Runner v. Calvert Fire Ins. Co., 10527
| Citation | 76 S.E.2d 244,138 W.Va. 369 |
| Decision Date | 09 June 1953 |
| Docket Number | No. 10527,10527 |
| Court | West Virginia Supreme Court |
| Parties | , 44 A.L.R.2d 1075 RUNNER, v. CALVERT FIRE INS. CO. |
Syllabus by the Court
1. Where, under the facts and circumstances of a particular case, the court cannot, as a matter of law, hold that the specific provisions of an insurance contract have been breached, the question is one for jury determination.
2. A provision for subrogation, contained in an insurance contract, is not violated where the insured has, with full knowledge and acquiescence of the insurer, compromised his claim against the wrongdoer and executed a release thereof.
3. The knowledge of an agent of the insurer, apparently clothed with full authority to adjust a loss with insured, is imputed to the insurer whether communicated or not, and the insurer will be estopped to deny representations and agreements made by such agent with insured within the scope of his apparent authority.
Robert E. Maxwell, Elkins, for plaintiff in error.
Bonn Brown, Elkins, for defendant in error.
The automobile of the plaintiff, while being driven over a road then under construction, struck a rock protruding from such road, damaging the oil pan and causing a complete loss of oil. The automobile was driven approximately six miles beyond the point of impact at which time a 'knock' developed and the car was stopped. Upon examination, the motor was found to be burned out, as a result of running without oil, necessitating its replacement at a cost of $353.99.
Plaintiff notified the defendant, the insurer of the automobile, of the loss and was consulted by Mr. Davis, an adjuster, on behalf of the defendant. Mr. Brown, attorney for the plaintiff, testified that he conversed with Mr. Davis and informed him that suit would be instituted by plaintiff against Sam G. Polino, the contractor engaged in the road construction, but that the Calvert Fire Insurance Company, the defendant herein, would be held for the difference between any recovery against Polino and the amount of damages, $353.99. This was agreeable to Mr. Davis, whereupon suit was instituted in a justice's court, and judgment obtained for $300 against Polino. Pending an appeal by Polino, a compromise figure of $175 was reached, Mr. Davis was consulted, agreed to such settlement, and also agreed with Mr. Brown that the Insurance Company would pay the difference between $175 and the total amount of damages. On this basis, the suit was settled and the plaintiff executed a complete release to Polino of all liability, 'specifically excepting' from such release the defendant Insurance Company. After the execution of such release, this action was begun against the insurer to recover under the provisions of the policy. The facts, as heretofore stated, are not contradicted by the insurer, the insurer relying upon an alleged breach of the policy provisions to avoid liability. The provisions of the policy allegedly breached by plaintiff are:
'Coverage B-1--Collision or Upset
'Direct and accidental loss or of damage to the automobile caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable thereto.
'When loss occurs, the insured shall: (a) protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the insured's failure to protect shall not be recoverable under this policy; reasonable expense incurred in affording such protection shall be deemed incurred at the company's request;
'Subrogation
Upon trial of the case, the jury returned a verdict for the plaintiff in the amount of $128.99, a motion to set aside such verdict was overruled and judgment entered thereon, to which this Court granted a writ of error on November 17, 1952.
The principal assignments of error deal with the refusal of the court to hold as a matter of law that the plaintiff is precluded from recovery because of the alleged breaches of the policy provisions, or any one of them, and also, the refusal of the court to give five instructions offered by the defendant which interpreted the policy provisions in accordance with defendant's theory that they, or any one of them, had been breached.
The wife of the plaintiff, who was operating his automobile at the time of the occurrence of the events which have brought about this litigation, testified that as the automobile passed over the protruding rock she heard a sound 'not very loud' and at the same time felt the impact. The insurer maintains that under the terms of the policy providing for 'direct and accidental loss to the automobile' it was only liable for damage that occurred to the oil pan from the protruding rock, and not damage suffered by the automobile as the result of loss of oil from the crankcase.
It is true, as contended by the insurer, that this Court held in Davis v. Combined Insurance Company of America, W.Va., 70 S.E.2d 814, 816, that: 'The principle that a contract of insurance should be construed liberally in favor of the insured and strictly against the insurer does not apply when the language of such contract is unequivocal and unambiguous and clearly expresses the intention of the parties to such contract.' In so stating, the Court was relating an exception to the general rule which is well established in this jurisdiction and elsewhere. We do not believe the language of the contract between the insurer and the insured in this case is so unequivocal and unambiguous that we can say as a matter of law that...
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