff-respondent Juker against defendant-appellant American Livestock Insurance Company to establish liability on a livestock mortality policy issued to insure a racehorse. Summary judgment was granted in favor of respondent Juker. We reverse and remand with directions that summary judgment be granted in favor of appellant insurance company.

The insurance company issued the policy to insure against loss through death of the racehorse occurring while the policy was in force. Approximately twelve days before coverage under the policy expired, the racehorse sustained severe injury, a slab fracture of the left front knee. Approximately four days after expiration of the policy, Juker telephoned the insurance company and reported the injury. Subsequently, the insurance company, through telephone conversation and written correspondence, contacted the attending veterinarian who apprised the company of the horse's condition. Approximately 80 days after expiration of the policy, the veterinarian further corresponded with the insurance company specifically advising that the horse be euthanized for humane reasons.

The insurance company did not consent to the euthanasia but, rather, denied coverage for the expected loss of the racehorse primarily upon the basis that there had been In construing an insurance contract, the rule in Idaho is that intent is to be determined from the language of the contract itself and in the absence of ambiguity, the contract must be construed as any other and understood in its plain, ordinary and proper sense, according to the meaning derived from the plain wording of the contract. Casey v. Highlands Insurance Co., 100 Idaho 505, 600 P.2d 1387 (1979); Corgatelli v. Globe Life & Accident Insurance Co., 96 Idaho 616, 533 P.2d 737 (1975) (Donaldson, J., dissenting opinion).

no loss through death during the policy period. Juker, in response, initiated proceedings in the district court seeking coverage. Summary judgment was directed in favor of Juker. The insurance company appeals.

The insurance contract in the instant case clearly provides insurance against loss through death of the racehorse occurring while the policy is in force, resulting from natural causes or illness or disease or accident, subject, however, to the pertinent exclusion that there is no coverage for intentional slaughter of the insured animal unless with the consent of the insurance company. Review of the record discloses that there was no loss through death during the policy period, either through intentional slaughter or otherwise.

The policy plainly and unambiguously sets forth its terms of coverage and its termination date. No extension of policy period is provided. The plain wording of the policy controls. There has been no covered loss during the policy period; there can be no recovery. Casey v. Highlands Insurance Co., supra; Leach v. Eureka Life Insurance Co., 580 S.W.2d 628 (Tex.Civ.App.1979); Underwriters at Lloyds, London v. Harkins, 427 S.W.2d 659 (Tex.Civ.App.1968).

Accordingly, we reverse the order of the district court and remand with directions that summary judgment be entered in favor of defendant-appellant American Livestock Insurance Company. Although appellant made no motion for summary judgment, where one party moves for summary judgment and the other is entitled to it, the court may grant summary judgment in favor of the non-moving party. Just's, Inc. v. Arrington Construction Company, Inc., 99 Idaho 462, 476, 583 P.2d 997, 1011 (1978) (on denial of petition for rehearing). Appellant did assert the defense of failure to state a claim, I.R.C.P. 12(b), and prayed for dismissal of all claims against it. Additionally, following plaintiff-respondent's motion for summary judgment, both parties submitted affidavits and made oral argument. Both sides had adequate opportunity to show whether a genuine issue existed. Such presents appropriate circumstance for the district court to properly grant summary judgment to appellant. See Just's, Inc. v. Arrington Construction Company, Inc., supra; Idaho State University v. Mitchell, 97 Idaho 724, 733, 552 P.2d 776, 785 (1976); Glenn Dale Ranches, Inc. v. Shaub, 94 Idaho 585, 587 n. 4, 494 P.2d 1029, 1031 n. 4 (1972); 10 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2720 (1973).

Reversed and remanded.

BAKES, C. J., and McFADDEN, J., concur.

BISTLINE, Justice, dissenting.

Convinced that Judge Ward had a better grasp of the case than does the Court, as reflected in the opinion announced today, and being unable to see any manner wherein Judge Ward erred, I would affirm.

