Beasley v. Pacific Indemnity Co.

DRAPER, P. J.

In this action upon a fire insurance policy, defendants’ motion for nonsuit was granted. Plaintiffs appeal from the ensuing judgment of dismissal.

The policy required filing of sworn proof of loss within 60 days after the loss, and also required that the insured, when required by the insurer, submit to an examination under oath and produce “all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost.” It is conceded that these requirements, if not waived by the insurer, are conditions precedent to an action on the policy. Nonsuit was granted upon the ground that neither condition was met.

[209]

The fire which damaged the insured equipment occurred October 17, 1956. An independent adjuster employed by defendant, and who had adjusted a previous fire loss of plaintiffs, inspected the premises and interviewed plaintiffs the next day, and had several additional conversations with either or both plaintiffs over some period thereafter. There is evidence (although contradicted by the adjuster when called under Code Civ. Proc., § 2055) that he told one plaintiff not to do anything, not to worry, that he would take care of everything, to leave it to him, and that it would take a little time to investigate the fire. Some six weeks after the fire, plaintiffs consulted an attorney". On December 19, after the 60-day period, he wrote the adjuster ‘ ‘ This will confirm our understanding that the Beasleys may have until January 10, 1957 in which to file a Proof of Loss.” The letter is the only evidence of this extension, and there is no showing of any conversation or correspondence which it “confirmed,” nor of any statement by the adjuster limiting to January 10 any waiver he may have made. A proof of loss was executed and forwarded by plaintiffs January 21, 96 days after the fire. On January 30, the adjuster returned the proof, pointing out “defects” in it, including the time of its filing. On February 8, plaintiffs’ attorney again filed this proof, apparently modified and amended. The complaint pleaded a waiver of the time limit for filing proof of loss.

In general, failure to file the proof within the time limited by the policy is fatal to an action upon it

(White