Wells-Stewart Const. Co. v. General Ins. Co. of America
| Citation | 10 Ariz.App. 590,461 P.2d 98 |
| Decision Date | 19 November 1969 |
| Docket Number | No. 1,CA-CIV,WELLS-STEWART,1 |
| Parties | CONSTRUCTION CO., Inc., a corporation, Appellant, v. GENERAL INSURANCE COMPANY OF AMERICA, Appellee. 828. |
| Court | Court of Appeals of Arizona |
McKesson, Renaud, Cook, Miller & Cordova, by James M. Videan, Phoenix, for appellant.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Killingsworth, Richard J. Woods, Phoenix, for appellee.
Wells-Stewart Construction Co., Inc., appellant herein and hereinafter referred to as Wells-Stewart, was sued by the Paul C. Helmick Corporation, hereinafter referred to as Helmick, for damages caused by the negligence of Wells-Stewart's employee, to a heavy piece of road building equipment which Helmick had leased to Wells-Stewart. Following the trial of this issue to the court sitting without a jury, a judgment was entered in favor of Helmick and against Wells-Stewart in the sum of $2,672.30, plus interest and costs.
Prior to the entry of the above-mentioned judgment, Wells-Stewart filed a third-party complaint against its insurer General Insurance Company of America claiming that the damage to the road building equipment if any, was covered by a policy issued by General.
General answered the third-party complaint raising two main defenses, first, that Wells-Stewart failed to comply with the terms and conditions of the contract of insurance in that it failed to give notice and proof of loss, as required by paragraph 12, and, second, that it failed to bring suit on the claim within one year, as required by paragraph 15 1 of the insurance contract.
On the basis of the legal theory of its answer, General filed a motion for summary judgment. This motion was supported by the affidavit of Mr. Philip J. McKirchy, Claims Manager for General. Wells-Stewart replied stating that if the factual conclusions stated by General are taken as correct, summary judgment still should not be granted because the issue of the waiver of the effect of paragraphs 12 and 15 still remained and that this issue constitutes a genuine issue of a material fact which precluded the granting of summary judgment. In support of this position, Wells-Stewart executed an affidavit and attached seven (7) letter exhibits supporting its theory of waiver.
The trial court granted summary judgment to General. It is from this summary judgment that Wells-Stewart appeals.
General now concedes that it had actual notice of the loss and that such notice is a ready substitute for formal proof of loss required under paragraph 12 of the insurance contract and does not argue this defense on appeal.
There remains for our consideration then only paragraph 15, the one-year provision within which Wells-Stewart was required to bring an action. Wells-Stewart first attacks the form of the affidavit executed by Philip J. McKirchy, Claims Manager of General, which was attached to General's motion for summary judgment on the basis that his statements constitute mere conclusions of ultimate fact and of law and fail to show affirmatively that the affiant is competent to testify at the trial to the matters affirmed.
That part of the affidavit necessary to the disposition of this point is as follows:
'PHILIP J. McKIRCHY, being first duly sworn, deposes upon oath and says:
'That he is the Claims Manager for the GENERAL INSURANCE COMPANY OF AMERICA;
'That policy of insurance No. MF 122183 was issued by the GENERAL INSURANCE COMPANY OF AMERICA and was in full force and effect on May 31, 1962;
'That no action was brought upon the subject policy of insurance for or on behalf of WELLS-STEWART CONSTRUCTION CO., INC., within one year following the alleged loss on May 31, 1962, as provided by the policy;
'And that the specimen of conditions attached hereto are the same as the conditions contained in the policy of insurance No. MF 122183.'
We agree with Wells-Stewart that the affidavit of Philip J. McKirchy is defective. Rule 56(e), Rules of Civil Procedure, 16 A.R.S., requires that:
'Supporting * * * affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * *'
His affidavit does not show that his statements are based upon his personal knowledge of the case. It also fails to show affirmatively that affiant is competent to testify to the matters contained in the affidavit. Elerick v. H. B. Rocklin Real Estate Investments, 102 Ariz. 78, 425 P.2d 103 (1967); Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187 (1963); 6 Moore's Federal Practice (2nd ed. 1953) Sec. 56.22(1) at 2803; 3 Barron & Holtzoff (Rules Ed. 1958) Sec. 1237 at 164. Wells-Stewart properly preserved this issue for appeal by raising its objection to the form of the affidavit in its memorandum in opposition to summary judgment Before the trial court. See Hoffer v. Wetzel, 95 Ariz. 384, 387, 390 P.2d 911 (1964); Berry v. Robotka, 9 Ariz.App. 461, 453 P.2d 972, 977 (1969); Usa v. Western Electric Co. Inc., 337 F.2d 568, 574--575 (9th Cir. 1964); 3 Barron & Holtzoff (Rules Ed. 1958) Sec. 1237 at 171. Consequently, McKirchy's affidavit could not be considered by the trial court in support of the motion for summary judgment.
