Townsend v. Milwaukee Ins. Co.
| Decision Date | 06 February 1962 |
| Parties | Edward TOWNSEND, Appellant, v. MILWAUKEE INSURANCE CO., a Wis. corporation, Respondent. |
| Court | Wisconsin Supreme Court |
An action commenced by Edward Townsend on February 17, 1960, to recover on two losses under a three-year policy of fire insurance for $5,000 issued by Milwaukee Insurance Company to plaintiff on June 22, 1956.
Milwaukee Insurance Company in its answer alleged that the policy of fire insurance issued by it to Townsend was the standard form as provided for in sec. 203.01, Stats., and sets forth that notice of the fire was not given to it within a reasonable time as provided by the statutes, and further that suit was not commenced within twelve months after the inception of the loss. The answer further sets forth that the plaintiff had not commenced suit until some twenty months after the inception of loss.
The defendant then moved for summary judgment, and in support of this motion filed an affidavit stating facts relevant to the late commencement of plaintiff's action.
Townsend, by one of his attorneys, filed a counteraffidavit in opposition to the motion for summary judgment. The counteraffidavit, made on information and belief, states that plaintiff was unaware of the existence of the fire insurance policy No. 13329 until July, 1959, when Townsend received a bill for renewal premium.
The court granted the motion for summary judgment and dismissed the plaintiff's complaint. Plaintiff appeals from that judgment.
Eisenberg & Kletzke, Milwaukee, Edwin A. Star, Milwaukee, of counsel, for appellant.
Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Reginald W. Nelson, Milwaukee, of counsel, for respondent.
The defendant Milwaukee Insurance Company issued to Townsend on June 22, 1956, a standard form fire insurance policy pursuant to sec. 203.01, Stats. 1
The record reveals the fires for which plaintiff seeks recovery occurred June 10, 1958 and June 27, 1958; that proofs of loss as to each alleged fire, dated August 25, 1959, were submitted by Townsend to Milwaukee Insurance Company, which acknowledged receipt thereof on September 28, 1959. The Milwaukee Insurance Company disclaimed liability and accordingly rejected the proofs of loss and returned them to plaintiff on the ground that notice of the respective fires was not given within a reasonable time and that the proofs of loss did not constitute a proof of loss within the terms of its policy, and sets up as a separate defense to the action that the provisions of sec. 203.01, lines 157 to 161 inclusive, Stats., precludes the commencement of a suit on the policy unless commenced within twelve months after inception of the loss, and that the plaintiff in the instant case did not commence his suit until some twenty months after the inception of the losses.
The affidavit of the defendant, in support of its motion for summary judgment, was made by a branch manager of the Milwaukee Insurance Company, and sets forth all of the material allegations of the complaint relating to the issuance of the policy and all of the allegations of its answer, and in further support of its motion sets forth that the action was not commenced within twelve months next after inception of the fire loss as provided for in sec. 203.01, Stats.
The counteraffidavit was made and submitted by one of plaintiff's attorneys and was based entirely on information and belief. The affidavit sets forth the same identical facts that were contained in the complaint. The affidavit sets forth that on August 12, 1959, the affiant wrote a letter to Milwaukee Insurance Company in which he related that he had been in...
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