Rogers v. United States Fid. & Guar. Co.

[405]

HUFSTEDLER, J.

—Defendant, United States Fidelity and Guaranty Company (“Fidelity”), appeals from a judgment awarding plaintiff Rogers damages for breach of an insurance contract between them.

Fidelity contends that the evidence did not support the trial court’s finding that Rogers had performed the conditions imposed upon him by the insurance contract. The premise of Fidelity’s argument is that paragraph 8

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of a rider to the policy required Rogers to keep an inventory of all of his stamps and coins which were insured and that the uncontradicted evidence establishes that Rogers failed to do so. For reasons hereinafter discussed we hold that paragraph 8 did not become a part of the insurance contract and therefore the evidence adequately sustained the trial court’s challenged finding and hence the judgment.

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Summary of the Record

Rogers sued Fidelity and Fidelity’s agent, Demers, alleging a cause of action against Fidelity for breach of its insurance contract and against both Fidelity and Demers for damages resulting from Demers’s negligence in failing to advise Rogers about the meaning of the policy. The complaint is not a model of good pleading. The first count alleges a cause of action for breach of the insurance contract. The “second cause of action” consists of allegations of special damages, loss of profits, alleged to have been caused by the breach of contract pleaded in the “first cause of action.” It is, of course, an extension of the first count and not a separate cause of action. The third “cause of action” repleads the allegations of the first count and adds facts, relating both to Fidelity and to Demers, charging each with negligence resulting in damage to Rogers in the event that Rogers failed to recover on the contract theory.

The trial court found that Rogers sustained losses totaling $3,565.61 within the risks of loss insured by Fidelity while the policy was in full force and effect and “that plaintiff Richard Rogers performed all the conditions on his part to be performed under the policy.” The court further found that Rogers did not sustain any loss of profits caused by Fidelity’s breach of contract; that Demers was Fidelity’s agent;'and that “Demers did not fail to advise plaintiff concerning the