We must now determine whether or not there was any other support for the granting of the motion. Rule 56(c), Rules of Civil Procedure, reads in part as follows:
'* * * The judgment sought shall be rendered forthwith if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'
The trial court had before it for consideration the third-party complaint of Wells-Stewart which alleged its insurance coverage by General and its damage under the policy, the third-party answer by General denying liability under the policy because of Wells-Stewart's failure to bring suit on its claim within one year of the accident as required by paragraph 15, and Wells-Stewart's affidavit and letters.
Wells-Stewart, by its complaint and affidavit, does not deny the insurance policy or its terms, nor does it claim that the action was filed within the one-year limitation period. Rather, it admits them and seeks to avoid the effect of paragraph 15 by raising the defense of waiver. The essential element in the defense of waiver is the voluntary and intentional relinquishment of a known right. Murphey v. Valenzuela, 95 Ariz. 30, 386 P.2d 78 (1963); Builders Supply Corporation v. Marshall, 88 Ariz. 89, 352 P.2d 982 (1960); City of Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411 (1957). Our court in Jones v. Industrial Commission, 1 Ariz.App. 218, 401 P.2d 172, 177 (1965) said regarding the defense of waiver:
"'A waiver of a right cannot be established without a clear showing of an intent to relinquish such right, and doubtful cases will be decided against a waiver,' Greninger v. Fischer, 81 Cal.App.2d 549, 554, 184 P.2d 694, 697; nor will a waiver be presumed or implied contrary to the intention of a party whose rights would be injuriously affected, unless By his conduct the opposite party has been misled to his prejudice into the honest belief that such waiver was intended." (Emphasis added.)
Where summary judgment has been granted under Rule 56, Rules of Civil Procedure, we are required to view the pleadings, affidavits and admissions in the light most favorable to support the losing party; Peterson v. Valley National Bank of Phoenix, 90 Ariz. 361, 368 P.2d 317 (1962); Executive Towers v. Leonard, 7 Ariz.App. 331, 439 P.2d 303 (1968). This requires that in this case we must view the letters and pleadings in the light most favorable to support the defense of waiver. In support of its defense of waiver, Wells-Stewart cites Lindus v. Northern Insurance Company of New York, 103 Ariz. 160, 438 P.2d 311 (1968). In Lindus, where the policy of insurance required that notice be given by insured to the company, the court held that a two-year delay between the time of the accident and notice of the loss did not relieve the company of its contractual liability, where it failed to prove that it was prejudiced by the delay. This case deals with a 'notice' provision similar to paragraph 12 and there is nothing in the opinion relating to a 'limitation' provision similar to paragraph 15.
Wells-Stewart cites Truck Insurance Exchange v. Hale, 95 Ariz. 76, 386 P.2d 846 (1963)...
To continue reading
Request your trial
-
Mohave County v. Mohave-Kingman Estates, Inc.
...relinquishment aspect of waiver without mention of consideration. E. g., Murphey, supra ; Wells-Stewart Construction Co. v. General Ins. Co. of America, 10 Ariz.App. 590, 461 P.2d 98 (1969). In any event, there is nothing in the record to indicate clearly and convincingly an intention to ef......
-
Concannon v. Yewell
...intentional relinquishment of a known right. Murphey v. Valenzuela, 95 Ariz. 30, 386 P.2d 78 (1963); Wells-Stewart Constr. Co. v. General Ins. Co., 10 Ariz.App. 590, 461 P.2d 98 (1969). Waiver need not be expressed but may be inferred from conduct and is therefore a question of fact to be d......
-
Zuckerman v. Transamerica Ins. Co., 15661
...provisions such as that in question here have been held enforceable in Arizona. Wells-Stewart Construction Co., Inc. v. General Insurance Company of America, 10 Ariz.App. 590, 594, 461 P.2d 98, 102 (1969). However, the insurer's rights under such a provision may be lost by a waiver or estop......
-
W. J. Kroeger Co. v. Travelers Indem. Co., 12016
...First Security Bank v. Fireman's Fund Insurance Co., 12 Ariz.App. 476, 472 P.2d 87 (1970); Wells-Stewart Construction Co. v. General Insurance Company of America, 10 Ariz.App. 590, 461 P.2d 98 (1969). This is not an uncommon provision in a common insurance policy subject to the laws of diff......