Six L's Packing Co., Inc. v. Florida Farm Bureau Mut. Ins. Co.

• Decision Date: 12 September 1972
• Docket Number: No. 71--905,71--905
• Parties: SIX L'S PACKING COMPANY, Inc., a Florida corporation, Appellant, v. FLORIDA FARM BUREAU MUTUAL INSURANCE CO., etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 560

268 So.2d 560

SIX L'S PACKING COMPANY, Inc., a Florida corporation, Appellant, v. FLORIDA FARM BUREAU MUTUAL INSURANCE CO., etc., et al., Appellees.

No. 71--905.

District Court of Appeal of Florida, Fourth District.

Sept. 12, 1972.

Rehearing Denied Nov. 29, 1972.

Jack F. Weins of Abrams, Anton, Robbins & Resnick, Hollywood, for appellant.

Thomas B. Mimms, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellees.

MAGER, Judge.

This is an appeal by Six L's Packing Company, Inc., plaintiff below, from a summary final judgment entered in favor of Florida Farm Bureau Mutual Insurance Co. and Jack Whisnant, defendants below.

The controversy between the parties centers around the interpretation and application of provisions of a fire insurance policy issued by defendant and covering the contents of a tomato packing shed owned by plaintiff. The type of policy involved in this case is commonly referred to as a 'value reporting form policy'. Under such policy the insured makes monthly reports to the insurance company from which reports there is ascertained: (1) the value of the property to be covered under the policy; and (2) the premium ultimately to be paid. ¹

The fire insurance policy was first issued on November 1, 1961, was renewed each subsequent year and was in force and effect at the time of plaintiff's loss. The particular policy year involved in this case ran from October 31, 1966 to October 31, 1967. On October 18, 1967, plaintiff's packing shed was totally destroyed by fire, the contents of such shed having a claimed value of $31,200.00. At the Time of the loss, the last report On file with the insurance company was for the month of June 1967, at which time the report reflected the contents of the shed to be 'none'. The monthly reports for the months of July, August and September (which would have shown the claimed value at the time of the loss) were filed on October 28, 1967, some ten days After the loss in question.

The plaintiff made demand upon the defendant based upon the values reflected in the report filed on October 28, 1967. The defendant denied liability claiming that the plaintiff had failed to comply with the provisions of Clauses 11 and 12 of the policy.

The pertinent provisions of the value reporting form policy are hereinafter set forth:

'11. VALUE REPORTING CLAUSE--It is a condition of this policy that the Insured shall report in writing to this Company Not later than 30 days after the last day of each calendar month, the exact location of all property covered hereunder, the total actual cash value of such property at each location and all specific insurance in force at each of such locations on the last day of each calendar month. At the time of any loss, if the Insured has failed to file with this Company reports of values as above required, this policy, subject otherwise to all its terms and conditions, Shall cover only at the locations and for not more than The amounts included in the last report of values less the amount of specific insurance reported, if any, Filed prior to the loss, the further, if such delinquent report is the first report of values herein required to be filed, this policy shall cover only at the respective locations specifically named herein and for not exceeding 75% Of the applicable limit of liability of this Company specified in the Limit of Liability Clause. If the inception date of this policy is the last day of the calendar month, then the first report of values due shall show the total actual cash value(s) as of that date.

'12. FULL REPORTING CLAUSE--Liability under this policy shall not in any case exceed that proportion of loss (meaning the loss as provided in the Excess Clause at the location involved), Which the last reported value filed prior to the loss, less the amount of specific insurance reported, if any, at the location where any loss occurs bears to the total actual cash value less the amount of specific insurance, if any, at that location on the date for which report is made. Liability for loss hereunder, occurring at any location acquired since filing the last report (except as provided by the Value Reporting Clause) shall be apportioned in a like manner except that the proportion used shall be the relation that values reported at all locations less the amount of reported specific insurance, if, any, bear to the total actual cash values less the amount of specific insurance, if any, at all locations on the date for which report is made.' (Emphasis added.)

