Weil v. Pennsylvania Fire Ins. Co.

Decision Date23 November 1959
Docket NumberNo. A--724,A--724
PartiesEdgar WEIL, Plaintiff-Respondent, v. PENNSYLVANIA FIRE INSURANCE COMPANY, a corporation, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Samuel A. Gennet, Newark, for defendant-appellant.

No appearance for plaintiff-respondent.

Before Judges PRICE, GAULKIN and FOLEY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Plaintiff sued upon an insurance policy for the loss of his personal property, allegedly stolen from the locked trunk of his automobile. The district court judge, sitting without a jury, entered judgment in favor of the plaintiff and defendant appeals.

The evidence showed that plaintiff, a resident of Elizabeth, was in Baltimore on business on January 29, 1958. About 5 p.m. of that day he left his car in a parking garage. When he called for it on January 30 the keys were still in the garage office but the car was gone. After notifying the Baltimore police and calling his wife to report the theft to the agent who wrote the policy, he returned to Elizabeth by train, taking the keys with him.

On or about February 3 the car was found, damaged and abandoned, in Baltimore. Plaintiff claimed that his personal belongings had been taken from the trunk, and when his claim was not honored he instituted this action.

Appellant's first point is that the trial court should have entered judgment in its favor because 'plaintiff's failure to file a proof of loss within 60 days after the occurrence bars the claim.' For this proposition appellant relies on Brindley v. Firemen's Ins. Co., 35 N.J.Super. 1, 8, 113 A.2d 53 (App.Div.1955).

To begin with, the policy is ambiguous. The form, captioned 'Homeowners Policy,' apparently was prepared, filed and approved pursuant to N.J.S.A. 17:36--5.21 and 5.22. Section 5.21 provides that '(e)very * * * policy of fire insurance may * * * include any other insurances which the insurer is authorized to make. * * *' Section 5.22 permits the insurance companies or its rating organizations to file '(a)ppropriate forms of contracts, or supplemental contracts, or extended coverage endorsements that will provide insurance in case of loss, damage or liability occasioned by any accident, incident, occurrence, or peril other than fire and lightning * * * for use with or as a part of such fire insurance policy * * *.'

The policy now before us has been put together by fastening ten assorted sheets to an eleventh which contains nothing but the 165 lines which N.J.S.A. 17:36--5.20 directs must appear in every fire insurance policy. The result is a collage which represents the triumph of mucilage over mind. Not only are the 11 sheets of varying sizes, but they are arranged in a bewildering fashion. For example, pages 2, 3, 4 and 5 are attached in reverse order. After some difficulty, we discovered that to make sense they must be read 5, 4, 3, 2. The remaining sheets are inserted without any apparent rhyme or reason. Page 1 of the policy contains the following:

                --------------------------------------------------------------------
                                             Coverages
                --------------------------------------------------------------------
                     A. Dwelling                           Subject to MPT 265(1/56)
                ***  B. Appurtenant Private Structures     Form No. MPB 280(4/56)
                     C. Personal Property on the Premises
                     D. Personal Property Away From the    and following Endorsement
                            Premises                       No.  (s) attached hereto
                     E. Additional Living Expense
                -----------------------------------------
                     F. Comprehensive Personal Liability         MP 207a(3/56)
                      (Bodily Injury and Property Damage)
                -----------------------------------------
                     G. Medical Payments
                --------------------------------------------------------------------
                

But this is followed by the statement, which appears in every fire insurance policy, that the insurance is only 'against all direct loss by fire, lightning and by removal from premises endangered by the perils insured against in this policy, except as hereinafter provided * * *,' while on at least one later page insurance is provided which is not included in any of the coverages on page 1. If the argument be made that the reference to the form numbers, quoted above, is intended to convey some meaning to the insured, the answer is that there are more forms attached than those listed.

At the top of page 5 there is discovered the following, in small print 'This entire contract is made subject to all the provisions and stipulations of the policy to which this form is attached, except as hereinafter modified.'

