Romanos v. Home Ins. Co.
| Decision Date | 21 March 1969 |
| Citation | 246 N.E.2d 173,355 Mass. 499 |
| Parties | George M. ROMANOS, Jr. v. The HOME INSURANCE COMPANY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Morris Michelson, Boston, for plaintiff.
Donald P. Wieners, Boston, for The Home Insurance Company.
Robert A. Romero, Jr., Boston, for Raymond Wilson Sturge.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.
The plaintiff brought an action in contract against the defendant The Home Insurance Company (Home) on a fire insurance policy issued by Home, and also against the Underwriters at Lloyd's of London (Lloyd's) on cover notes issued by it on the same property insured by Home. By stipulation, Raymond Wilson Sturge was substituted as defendant for Lloyd's. In its answer Home alleged that its policy had been cancelled before the date of the loss and that the plaintiff had failed to file with it a sworn statement of the particulars of the loss as required by the policy. Lloyd's denied liability, largely on the basis of clauses in its two cover notes reading:
'Warranted same terms and conditions as and to follow the settlements of Home Ins. Company and that said Company has at the time of any loss and at the same gross rate at least $5,000 (subject only to reduction by amount of any loss not reinstated) on the identical subject matter and risk and in identically the same proportion on each separate part thereof.
'This Policy is subject without notice to the same conditions, endorsements, assignments and alterations of rates as are or may be assumed in the above-mentioned Company's Insurance upon which this Policy is based.'
The trial judge made exhaustive and careful findings of fact. From these it appears that the plaintiff bought from one Dubin buildings located at the corner of Tremont and Camden streets in Boston, on which Dubin had obtained the policies of fire insurance which underlie this action. After a lengthy review of evidence bearing on the question, which it is unnecessary to detail here, the trial judge found that the Home policy had not been cancelled, 1 but found also that, in view of some question on that point, the plaintiff had secured an additional and third cover note from Lloyd's. The insured premises were severely damaged by a fire occurring on November 30, 1958. It was not, however, until January 29, 1959, that the plaintiff forwarded to Home a sworn and written proof of loss. Prior to this date Lloyd's had appointed one Dalton as an adjuster on its liability but Home appointed no one. Payment was made to the plaintiff on the third Lloyd's policy which did not contain the warranty clause. On March 31, 1959, Home rejected the plaintiff's claim on the basis that he had not filed his statement in writing 'forthwith' as required by the policy. Conformable to that contention the judge ruled that he had failed to comply with his contract and fond for Home on each of the three counts of the plaintiff's declaration. 2
1. The plaintiff first argues that the evidence warranted a finding against Home on the basis that Home's defence of lateness of proof of claim had been waived. The policy which Home issued was a standard form fire insurance policy written in accordance with G.L. c. 175, § 99, requiring the rendering 'forthwith' of a statement in writing containing specific information on the loss asserted. Compliance with the requirement was a condition precedent to recovery on the policy. Nichols v. Continental Ins. Co., 265 Mass. 509, 511, 164 N.E. 442. The burden of pleading and proving either satisfaction of policy obligations or waiver of them by the insurer is on the plaintiff. Hannuniemi v. Carruth, 278 Mass. 230, 232, 179 N.E. 597. 'Waiver is the intentional relinquishment of a known right.' Niagara Fire Ins. Co. v. Lowell Trucking Corp., 316 Mass. 652, 657, 56 N.E.2d 28, 31 and cases cited. The trial judge found that Home never waived the policy requirement of a written sworn statement. We see nothing in the record to support the plaintiff's contention that it did.
Nor can the plaintiff rely in the circumstances of this case on G.L. c. 175, § 102. 3 He seeks relief from his obligation to file his statement 'forthwith' on the ground that an agent for Home appointed an adjuster shortly after the fire. The judge, however, found that Home never appointed such an adjuster and that, therefore, no waiver under the statute was established. We conclude that there was no error in the ruling by the judge, based on his findings, that the plaintiff had failed to comply with the policy provision requiring a signed and sworn proof of loss to be rendered 'forthwith.' And in view of his findings, notwithstanding the plaintiff's argument, based on certain requests not given, it is our opinion that this matter is not in any sense to be governed by Bresnick v. Heath, 292 Mass. 293, 298--299, 198 N.E 175. Since, as the judge ruled, the plaintiff was not relieved of the obligation to submit his proof of loss 'forthwith,' we are further of opinion that a statement following a sixty day delay is in this situation not in compliance with the policy requirement. The statement should have been sent as soon as 'the...
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CHAPTER 7
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