Rutherford, Inc. v. Rouse, 15512
| Decision Date | 10 September 1953 |
| Docket Number | No. 15512,15512 |
| Citation | 120 Cal.App.2d 129,260 P.2d 808 |
| Court | California Court of Appeals Court of Appeals |
| Parties | RUTHERFORD, Inc. v. ROUSE et al. |
Wallace, Garrison, Norton & Ray, San Francisco, for appellants.
Willard E. Bohn, Robert H. Kroninger, Oakland, for respondent.
From a judgment against them for $6,741.43 entered upon a jury verdict, defendants Rouse and Underwriters at Lloyd's appeal.
Questions Presented.
1. Did the evidence of insurance issued by defendants to plaintiff cover the Atkinson contract?
2. Was the cost of fighting fire an element of damage under the policy?
Facts.
In May, 1949, plaintiff had a contract with the Utah Construction Co. to do clearing over segments of a roadway which the latter had contracted with the U. S. Government to build through a national forest in Oregon. Under this contract, plaintiff was required to obtain a contract of indemnity insurance. An underlying contract of insurance limited to a $5,000 loss was obtained from the Hartford Fire Insurance Co. The excess over this amount was obtained from defendants Rouse and Underwriters for plaintiff by its insurance brokers, Johnson & Wright, dealing through defendant Philip Antrobus, Inc., who represented Rouse and the Underwriters. The policy in question indemnified plaintiff 'for any and all sums which the Assured shall by law become liable to pay, and shall pay, or by final judgment be adjudged to pay * * * as damages for:--Damage to Property * * * by reason of operations' described in the Hartford policy, and for loss 'in respect of Property Damage Liability only' on certain numbered contracts between plaintiff and the Utah Construction Co. 'and extensions of, or additions to, contracts at the same location between the same parties.' The term of the policy was from May 27, 1949, to May 27, 1950. Early in 1950 plaintiff completed its work for the Utah Construction Co. Plaintiff thereupon took a subcontract from Guy F. Atkinson Co., which held a master contract for the construction of a further segment of the highway. March 30, 1950, plaintiff's broker wrote Antrobus: March 31st, Antrobus replied: Enclosed was the following document:
'Certificate of Insurance.
'Portland, Oregon.
'This is to certify that we have placed with Lloyd's Underrwriters through our London correspondents the following described policy of insurance:
Name of Assured: Rutherford, Inc.
Policy No.:
Effective: 5/27/49 Expiring: 5/27/50
Coverage: Excess Property Damage Liability Insurance.
Limits: $245/225,000.00 excess of $5/25,000.00.
Subject to ten (10) days' Cancellation Clause.'
No additional premium was charged for the issuance of this certificate.
All of the negotiations concerning insurance had between plaintiff's brokers, Johnson & Wright, and Philip Antrobus, Inc., defendants' agent, were handled by Goodenough for the former and McDowell for the latter. Goodenough died prior to trial and hence the sole version of those negotiations obtainable was that of McDowell and Philip Antrobus. McDowell testified that based on his 18 years experience in the insurance world he did not consider plaintiff's March 30th letter as a request for an amendment of plaintiff's insurance policy, nor by issuing the 'Certificate of Insurance' addressed to Atkinson did he intend in any way to modify that policy. Both he and Philip Antrobus testified that the purpose of such a certificate was merely a routine method of informing Atkinson that plaintiff carried liability insurance. It merely certifies that the insured carries a certain numbered insurance policy and the recipient of a certificate such as Atkinson receives is supposed to go to the insured and obtain from the policy its full terms.
On April 12th plaintiff's brokers wrote Antrobus: Included in the excerpts from the contract was one requiring plaintiff to hold Atkinson and the government harmless from all damage from any fire caused by plaintiff. Another excerpt required plaintiff to furnish, at its own expense, contractor's comprehensive public liability insurance and furnish Atkinson evidence that it carried such insurance. Plaintiff assumed that the 'Certificate of Insurance' of March 31st covered the Atkinson contract and commenced work under that contract. The problem would be comparatively simple had a loss occurred prior to the expiration date shown on this certificate, May 27, 1950. However, the fire upon which plaintiff's action is based did not occur until June 2d.
Subsequent to the Antrobus letter of March 31st, telephone conversations were held between Goodenough on the one hand and Philip Antrobus and McDowell on the other. Due to Goodenough's death the only version of these conversations is that of the latter two. They claimed that Goodenough was informed that while they would issue evidence of the existing policy they could not extend it. They requested further information so that they could place new coverage for the Atkinson contract. While this was going on the fire occurred but they did not learn of it until June 27th. Goodenough then told them that the Atkinson contract had about three months to go, and had to have coverage, that plaintiff had a fire. 'It was not any claim under your policy * * *.' However, it made them conscious of the danger of another fire and Goodenough wanted Antrobus to place this coverage even if it cost $200. ...
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Lundin v. Hallmark Productions, Inc.
...of San Diego, 26 Cal.2d 842, 161 P.2d 553; Meyer v. State Board of Equalization, 42 Cal.2d 376, 267 P.2d 257; Rutherford, Inc. v. Rouse, 120 Cal.App.2d 129, 260 P.2d 808; In re Estate of Platt, 21 Cal.2d. 343, 131 P.2d However, it is also the rule that where no extrinsic evidence has been i......