This leaves it quite unclear as to how losses other than by fire are to be affected by those 'provisions and stipulations.' However, tucked away in equally small print at the bottom of page 5 this appears:

'Section 1 of this policy insures against all direct loss by the perils as defined hereunder. In the application of the provisions of the policy to which this form is attached, wherever the word 'fire' appears, there shall be substituted the peril involved or the loss caused thereby, as the case requires.'

In Brindley, supra, this court held that R.S. 17:36--6, N.J.S.A., was limited not only to the fire insurance policy but, even more narrowly, to losses by fire, and therefore failure to file proof of loss within the 60 days stated in lines 90--113 of the standard fire policy was fatal to a windstorm claim even though windstorm was covered (under a 'supplemental coverage' endorsement) by the fire policy. An inspection of the briefs in Brindley shows that this construction of R.S. 17:36--6, N.J.S.A., advanced by the insurance company, was not disputed by the insured.

In a proper case it may become necessary to re-examine the holding in Brindley, supra. We shall not do so in this case, for it has not been briefed nor argued, and it is not essential to the disposition of this case, since we find that, even if the holding in Brindley is correct, the appellant here is estopped from raising the defense of late filing for the reasons hereafter set forth.

It would serve no useful purpose, and make this opinion far too long, if we were to go on to list all of the complexities and perplexities to be found in the 11 pages of this policy. Suffice it to say that they remind us of what the New Hampshire Supreme Court said in De Lancey v. Rockingham Farmers' Mutual Fire Ins. Co., 52 N.H. 581, 587 (Sup.Ct.1873) '* * * policies like those used in this case, of a most complicated and elaborate structure were prepared, and filled with covenants, exceptions, stipulations, provisos, rules, regulations and conditions, rendering the policy void in a great number of contingencies. These provisions were of such bulk and character that they would not be understood by men in general, even if subjected to a careful and laborious study * * *.

As if it were feared that, notwithstanding these discouraging circumstances, some extremely eccentric person might attempt to examine and understand the meaning of the involved and intricate net in which he was to be entangled, it was printed in such small type, and in lines so long and so crowded that the perusal of it was made physically difficult, painful and injurious. Seldom has the art of typography been so successfully diverted from the diffusion of knowledge to the suppression of it. * * *'

In Precipio v. Insurance Co. of State of Pennsylvania, 103 N.J.L. 589, 592, 137 A. 549 (E. & A.1927), the Court of Errors and Appeals, quoting with approval from Nelson v. Traders' Insurance Co., 181 N.Y. 472, 74 N.E. 421 (Ct.App.1905), said:

'It was for the purpose of having contracts of insurance read clearly and intelligibly to the ordinary understanding of men that the legislature, in 1886, provided for a uniform, or standard, policy of insurance. Insurers issuing policies were compelled to use one form of contract, whose meaning should not be obscured by unusual clauses, nor concealed in a mass of verbiage, and whose provisions, being plain, could result in no injustice in their enforcement.'

In 1944 (L.1944, c. 171) and 1954 (L.1954, c. 268) the 1886 standard fire insurance policy was comprehensively simplified and liberalized, to the great benefit of the public. The addition to that form of the mass of papers used here unnecessarily undoes that which was accomplished by that revision--unnecessary because our great insurance industry is certainly equal to the task of preparing a simpler 'Homeowners Policy.'

In the policy before us there are, on separate pages, three different provisions as to notice and two as to proofs of loss. True, each relates to a different coverage, but what clause relates to which coverage can be determined only by a lawyer or an insurance expert, and perhaps even by them with difficulty.

The proof of loss clause which the insurance company insists applies here is that which is contained in lines 90 to 113 of the standard fire insurance policy which was, of course, designed for fire losses. Reading it in this policy, few laymen would suspect that it relates to a loss by theft.

Against this background of ambiguity and uncertainty, we find, as we have said, that what transpired here estops the insurance company...

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