Maier Brewing Co. v. Pacific Nat. Fire Ins. Co.

• Decision Date: 02 August 1961
• Citation: 194 Cal.App.2d 494,15 Cal.Rptr. 177
• Court: California Court of Appeals Court of Appeals
• Parties: MAIER BREWING COMPANY, Plaintiff and Respondent, v. PACIFIC NATIONAL FIRE INSURANCE COMPANY, a corporation, et al., Defendants, Pacific National Fire Insurance Company, Appellant. Civ. 24741.

Page 177

15 Cal.Rptr. 177

194 Cal.App.2d 494

MAIER BREWING COMPANY, Plaintiff and Respondent, v. PACIFIC NATIONAL FIRE INSURANCE COMPANY, a corporation, et al., Defendants Pacific National Fire Insurance Company, Appellant.

Civ. 24741.

District Court of Appeal, Second District, California.

Aug. 2, 1961.

William H. Levit, Herbert Z. Ehrmann, Long & Levit, Los Angeles, for appellant.

Betts, Ely & Loomis, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by defendant Pacific National Fire Insurance Company, called Pacific National, from an interlocutory judgment decreeing reformation of a fire insurance policy issued by it to plaintiff Maier Brewing Company, called Maier.

Maier owned and operated a brewery in Los Angeles. The buildings and equipment were insured against loss by fire by two policies issued by Home Fire and Marine Insurance Company, one effective December 8, 1952 to December 8, 1955, and the other effective January 22, 1953 to January 22, 1956, and a third policy issued by Union Insurance Society effective January 13, 1953 to January 13, 1956. Maier's property included a large lot known as the Gas Company property on which it stored equipment of the value of $318,000. The Home policies covered the equipment on the Gas Company property.

About October 19, 1955 Pacific National, through Behrendt-Levy Insurance Agency issued to Maier a fire insurance policy effective for a term of five years from December 8, 1955 to replace the Home and Union policies. As the coverage under the Home and Union policies did not expire on the same date, endorsements were included on the Pacific National policy increasing the coverage afforded to replace the coverage of the old policies as they expired. The Pacific National policy, as written, did not cover the equipment on the Gas Company property.

About June 30, 1957 a fire occurred on the Gas Company property, damaging and destroying some of the equipment located thereon. Maier, without delay, gave notice of the loss to Pacific National. On July 26, 1957 Pacific National denied liability and gave as its reason that the property damaged and destroyed by the fire was not insured by the policy it had issued to Maier.

Maier then instituted this suit for reformation of the Pacific National policy 'to add to the description of premises covered by said policy 'former Gas Company property near Macy Street', or such other description as the court may deem proper.'

At the pretrial conference the parties stipulated: 'If reformation is granted then all parties agree that an interlocutory decree should be entered and the procedures in the policy should be followed to determine the amount of loss to be paid by defendant to plaintiff. If the parties cannot agree on the amount of loss and further court action is necessary then the court should retain jurisdiction to finally dispose of the matter. In that regard defendant reserves the right to bring in any necessary parties, to pursue further discovery matters, and to raise other issues which relate to the determination of the loss and defendants payment thereof.'

The court found:

'Both plaintiff and defendant, through its agent Behrendt-Levy Insurance Agency, intended and agreed that said policy should cover all property, both real and personal, owned by plaintiff and located in the general area and neighborhood of Aliso and Vignes Streets. The personal property damaged and destroyed by fire on June 30, 1957 was located in said area intended and agreed to be covered, was part of the property intended and agreed to be covered, and was located on a parcel of real property intended and agreed to be described in said policy.

'The location where the fire occurred, and the property located thereon, were a location and property which the defendant agreed to insure in the policy issued by it, but a specific description of said location was inadvertently omitted from the policy, by reason of the mutual mistake of the parties.'

The court rendered an interlocutory judgment reforming the policy issued by Pacific National to include a specific description of the Gas Company property; adjudging that Maier pay Pacific National an additional premium of $2,239.49; adjudging that Maier is entitled to be paid by Pacific National a sum equal to the actual cash value, at the time of the loss, of the property of Maier damaged or destroyed by fire on June 30, 1957, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss; and adjudging:

'4. That, pursuant to stipulation of the parties, the procedures prescribed in the policy should be followed by the parties to determine the amount of loss to be paid by defendant to plaintiff.

'5. That if the parties are unable to agree on the amount of said loss, and further Court action is necessary, the Court retains jurisdiction, upon application of either party, finally to dispose of the matter by determining the amount of the loss which defendant shall be obligated to pay to plaintiff, and to make and enter a judgment for said amount.'

Pacific National appeals.

Maier contends the judgment rendered is not a final judgment and that it is not appealable. We agree.

'The law applicable has been stated as follows: 'An appeal lies only from a final judgment unless an appeal from an interlocutory decree or judgment is expressly authorized by law.' Bakewell v. Bakewell, 21 Cal.2d 224, 226, 227, 130 P.2d 975, 977. 'There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it is entered, and finally determines the rights on the parties in relation to the matter in controversy.' Stockton etc. Works v. Glens Falls Ins. Co., 98 Cal. 557, 577, 33 P. 633, 637; Nolan v. Smith, 137 Cal. 360, 361, 70 P. 166; Bank of America v. Superior Court, 20 Cal.2d 697, 701, 128 P.2d 357. A judgment is final 'when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.' Doudell v. Shoo, 159 Cal. 448, 453, 114 P. 579, 581.' David v. Goodman, 89 Cal.App.2d 162, 165, 200 P.2d 568, 570.

'It has been said of subsection 1 of said section 963, authorizing an appeal from 'a final judgment' that '[t]his provision states the final judgment rule, or rule of one final judgment, a fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.' 3 Witkin, California Procedure, p. 2151.' Efron v. Kalmanovitz, 185 Cal.App.2d 149, 8 Cal.Rptr. 107, 110.

'No provision is made in ...