The undisputed evidence in the record refledcts that during the six-year period immediately prior to the policy period in question while the plaintiff was insured by the defendant, the plaintiff was consistently late in the filing of its reports which late reports the defendant apparently accepted. The only reports which appear to have been rejected during the entire policy period were the reports which plaintiff attempted to file After the fire loss of October 18, 1967.

Plaintiff in essence asserts two positions: (1) that the insurance company's acceptance of delinquent reports during the period Preceding the fire constituted a waiver by the insurance company of the requirement for the timely filing of monthly reports; stated differently, whether or not the insurance company waived the timely filing of such reports and was estopped to assert noncompliance was a question of fact which precluded the entry of summary judgment. And (2) that the filing of the report on October 28, 1967, was timely since it was within the grace period prescribed by Clause 11, supra.

With respect to the question of waiver (and estoppel) it shall be observed that the policy in question contains a standard 'nonwaiver' clause as follows:

'No permission affecting this insurance shall exist, or waiver of any provision be valid, unless granted herein or expressed in writing added hereto. No provision, stipulation of forfeiture shall be held to be waived by any requirement or proceeding on the part of this Company relating to appraisal or to any examination provided for herein.'

In addition, the record in the case sub judice reflects that in submitting each monthly report to the insurance company the plaintiff specifically executed the following:

'I/We hereby agree that the Company's acceptance of a delinquent report shall not be prejudicial to the Company's rights under the Value Reporting Clause of the policy and shall not be deemed a waiver of the reporting requirements of such clause.'

While, at first blush, this would appear to negate plaintiff's contention that defendant's Acceptance of delinquent reports constituted a waiver and estoppel, it would not necessarily justify the making of such a determination in a summary proceeding inasmuch as the question of waiver and estoppel inherently involve material fact questions. Ham v. Heintzelman's Ford, Inc., Fla.App.1971, 256 So.2d 264. It does not follow, however, that the judgment should be reversed and remanded for a hearing on this question for it is our view of the law that the doctrine of waiver and estoppel is Not applicable, as a matter of law, the case sub judice.

The general rule is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is Not applicable to matters of Coverage as distinguished from grounds for Forfeiture. 18 Fla.Jur. Insurance § 677, and 43 Am.Jur.2d Insurance § 1184. State Liquor Stores, #1 v. United States Fire Ins. Co., Fla.App.1971, 243 So.2d 228; Johnson v. Dawson, Fla.App.1972, 257 So.2d 282. See also Alaska Foods, Inc. v. American Mfr's Mut. Ins. Co., Alaska 1971, 482 P.2d 842; Commonwealth Ins. Co. of New York v. O. Henry Tent & Awn. Co., 7 Cir.1961, 287 F.2d 316. In other words, while an insurer may be estopped by its conduct from seeking a Forfeiture of a policy, the insurer's Coverage or restrictions on the Coverage cannot be extended by the doctrine of waiver and estoppel.

We are therefore faced with the threshold determination of whether the pertinent clauses go to the Coverage of the policy as distinguished from furnishing a ground for Forfeiture.

As will be observed from the language in Clause 11, if the insured failed to file reports of values with the company the policy 'shall cover only at the locations and for Not more than the amounts included in the last report of values less the amount of specific insurance reported, if any, Filed prior to the loss . . .'. Further, under Clause 12 it is provided that 'Liability under this policy shall not in any case exceed that proportion of loss . . . which the last reported value Filed prior to the loss, less the amount of specific insurance reported, if any, at the location where any loss occurs bears to the total actual cash value less the amount of specific insurance, if any, at that location on the date for which report is made.'

Provisions of this type have been held to create conditions going to Coverage and Not conditions or grounds of Forfeiture. Commonwealth Ins. Co. of New York v. O. Henry Tent & Awn. Co., supra; Alaska Foods, Inc. v. American Mfr's Mut. Ins. Co., supra; Peters v. Great American Ins. Co., 4 Cir.1949, 177 F.2d 773; see also 1 A.L.R.3d 1139--1172. By way of an example of this distinction, if an insured is delinquent in his monthly reporting of values the insurer cannot declare the policy forfeited but can, as a result, have its liability (coverage) limited to the last report filed prior to any loss. If an insured suffers a loss at the time When his reports are delinquent the insurer cannot disclaim liability and consider the policy forfeited...