Pepsi Cola Bottling Co. of Anchorage v. New Hampshire Ins. Co., 567
| Decision Date | 26 November 1965 |
| Docket Number | No. 567,567 |
| Citation | 407 P.2d 1009 |
| Parties | PEPSI COLA BOTTLING COMPANY OF ANCHORAGE, Inc., Appellant. v. NEW HAMPSHIRE INSURANCE COMPANY, Insurance, Inc., and Lewis E. Simpson, Appellees. |
| Court | Alaska Supreme Court |
D. A. Burr, Burr, Boney & Pease, Anchorage, for appellant.
Daniel A. Moore, Jr., Delaney, Wiles, Moore & Hayes, Anchorage, for appellee New Hampshire Ins. Co.
David H. Thorsness, Hughes, Thorsness & Lowe, Anchorage, for appellees, Insurance, Inc. and Lewis E. Simpson.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
Before us for consideration is the propriety of the action of the trial court in granting summary judgment for appellees based on its interpretation of certain policies of insurance.
Appellant's complaint alleged four separate claims as follows:
(1) Against New Hampshire Insurance Company in the amount of $50,938.57 for refusal to pay for on-premises earthquake loss to the contents of appellant's building which was covered by a policy issued by New Hampshire through its agents Insurance, Inc. and Lewis E. Simpson.
(2) For breach of contract by the appellees New Hampshire, Insurance, Inc. and Simpson for failure to procure insurance for appellant identical in coverage to that cancelled by appellant in favor of the New Hampshire policy furnished by the appellees (defendants).
(3) For negligently failing to procure earthquake coverage for appellant in accordance with an express contract to do so.
(4) For fraud and deceit in misrepresenting the coverage provided by the New Hampshire policy.
After the pleadings and a number of depositions and exhibits had been filed, appellant moved for summary judgment, which was denied. Appellees' later motions for summary judgment were granted.
The following facts were before the court.
Until January 1, 1962, the contents of appellant's business building in Anchorage were insured against loss from earthquake damage by an Indemnity Marine Assurance Company, Ltd. policy. Mr. Alfred White of the Seattle firm of Bowles, White & Co., Inc., had procured the policy for appellant.
Earthquake coverage under the Indemnity policy was provided by boxing in with inked lines paragraph 7(h) under 'PERILS EXCLUDED', which read:
(h) Loss or damage to property at any premises of the Assured (whether owned, rented, leased or otherwise occupied by, or in storage in warehouse space arranged by or for the account of the Assured) caused by or resulting from earthquake unless such coverage is specifically endorsed hereon, but this exclusion shall not apply to loss or damage by ensuing fire, explosion, sprinkler leakage or theft not otherwise excluded by this policy;
and stamping the words 'DELETED' in two places across the boxed in paragraph. Endorsement No. 5 was added to the policy and read:
It is understood and agreed that each claim for loss or damage from flood or earthquake (separately occurring) shall be adjusted separately and from the amount of each such adjusted claim or the applicable limit of liability, whichever is less, the sum of $500.00 shall be deducted.
Because it developed that Indemnity Marine could no longer carry the entire coverage for appellant, White, without the knowledge or consent of appellant, cancelled the Indemnity Marine policy effective January 1, 1962. White then obtained a Sun Insurance Office, Ltd. policy, which, according to his testimony by deposition, provided earthquake coverage on the contents of appellant's building.
The relevant provisions of the Sun policy with respect to earthquake coverage of the contents of appellant's building are:
6. PERILS INSURED
This policy insures against:
(a) All risks of direct physical loss of or damage to the insured property from any external cause * * *
* * *
* * *
7. PERILS EXCLUDED
This policy does not insure against:
* * *
* * *
(h) Loss or damage to property at any premises of the Assured (whether owned, rented, leased or otherwise occupied by, or in storage in warehouse space arranged by or for the account of the Assured) caused by or resulting from earthquake unless such coverage is specifically endorsed hereon, but this exclusion shall not apply to loss or damage by ensuing fire, explosion, sprinkler leakage or theft not otherwise excluded by this policy;
* * *
* * *
12. DEDUCTIBLE
In the event of loss or damage covered hereunder this Company shall be liable only for the amount of such loss or damage in excess of $50.00. The foregoing deductible shall not, however, apply to loss or damage by fire, lightning, explosion, windstorm, cyclone, tornado, hail, riot, riot attending a strike, smoke, damage by vehicles or aircraft, accident to transporting conveyance, burglary, holdup, or loss or damage to insured property in due course of transit in the custody of transportation companies or carriers for hire; nor shall this deductible apply to property covered under Clause 3(b) hereof
after 'hereof' above, the typewritten phrase:
or flood or earthquake;
was added.
