A. Perley Fitch Co. v. Continental Ins. Co.

• Decision Date: 21 April 1954
• Parties: , 49 A.L.R.2d 156 A. PERLEY FITCH CO. v. CONTINENTAL INS. CO.
• Court: New Hampshire Supreme Court

Page 511

104 A.2d 511

99 N.H. 1, 49 A.L.R.2d 156

A. PERLEY FITCH CO. v. CONTINENTAL INS. CO.

Supreme Court of New Hampshire.

Argued Feb. 3, 1954.

Decided April 21, 1954.

SYLLABUS BY THE COURT

Where by the terms of a sprinkler liability policy of insurance the furnishing of a proof of loss was a condition precedent to the maintenance of an action thereunder, the plaintiff's failure to comply with the provision precludes recovery unless excused therefrom by waiver or estoppel or other good reason.

Waiver of a condition precedent to recovery under a policy of insurance will not be found unless the insurer has full knowledge of all the material facts when the right is relinquished.

In an action under a sprinkler liability policy of insurance the insurer was not estopped from asserting its defense of the failure of the plaintiff to file proofs of loss as required by the policy where it had no knowledge prior to the trial that the damage might have resulted from any cause covered by the policy and never took any position upon which the plaintiff reasonably relied to its prejudice.

No question of law is presented to the Supreme Court by an issue never raised in the course of trial.

While the insured was not required to file a proof of loss until it was aware of the cause of the loss its failure to do so within a reasonable time after discovery was made precludes recovery by the terms of the policy in the absence of reasonable excuse.

Assumpsit brought by A. Perley Fitch Company, wholesale druggists, against the Continental Insurance Co. to recover for damage to the contents of the plaintiff's building occurring on the night of November 25, 1950 and allegedly caused by the freezing and bursting of a sprinkler pipe. Trial by jury resulting in a verdict for the defendant. The plaintiff introduced evidence tending to prove that a sprinkler pipe in the attic of its building froze, burst, and then thawed, discharging quantities of water which damaged its stock and fixtures. The defendant claimed that the loss occurred when a high wind tore off a portion of the roof of the building rupturing the sprinkler pipes and at the same time letting in rain water. The defendant contended that such a loss was not covered by the plaintiff's two 'Sprinkler Leakage' policies which contained provisions expressly excluding from coverage all loss caused 'directly or indirectly by * * * windstorm.'

The plaintiff admits that it never filed proofs of loss but argues that the defendant by disclaiming liability within a few hours after being notified to the disaster, by refusing to send proof of loss forms on request, and by inspecting the premises and assisting the plaintiff in taking inventory, even while expressly denying liability, waived this requirement or is estopped to assert it as a defense to this suit. The defendant concedes that it waived notice but claims it neither waived proof of loss nor is estopped to rely upon it since it was never claimed until after the trial commenced that the damage was caused by anything except windstorm. The Court over the exceptions of both parties submitted to the jury the issue of whether the defendant had waived proof of loss or was estopped to assert it as a defense. During the trial exceptions were taken to the admission and exclusion of evidence, to certain portions of the argument of counsel, to portions of the Court's charge and to its refusal to charge as requested. The defendant excepted to the denial of its motions for a nonsuit and directed verdict. The plaintiff moved that the verdict be set aside on the usual grounds and excepted to the denial of this motion. Other facts appear in the opinion. Transferred by Wheeler, C. J.

Devine & Millimet, Manchester, Morse, Hall & Morse, Concord, J. Murray Devine, Manchester, for plaintiff.

Sheehan, Phinney & Bass, Manchester, William S. Green, Concord, for defendant.

BLANDIN, Justice.

It is conceded by the defendant that it has waived the policies' requirements of notice of loss. However, the policies provide with reference to the conditions precedent as follows: 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, * * *.' It is undisputed that under our law unless the plaintiff's failure to comply with the requirement of proof of loss is excused on the ground of waiver, estoppel or for some other good reason, there must be a nonsuit. Bean v. Philadelphia Fire & Marine Insurance Co., 88 N.H. 416, 419, 190 A. 131; Kilgore v. Loyal Protective Ass'n, 78 N.H. 498, 501, 102 A. 344; Johnson v. Maryland Cas. Co., 73 N.H. 259, 60 A. 1009. The plaintiff contends that under R.L. c. 326 dealing with fire insurance policies as construed by our Court, Firemen's Insurance Co. v. Houle, 96 N.H. 30, 69 A.2d 696, 13 A.L.R.2d 612 and cases cited, the failure to file a proof of loss is no bar to this suit. It is unnecessary to decide whether the provisions of this chapter can be expanded to cover the sprinkler liability policies involved here without legislative direction because the plaintiff never raised this question before the trial court and it is too late to do so now. Baxter Woolen Co. v. Public Service Co., 98 N.H. 62, 63, 64, 94 A.2d 371.

In considering whether the defendant has waived its right or is estopped to defend on the ground that no proofs of loss were ever filed, it is important to remember that although cases have often failed to distinguish between waiver and estoppel, McCracken v. Car & General Insurance Corp., 94 N.H. 474, 55 A.2d 894, there is a substantial difference between them. Therrien v. Maryland Cas. Co., 97 N.H. 180, 84 A.2d 179;...