Long v. State Farm Fire & Cas. Co.

• Decision Date: 29 March 1974
• Citation: 510 S.W.2d 517
• Court: Tennessee Court of Appeals
• Parties: Samuel Carl LONG, Appellant, v. STATE FARM FIRE & CASUALTY CO., and Cherokee Insurance Company, Appellees.

Page 517

510 S.W.2d 517

Samuel Carl LONG, Appellant, v. STATE FARM FIRE & CASUALTY CO., and Cherokee Insurance

Company, Appellees.

Court of Appeals of Tennessee, Western Section.

March 29, 1974.

Certiorari Denied by Supreme Court June 3, 1974.

Jack J. Green, Nashville, for appellant.

Joseph G. Cummings, Nashville, for appellee, Cherokee Ins. Co.

NEARN, Judge.

The Chancellor granted defendant's, Cherokee Life Insurance Company, motion for summary judgment and dismissed the suit as to Cherokee. The plaintiff has appealed from this action of the Chancellor; citing it as error.

The complaint names Cherokee and State Farm Insurance Company as defendants. The proceedings below are held in abeyance as to State Farm awaiting the outcome of this appeal.

Long filed a four count complaint against Cherokee and State Farm. In the first count it is alleged that plaintiff had two policies of fire insurance on his home which home was encumbered by a mortgage or deed of trust. That while the policies were in effect his home burned on January 22, 1971. Further, subsequent to the fire, Cherokee paid the mortgage holder the balance due on the mortgage but has failed and refused to pay the difference between the mortgage balance and the amount of the policy to plaintiff. The complaint charges that after repeated attempts to negotiate the matter, Cherokee refused to pay and on January 3, 1973, Cherokee refused to negotiate any further.

Long filed suit on January 12, 1973.

The policy of insurance provides for filing of proof of loss within sixty days from loss and that no suit against the insurer may be filed unless policy provisions are met and suit commenced within twelve months after loss.

Cherokee first answered and then filed its motion for summary judgment.

Submitted with Cherokee's motion for summary judgment was the affidavit of T. L. Hunt, adjuster for Cherokee. The affidavit is to the effect that Hunt investigated the loss of January 22, 1971, and settled the claim of the mortgagee in December, 1971. In July of 1971 he was put on notice that Melvin Butler represented Long, but that nothing further was heard from either the insured or his counsel until January 3, 1973, which was almost two years after the loss. That on December 16, 1971, Hunt had closed his file as no proof of loss had ever been filed.

No counter affidavits were filed by Long.

The Chancellor held that the policy requirements had not been met, which failure was admitted and neither by pleading nor affidavit had anything close to a reason for failure been given, nor had any circumstances been alleged from which it could be said that Cherokee waived the policy provisions.

We would admit that if we confined our reading of the pleadings to only the first count of the complaint and the defendant's affidavit, a serious question would arise as to whether or not the plaintiff could continue to maintain his action. However, we do not feel that we are...