Riteway Builders, Inc. v. First Nat. Ins. Co. of America

• Decision Date: 04 February 1964
• Citation: 22 Wis.2d 418,126 N.W.2d 24
• Parties: RITEWAY BUILDERS, INC., Plaintiff-Appellant, v. FIRST NATIONAL INSURANCE COMPANY OF AMERICA, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 24

126 N.W.2d 24

22 Wis.2d 418

RITEWAY BUILDERS, INC., Plaintiff-Appellant, v. FIRST NATIONAL INSURANCE COMPANY OF AMERICA, Defendant-Respondent.

Supreme Court of Wisconsin.

Feb. 4, 1964.

Camp & Camp, Wauwatosa, Richard F. Tyson, Wauwatosa, of counsel, for appellant.

Arnold, Murray & O'Neill, Milwaukee, George R. Schimmel, Milwaukee, of counsel, for respondent.

HALLOWS, Justice.

We do not know whether the endorsement was attached at the time of issuance of the policy or was attached subsequently. However, this is immaterial because at the time of the collapse what constituted the policy included coverage against the peril of collapse. Endorsements insuring against perils added to the standard form of policy, either at the time of execution or later, are or become a part of the policy and do not constitute separate and distinct policies.

The standard policy is set forth in sec. 203.01, Stats., and its use for insuring against fire and lightning is mandatory by sec. 203.06 excepting by town mutuals. Enlargement of coverage to include additional perils which an insurer is authorized to assume is contemplated by the standard policy form and expressly permitted by sec. 203.06. (It had been customary when the perils of windstorm or hail have been insured against separately from fire to use the standard form with appropriate endorsements.) The standard form of fire policy has become the basic part of modern multiple risks and so-called 'home owner's policies' at least since insurance companies have been authorized to write multiple risks by secs. 201.04 and 201.05.

The standard policy by lines 157 to 161 provides, '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.' The plaintiff seeks to limit the operation of this language to the perils of fire and lightning appearing in the insuring clause of the standard form and not to apply to an endorsement increasing coverage. The term 'fire insurance' so far as classifying insurance companies and their purposes and authority to do business is set forth in sec. 201.04(1) as being 'Against loss or damage to property, by fire, lightning, hail, tempest, explosion, and against any other loss or damage from any cause to property or in the use of, or income from property.' While the insuring clause of the mandatory form refers only to fire and lightning, the standard form by lines 38 to 41 provides, 'Any other peril to be insured against or subject of insurance to be covered in this policy shall be by endorsement in writing hereon or added hereto.'

In considering the suit clause, we find no justification for construing the phrase 'No suit or action on this policy for the recovery of any claim' means only a fire and lightning claim or the language 'within twelve months next after inception of the loss' means loss only from fire or lightning. The cases relied on by the plaintiff from other jurisdictions are not in point. They involved language in policies taken from the old New York standard fire form which provided suit had to be brought 'within 12 months next after the fire.' Prior to 1945 in Wisconsin, our standard policy contained such a phrase restricted to fire.

Prior to the adoption of a standard form of fire policy in the United States, fire policies often contained a 12-months limitation within which suit could be brought 'after the loss.' This phrase had been variously interpreted...