13. LIMITS OF LIABILITY
* * *
* * *
(b) $1,000. While away from premises of the Assured at any exhibition promoted or financially assisted by any Public Authority or by any Trade Association;
(c) $2,500. Property elsewhere within the territorial limits of this policy except while in transit;
(d) $5,000. Property in transit.
The following endorsement was typewritten and dated the same day as the printed policy.
It is understood and agreed that each claim for loss or damage from flood or earthquake (separately occuring) shall be adjusted separately and from the amount of each such adjusted claim or the applicable limit of liability, whichever is less, the sum of $500.00 shall be deducted.
In the spring of 1962, sales representatives of the appellee Insurance, Inc. solicited officials of appellant company for its insurance coverage and were advised that the coverage could be had provided the same coverage was furnished at the same or a less premium as that of the Sun policy. The Sun policy was given to an officer of Insurance, Inc. and used by him to solicit similar or identical coverage and competitive rate from New Hampshire Insurance Company. As a result of these efforts, New Hampshire Insurance Company issued a policy in favor of appellant on July 1, 1962, which was in effect on March 27, 1964, when a severe earthquake in Anchorage inflicted extensive damage to the contents of appellant's building. All parties agree that under the facts Insurance, Inc. was obligated to furnish identical coverage to that provided by the Sun policy.
With respect to earthquake coverage the New Hampshire policy stated:
LIMITS OF LIABILITY
3. This policy insures in an aggregate amount not exceeding $330,000.00 but the maximum liability of the Company resulting from any one loss, disaster or casualty, including expenses and charges or all combined, is limited to:
* * *
* * *
B. $5,000.00. On property while in due course of transit;
C. NIL. On property while away from locations described in Paragraph 3A, in the custody or control of the Assured or his or their employees when acting as salesmen; but not exceeding $ _____ in the custody of any one salesman;
D. $2,500.00. On property located elsewhere within the territorial limits of the policy except as described in (A), (B) and (C) above.
* * *
* * *
5. This policy insures against all risks of direct physical loss of or damage to the insured property from any external cause except as hereinafter excluded.
* * *
* * *
6. This policy does not insure against loss or damage caused by:
* * *
* * *
(h) Earthquake, excepting damage caused by ensuing fire. This exclusion does not apply to property in due course of transit nor while in the custody or control of the assured or his or their employees when acting as salesmen.
* * *
* * *
8. DEDUCTIBLE CLAUSE
Claim for each loss or damage shall be adjusted separately and from the amount of each such adjusted claim or the applicable limit of liability, whichever is less, the sum of $25. shall be deducted. Such deductible shall not apply, however, to loss or damage caused by fire, lightning, windstorm, hail, explosion, riot, riot attending strike, smoke, damage by vehicles or aircraft, burglary, or hold-up.
An endorsement with the same date as that of the policy stated:
It is understood and agreed that each claim for loss or damage from flood or earthquake (separately occurring), at premises not owned, rented, leased or otherwise occupied by, or in storage in warehouse space arranged by or for the account of the assured, shall be adjusted separately and from the amount of each such adjusted claim or the applicable limit of liability, whichever is less, the sum of $500.00 shall be deducted.
In arguing their respective motions the parties treated as controlling the issue of whether or not the Sun and New Hampshire policies provided on-premises earthquake coverage to the contents of appellant's building. The judgment specifically provided that the Sun policy did not provide earthquake coverage on contents, that the New Hampshire policy provided the same coverage as did the Sun policy, and that the defendants' (appellees') obligations to plaintiff (appellant) were fully discharged by securing the New Hampshire policy.
Appellant refers us to a rule of construction, with which we are in...
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