Miller v. Northern Insurance Co.
| Decision Date | 22 August 1944 |
| Citation | 42 Del. 523,39 A.2d 23 |
| Court | Delaware Superior Court |
| Parties | NATHAN MILLER, INCORPORATED, a Delaware Corporation, v. NORTHERN INSURANCE COMPANY, OF NEW YORK, a Corporation |
Superior Court for New Castle County, May Term, 1944.
Demurrer to declaration.
The demurrer to the first, second, fourth and sixth counts is overruled and is sustained as to the third count.
William Prickett for the plaintiff.
Albert L. Simon for the defendant.
OPINION
The plaintiff sued upon an insurance policy indemnifying it against damage through sprinkler leakage, by the terms of which policy formal proof of loss was required to be rendered within sixty days. Proof of loss was not filed within the stipulated time, but the plaintiff, in excuse alleged waiver and estoppel. The defendant demurred generally.
The fifth count of the declaration, based on waiver, and all of the counts, based on estoppel, were conceded to be defective in substance and require no consideration. The remaining counts, based on waiver, did not allege the time of the occurrence of the acts relied on as constituting waivers of the proof of loss requirement, and it was admitted, for the purpose of the argument, that such acts occurred after the expiration of the sixty day period.
The defendant's argument is that waiver and estoppel are fundamentally equitable doctrines, and are frequently used by the courts, especially in insurance cases, as convertible terms; that waiver is necessarily based on some act or declaration of the insurer by which the insured is caused to believe that rendition of proof of loss within the stipulated time would not be required; and, consequently, any act of the insurer occurring after the expiration of the period cannot logically be said to have induced the insured's failure to render proof of loss within the prescribed time. In short, the contention is that waiver of the provision cannot be implied after the expiration of the stipulated period.
North British & Mercantile Insurance Co. v. Lucky Strike Oil & Gas Co., 70 Okla. 146, 173 P. 845, 22 A. L. R. 398, and Buysse v. Connecticut Fire Ins. Co., 240 Ill.App. 324, so hold; and the conception that waiver is based on some element of estoppel is, in some degree, supported by two cases in this State. In Reed v. Continental Insurance Co., 22 Del. 204, 6 Penne. 204, 65 A. 569, the defendant's adjuster, within the time prescribed for filing proof of loss, told the insured to make a list of the goods with cost and value, and in a week or so he would settle. The case was submitted to the jury on the theory of waiver, the term being used throughout the charge of the court, but the jury were told that if they found that the adjuster had so spoken and acted as to induce in the mind of an ordinarily reasonable person the belief that no formal proof of loss would be required, and that the plaintiff had a right to rely on the statements and did rely on them, and for that reason did not furnish proof of loss, such conditions would amount to a waiver on the part of the insurer. In Emory v. Glens Falls Ins. Co., 23 Del. 101, 7 Penne. 101, 76 A. 230, where the evidence with respect to the conduct of the company's adjuster was much the same, the court charged the jury in similar language.
It is permissible, therefore, to conceive that the court was of opinion that waiver was based on some element of estoppel.
In a later case, Jones v. Savin, 29 Del. 68, 6 Boyce 68, 96 A. 756, not, however, an insurance case, on a motion for a new trial, the Court examined carefully the differences between the two doctrines of waiver and estoppel, and concluded that while there is similarity between them, the differences are essential, and that a waiver may be created by acts or declarations insufficient to create a technical estoppel. At the retrial of the case, 6 Boyce 180, 97 A. 591, the jury was instructed that while the conduct of the defendant did not constitute an estoppel, yet it might be considered in determining whether a waiver of right had been created.
In Keil Motor Co. v. Royal Insurance Co., Ltd., 6 W. W. Harr. (36 Del.) 24, 171 A. 201, the plaintiff sued on a fire insurance policy providing for the filing of proof of loss within ten days. Proof of loss was not filed as required by the policy, but the plaintiff relied on the conduct of the insurer after the expiration of the ten day period as constituting waiver. The defendant, demurring, contended that waiver is necessarily based on some element of estoppel, and there could be no implied waiver of the prescribed term for filing proof of loss after the expiration of the time stipulated. The Court, citing Jones v. Savin, supra, was of opinion that there may be a waiver of existing rights without any element of estoppel, and held that waiver had been sufficiently alleged.
Any one may forego a right intended for his own benefit in the absence of some rule of public policy. A waiver is the intentional relinquishment of a known right, either in terms or by such conduct as clearly indicates an intention to renounce a known privilege or power. It involves both knowledge and intent, and is based on the idea of consent, express or implied. In strictness, waiver is referable to the act or conduct of one party only. It depends on what one party intended to do, rather than upon what he induced his adversary to do, as in estoppel. The doctrine does not necessarily imply that one party to the controversy has been misled to his detriment in reliance on the conduct of the other party; and waiver is not only consistent with, but is generally created upon knowledge of all the facts by both parties. There may, therefore, be a waiver of an existing right apart from any element of estoppel. Waiver implied from circumstances is a question of fact dependent upon the particular facts of the case, and it is usually for the jury to say whether the conduct of the party evidences a conscious and voluntary abandonment of some right or privilege.
On the other hand, estoppel has a tortious quality, and is maintainable only where the conduct of the one party has induced another to change his position for the worse, in which case the law vests the consequences upon him who is the author of the mischief by declaring an estoppel.
In particular, the conduct of an insurer may not have misled the insured to his prejudice; yet if conscious of its right, the insurer has evidenced an intention to renounce the advantage of a stipulated cause of forfeiture, either expressly or by clear implication, the law, zealous...
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