Martin v. Sun Ins. Office of London
| Decision Date | 03 March 1922 |
| Citation | 83 Fla. 325,91 So. 363 |
| Parties | MARTIN v. SUN INS. OFFICE OF LONDON. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.
Suit by W. T. Martin, administrator of the estate of Sam A. Moore deceased, against the Sun Insurance Office of London. Judgment for plaintiff for less than the amount of the insurance policy sued on, and plaintiff brings error.
Reversed.
Syllabus by the Court
Valued policy statute held not unconstitutional. The valued policy statute of this state (section 4281, Revised General Statutes 1920) is not repugnant to the provisions of the Constitution of this state nor of the United States.
Where several concurrent fire policies were written, their aggregate amount is the value of the property insured notwithstanding clauses limiting liability. Where several concurrent policies of fire insurance are written upon building or structures with the knowledge or consent of the several insurers, the aggregate amount of all such policies is the value of the property insured, notwithstanding clauses in such policies purporting to limit liability of the insurer to a less amount.
Contract between insurer and mortgagee under standard mortgage clause is not subject to forfeiture for act or omission of insured. The contract between an insurer of real estate and a mortgagee of the insured premises under the standard mortgage clause is independent of the principal contract of insurance contained in the policy between the insurer and the assured owner of the premises, and is not subject to forfeiture by reason of any act or omission of the person originally insured.
Doubtful terms of policy should be construed in favor of insured. Since the insurer usually selects the language employed doubtful terms in an insurance policy should be liberally construed in favor of the insured, so as not to defeat without plain necessity, his indemnity, which in taking the insurance it was his object to secure.
Mortgagee need not accept less than amount of policy, although it provided insurer should be liable for no greater proportion of the loss than the amount policy bore to all the insurance. Under a standard mortgage clause in a fire insurance policy upon real estate providing that the insurance as to the interest of the mortgagee shall not be invalidated by any act or neglect of the mortgagor or owner, the mortgagee is not required to accept, in settlement of his claim for total loss sustained, less than the amount of his policy, where the owner, without his knowledge or consent, obtains additional insurance upon the mortgaged property, notwithstanding the mortgage clause contains a provision that the insurer shall not be liable under the policy for a greater proportion of any loss sustained thereunder than the amount of such insurance bears to the whole amount of insurance on the property.
Guy A. Andrews, of Sebring, and Joseph E. Williams, of Tampa, for plaintiff in error.
This suit was brought by plaintiff as representative of the deceased mortgagee to recover from defendant, a fire insurance company, the amount of a policy of insurance issued by it covering a dwelling house in the city of Tampa. Under a standard mortgage clause attached by the insurer to the policy, loss, if any sustained thereunder, was made payable to the deceased mortgagee. The amount of the indebtedness secured by the mortgage upon the building and land upon which it was situated was in excess of $2,000. The policy, a New York standard form, was for $2,000. The building insured was subsequently destroyed by fire; the loss being total. At the time of its destruction title to the propery rested in Dalsedia Ross, the mortgagor.
The declaration, which is in substantially the statutory form, alleges the issuance of the policy sued on for the consideration stated to the then owner of the property, insuring him against loss by fire to the amount of $2,000 for a term of three years from the date of the issuance of the policy; the transfer of the property insured to the holder of the legal title at the time of the loss; the execution of the mortgage by such owner to plaintiff's intestate on the building insured and the land upon which the same was situated for the sum of $2,000, covering said property; the destruction of the building by fire and loss thereby occasioned to the amount of $3,700 under such circumstances as to come within the terms of the policy and to render liable the defendant insurer upon the policy to the amount of $2,000, of which loss defendant had notice within the time fixed in the contract. It further alleges that the policy contained a provision that loss or damage, if any sustained thereunder, should be payable to the deceased as first mortgagee as his interest should appear, and that said policy as to said mortgagee should not be invalidated by any act or neglect of the mortgagor or owner of said property; that said owner was indebted to the deceased mortgagee at the time of the destruction of the building in a sum exceeding the amount of said insurance on said building and in a sum in excess of the value of all securities held by him; that although all conditions have been performed and fulfilled, and all events and things existed and happened, and all periods of time have elapsed to entitle the plaintiff to a performance by the defendant of said contract, and to entitle plaintiff to the said sum of $2,000, and nothing has occurred to prevent the plaintiff from maintaining this action, yet the said defendant has not paid or made good to said plaintiff said amount of the loss and damage aforesaid, or any part thereof, but refuses to do so. The death of the mortgagee and the appointment and qualification of plaintiff as his administrator are alleged. The policy is attached to and made a part of the declaration.
To this declaration the defendant filed four pleas, two of which were held bad upon demurrer, but as to the other two the demurrer was overruled.
By one of the latter pleas it is averred that, on or before the date of the alleged loss, there was other insurance issued to and held by the owner of the property to the amount of $1,325, and so it is that the defendant is not liable because of the policy of insurance sued upon in any sum in excess of 2000/3325 of $2,000, the amount of the policy.
By the other it is averred that defendant is liable to plaintiff only by virtue of the 'mortgage clause' of said policy, which provides among other things, that 'in case of any other insurance upon the within described property, this company shall not be liable under this policy for a greater proportion of any loss or damage sustained than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee or otherwise'; that there was other insurance upon said property issued to and held by a party having an insurable interest therein, namely, the said owner; that said other insurance was in the sum of $1,325; that the insurable value of the building was fixed in the contract sued on at $2,000, and therefore the loss or damage to said building sustained by reason of the fire did not exceed $2,000, and defendant is not liable under said contract for any sum in excess of 2000/3325 of $2,000, the amount of the policy sued on.
Plaintiff filed replication to these pleas, which was demurred to by defendant. Upon a hearing this demurrer was sustained. Plaintiff thereupon refused to plead further, and judgment was entered by the court in favor of plaintiff and against defendant, but for an amount less than the full amount of the policy sued on. To review this judgment plaintiff took writ of error.
By assignments of error two closely related questions are raised, both of which are argued and insisted upon in the brief filed in behalf of plaintiff.
The first presents the question of the effect of the valued policy statute in its application to the facts of this case. With respect to this question it is contended generally that notwithstanding the policy provisions fixing the insurable value of the building destroyed at $2,000, permitting no concurrent insurance and providing that the insurer 'shall not be liable under this policy for a greater proportion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property issued to or held by any party or parties having an insurable interest therein,' still, under the provisions of the valued policy statute of this state (sections 4281, 4282, 2728,...
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