The majority reads this policy in accordance with the simplistic and unrealistic contention of the company by holding that where "(t)here has been no covered loss during the policy period; there can be no recovery," period. Such a reading ignores both the realities of the contract and the findings of the trial court.

For this proposition the Court cites two cases from Texas, neither of which has anyapplication. Leach v. Eureka Life Insurance Co., 580 S.W.2d 628 (Tex.Civ.App.1979), was, as one might surmise from the caption, a life insurance case, the life insured and there involved, however, not being Juker's policy, however, is not a policy which pays for the death of a person during a fixed term. Nor does it involve a horse who sickens during the policy term, and dies thereafter. Rather it involves only The Red Pony who was, so to speak, fatally injured during the policy term, but not dying, and in need of euthanasia. It is better, perhaps, to examine Judge Ward's decision with close regard to the policy provisions.

the life of a horse. ¹ The other case from Texas, Underwriters at Lloyds, London v. Harkins, 427 S.W.2d 659 (Tex.Civ.App.1968), did involve a horse, "Benedicto." Benedicto, unlike The Red Pony, was not injured and never recommended for euthanasia. Such was not the issue in Benedicto's case. Benedicto, as was the case with Mr. Leach, simply died after the policy in question had expired. Unlike the policy covering The Red Pony which had a one year term, and no provision covering the situation which developed when The Red Pony was injured near the expiration date, the Benedicto policy contained a 30 day extension clause-that is, 30 days beyond the policy term, and covering the death of Benedicto from any illness which had manifest itself during the period of insurance-provided, however, that the illness had been reported to Underwriters in writing before the contract term expired. Failure to gain an extension was the issue. The holding of the Texas court was simply that "(b)y the policy terms, affirmative action on the part of the appellees (owners) was necessary to prevent the automatic termination of the policy on October 31, 1962, and it was uncontested that appellees (owners) failed to give such notification." 427 S.W.2d at 662.

First it must be asked exactly what was required of Juker when The Red Pony became injured. The answer is found under the caption CONDITIONS, P 5, and reads that:

"It is a condition precedent to any liability that ... (b) in the event of any ... injury, accident, or physical disability whatsoever ... the Assured shall immediately at his own expense employ a qualified Veterinary Surgeon...."

Although the policy does not specifically say so, implicit in its language is the idea that the employed veterinary surgeon use his best efforts and skills (at Juker's expense, nonrecoverable) in saving the horse from destruction. The record is clear that Juker did comply; ² the company here conceding in its brief that Dr. Monroe examined the horse on January 10, 1978, and undertook its care.

The company also concedes: (1) that it was advised of the injury on January 25, 1978, and that it made inquiry of Dr. Monroe as to the nature of the injury; (2) that the company asked for and received Dr. Monroe's report, by return mail; and (3) that the report was "unfavorable" for racing.

The record is clear that Dr. Monroe (at Juker's expense, nonrecoverable under the policy) continued to treat The Red Pony and by letter dated April 15, 1978, advised that humane reasons necessitated its destruction.

The company, true to its contention that The Red Pony, as is the case with a human whose life is insured, had to actually be dead within the policy period, in its brief concedes that "The Company denied coverage for the expected loss of The Red Pony It is true, as the company tells us, that The Red Pony did not die within the policy term. The reasons why it did not die are at once obvious. The company's policy required of Juker, as a condition precedent to any recovery, that he hire a veterinarian and spend money in an attempt to save it-which Juker did as pointed out. Juker could have killed the horse, ³ but then where was he? (And, equally pertinent-who was he who would do such a thing without fully exploring the possibility of saving the animal?)

upon the basis that the policy, as originally issued, covered losses through death of insured animals while the policy was in force...."

His contract of insurance, which in my view the Idaho Commissioner of Insurance should require to be imprinted with a Catch-22 warning, was very explicit as to Juker's right to do away with the horse-he could not do so without also doing away with his right to the insurance proceeds.

Having complied with the policy condition that he hire a veterinarian and attempt to save the horse, Juker was by...