Upington v. Commonwealth Ins. Co. of New York

• Decision Date: 29 September 1944
• Citation: 182 S.W.2d 648,298 Ky. 210
• Parties: UPINGTON v. COMMONWEALTH INS. CO. OF NEW YORK. SAME v. AMERICAN ALLIANCE INS. CO. OF NEW YORK. SAME v. NEW HAMPSHIRE FIRE INS. CO. OF MANCHESTER. SAME v. HARDWARE MUT. INS. CO. OF MINNESOTA.
• Court: Kentucky Court of Appeals

182 S.W.2d 648

298 Ky. 210

UPINGTON v. COMMONWEALTH INS. CO. OF NEW YORK.

SAME v. AMERICAN ALLIANCE INS. CO. OF NEW YORK.

SAME v. NEW HAMPSHIRE FIRE INS. CO. OF MANCHESTER.

SAME v. HARDWARE MUT. INS. CO. OF MINNESOTA.

Court of Appeals of Kentucky

September 29, 1944

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

Actions by Fred W. Upington against the Commonwealth Insurance Company of New York, American Alliance Insurance Co. of New York, New Hampshire Fire Insurance Co. of Manchester, and Hardware Mutual Insurance Co. of Minnesota, to recover on policies of fire insurance and for damage resulting from delay in adjusting the loss. From judgments in favor of plaintiff for lesser amounts than were demanded by him plaintiff appeals and the appeals are heard together.

Judgments affirmed.

Keenon & Odear, of Lexington, for appellant.

Wm Marshall Bullitt and Leo T. Wolford, both of Louisville, and W. A. Minihan, of Lexington, for appellees Hardware Mut. Ins Co. and New Hampshire Fire Ins. Co.

T. M. Galphin, Jr., of Louisville, and W. A. Minihan, of Lexington, for appellees Commonwealth Ins. Co. and American Alliance Ins. Co.

SIMS Justice.

These four cases were brought at law by Fred W. Upington, who was engaged in Lexington in the business of reconditioning automobiles and other vehicles, to recover damages done his three-story building, as well as damages to his stock and equipment, by a fire occurring about 10 o'clock on the night of May 18, 1941. The Hardware Mutual Insurance Company and the New Hampshire Fire Insurance Company carried policies aggregating $10,000 on the building, while the Commonwealth Insurance Company and the American Alliance Insurance Company carried policies on the stock and equipment in the aggregate sum of $2,500. These four appeals have been heard together and all of them will be disposed of in this opinion.

Plaintiff alleged damages to his building of $4671.38, and damages to his stock and equipment of more than $2,500, the full amount of insurance carried on the latter; that there was delay in adjusting the loss and the insurance companies agreed to pay any damages caused by the delay, which amounted to $1750 and were caused by rain coming through the fire-damaged roof.

The first paragraphs of the answers denied the damages to the building were in excess of $1472.68, or that the damages to the personal property exceeded $1035.05; and further denied defendants' agents agreed to pay plaintiff for any damages incurred by reason of delay in arriving at a settlement. In subsequent paragraphs it was pleaded that the parties arbitrated the losses as provided in the policies and an award was made plaintiff of $2013.12 for the damages done his building and another award was made him of $1035.05 for the damages to the stock and equipment. The respective insurance companies offered to confess judgment for their proportionate parts of such sums for which they were liable. The two companies carrying policies on the building further pleaded that their policies only insured against fire and none of their agents had authority to agree to protect plaintiff against loss caused by delay in arriving at settlements and that it was plaintiff's duty to protect his damaged building from the elements.

Replies were filed on November 29, 1941, controverting the answers and then pleading affirmatively that by fraud or mistake the appraisers failed to consider certain damaged items set out in the pleadings and that plaintiff became dissatisfied and withdrew from the arbitration before the awards were signed, and he prayed that they be set aside. Rejoinders traversed the replies. Motions to transfer the causes to the equity docket were filed on February 23rd, and over plaintiff's objections were sustained on February 28, 1942. Plaintiff complains of this ruling on the ground that the motions came after answers were filed and were too late under § 10, subsec. 2, of the Civil Code of Practice. As the replies asked that the awards be set aside, an equitable issue was formed and under § 11, subsec. 2, of the Code the cases were properly transferred to the equity docket. Queen Ins. Co. v. Marks, 204 Ky. 662, 265 S.W. 30.

On October 31, 1942, plaintiff tendered amended replies in which he averred that Don Campbell, the appraiser named by the companies carrying the insurance on the building, and J. B. Shelnutt, named as appraiser by the companies carrying insurance on the personal property, were not disinterested appraisers as represented by defendants, but were regularly employed by insurance companies in such roles and were engaged in purchasing fire-damaged stocks from insurance companies, all of which was unknown to plaintiff, and by reason of the companies selecting Campbell and Shelnutt the awards were null and void. It is insisted that as the insurance companies did not rejoin to these amended replies, the averments contained in them should be taken as true. But the amendment effective on June 1, 1942, Acts 1942, c. 200, to § 98 of the Civil Code of Practice makes rejoinders unnecessary even if the replies be treated as filed and not merely tendered.

After considerable proof was taken the chancellor refused to set aside the awards and gave judgments for the plaintiff for the amount of each award, except he reduced the award on the personal property by $240, the value of certain antique furniture which he held was not covered by the policies. In asking a reversal of the judgments plaintiff insists: 1. That the arbitrators selected by the insurance companies were interested and therefore disqualified. 2. That by fraud or mistake the appraisers failed to consider all of the damages to the property. 3. That the chancellor erred in refusing to allow damages done the antique furniture and should have upheld the personal property award or set it aside in toto.

There is no evidence in the record that Campbell or Shelnutt, the two appraisers named by the insurance companies, were interested in behalf of the companies naming them or that they acted...