Ramsey v. Home Ins. Co.
| Decision Date | 23 April 1962 |
| Docket Number | No. 5346,5346 |
| Citation | 95 A.L.R.2d 1019,203 Va. 502,125 S.E.2d 201 |
| Court | Virginia Supreme Court |
| Parties | , 95 A.L.R.2d 1019 HARRY LUCAS RAMSEY v. THE HOME INSURANCE COMPANY. Record |
Henry Breckinridge Vance (Robert C. Smith, on brief), for the plaintiff in error.
Edward A. Marks, Jr. (Sands, Anderson, Marks & Clarke, on brief), for the defendant in error.
The plaintiff, Harry Lucas Ramsey, instituted this action on March 20, 1958, to recover under a fire insurance policy issued to him by the defendant, The Home Insurance Company, for the loss sustained when the property insured was destroyed by a fire which occurred on February 13, 1957. The trial court sustained the defendant's special plea that the action was not commenced within twelve months next after the inception of the loss, as required in the policy and by statute, and entered summary judgment for the defendant. Rule 3:20 of Rules of Court. The correctness of this ruling is the question presented on this appeal.
The policy, which was dated January 5, 1957, was the standard form containing the provisions required by §§ 38.1-365 and 38.1-366, part of Title 38.1 of the Code, comprising the statute law on the subject of Insurance. It was enacted by the General Assembly as chapter 317 of Acts, 1952, following a study and report by the Virginia Advisory Legislative Council as directed by the General Assembly of 1946. 39 Va. Law Rev. 547.
Section 38.1-363 provides that no policy of fire insurance on property in this State shall be issued or delivered unless it conforms to the requirements of Title 38.1.
Section 38.1-365 prescribes the wording of the insuring agreement, while § 38.1-366 states the provisions which every fire insurance policy shall contain. These provisions are set out in lines numbered from 1 to 165, and the section concludes with the warning that no change shall be made in the sequence of words and paragraphs or in the arrangement of the words into lines, or in the catch words at the beginning of the paragraphs. Section 38.1-379 provides that any violation of any provision of this article shall be punished by a fine and possibly by suspension or revocation of license.
Section 38.1-366 requires that the insured give immediate notice to the insurer of any loss, and within sixty days after loss, unless extended in writing by the insurer, submit a proof of loss. If the parties fail to agree on the amount of the loss, appraisers shall make an award; and the amount of the loss for which the insurer is liable shall be payable sixty days after proof of loss is received and ascertainment of the loss is made either by agreement of the parties or the filing of an award. The limitation on bringing suit is in these words:
'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, and unless commenced within twelve months next after inception of the loss.'
This action was not commenced within twelve months next after the inception of the loss. As stated, the fire occurred February 13, 1957, and the action was not instituted until March 20, 1958, twelve months and thirty-five days after the inception of the loss. However, the plaintiff contends that the limitation of twelve months provided by the statute and in the policy did not begin to run until sixty days after the proof of loss was received by the insurer, because the paragraph immediately preceding the limitation provision provides that the amount due by the company is not payable until the sixty days have expired. He cites § 38.1-341 in support of his contention. It is in these words:
'No provision in any policy of insurance limiting the time within which a suit or action may be brought to less than one year after the loss occurs or the cause of action accrues shall be valid.
'Where the policy of insurance requires the proof of loss, damage or liability to be filed within a specified time, all time consumed in an effort to adjust the claim shall not be considered as a part of such time.'
This section is in Article 1 of chapter 8 of Title 38.1, which is headed 'General Provisions'. The first section in that Article is 38.1-328, which says in part that the 'provisions of this chapter shall apply to all kinds or classes of insurance' except annuities and ocean marine. The kinds and classes of insurance dealt with in chapter 8 are accident and sickness, fire, liability, life, industrial life and group. Provisions with respect to the time limitations on suits differ among the different classes. No policy of life insurance, with certain exceptions (§ 38.1-406), or industrial life insurance (§ 38.1-422) may limit suit time to less than one year 'after the cause of action accrues '. Section 38.1-349 permits a limitation on accident and sickness policies of three years after proof of loss is furnished. No specific limitations are prescribed in the Articles dealing with liability insurance and group insurance.
It seems reasonably clear that the function of § 38.1-341 is to provide a limitation upon the minimum time for bringing suit on policies as to which limitations are not specifically provided, and in such cases the policy may limit the time to not less than one year after the loss or after the cause of action accrues, as the policy may provide.
But the language of § 38.1-366 is plain and specific in its requirement as to fire insurance policies, and the policy sued on in the present case was written in compliance with the requirement, which is that the suit thereon shall not be sustainable 'unless commenced within twelve months next after inception of the loss'.
It is true that a number of courts have held that under such a provision in a policy in which the insurer is given a certain time in which to pay the loss, in this case sixty days after the proof of...
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