Wiggin v. Nat'l Fire Ins. Co.

• Decision Date: 26 March 1930
• Citation: 271 Mass. 34,170 N.E. 795
• Parties: WIGGIN v. NATIONAL FIRE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 34

170 N.E. 795

WIGGIN

v.NATIONAL FIRE INS. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 26, 1930.

Report from Superior Court, Middlesex County; Frederic B. Greenhalge, Judge.

Action by Burton H. Wiggin against the National Fire Insurance Company. A demurrer to the declaration was sustained, and the case reported.

Judgment for defendant.

A. S. Howard, of Lowell, for plaintiff.

G. B. Rowell, of Boston, for defendant.

WAIT, J.

The plaintiff was third referee appointed by the insurance commissioner, pursuant to G. L. c. 175, § 100 as amended by St. 1924, c. 406, § 8, to determine the amount of loss after a fire on premises insured by the defendant. The statute provides that forthwith upon the publication of the award, such third referee shall furnish the company and the insured with a written statement of his claim for compensation and expenses; makes the company and the insured each liable for one half the compensation and expenses; and requires that the company shall withhold from the amount of the award one half ‘the compensation as demanded, or, in case of a review, as approved by commissioner, and one half of the expenses, of the third referee,’ and upon payment of the balance of the award that it shall pay to the referee ‘the full amount of the compensation to which he is entitled and his expenses.’ It further provides that a company or insured objecting to the compensation demanded may file a petition to review the compensation with the commissioner, who shall ‘approve or disapprove in whole or in part such compensation, and his decision in respect thereto shall be final and conclusive upon the parties.’

The declaration sets out the appointment, the publication of an award, the presentation of a claim for compensation in $825 and expenses amounting to $1,061.75, a petition for review by the company, hearing by the commissioner, and an award of $550, as compensation only. It further sets out a copy of the bill and of the plaintiff's answer in a proceeding, National Fire Ins. Co. v. William F. Goggin (Mass.) 166 N. E. 758, instituted to prevent an award by the referees and to procure the removal of the plaintiff as third referee, which, after a hearing in the Superior Court and appeal to this court, had been dismissed with costs to the defendant. It alleged that the costs awarded had been received; that $275 of the compensation claimed was for attending upon hearings on said cause and conferences with his attorneys; and that all the expenses claimed was money paid out for the reasonable legal services and expenses of his attorneys in defence of that cause. It admitted receipt of one half the compensation allowed by the commissioner; but charged that the defendant owed the plaintiff one half the $275 disallowed as compensation, and one half the $1,061.75 claimed as expenses. The Superior Court sustained a demurrer; and the case is before us upon a report with a stipulation that if the order sustaining the demurrer was right judgment is to enter for the defendant, otherwise the action is to stand for trial.

[2] The statute makes the finding of the commissioner final and conclusive on the award of compensation. No appeal therefrom is provided for. The only remedy of the plaintiff is by certiorari in such a case. See Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160, 163, 150 N. E. 892. The plaintiff contends that the statute is broad enough to include within the ‘expenses' of the referee which it requires to be paid such charges as here are made. ‘The word ‘expenses,’ although broad enough to include counsel fees, is of varying significance, dependent upon the connection in which it is used. * * * The meaning of the word must be determined in the light of the end to be attained by the statute in which it occurs.' Burrage v. County of Bristol, 210 Mass. 299, 300-301, 96 N. E. 719, 720. The earliest statutory provision for the payment of the third referee in insurance cases was made by St. 1896, ...