Northern Insurance v. National Union Fire Insurance

WORKS, J.,

pro

tem.

This is an action to recover upon an insurance policy for a loss by fire suffered by plaintiff’s assignor. Judgment was rendered in favor of plaintiff and it is from that judgment that the defendant appeals.

The amended complaint alleges that the policy was the California standard form fire insurance policy, that the fire occurred on July 26, 1914, and that proofs of loss were presented to the- appellant on August 8th. It is then alleged,

11 That the defendant., did disclaim any liability whatsoever under its said policy for and on account of the loss incurred” by respondent’s assignor. It is also alleged that respondent’s assignor demanded payment from appellant of the amount stated to be due from it and that appellant failed and refused to pay. The action was commenced September 23, 1914.

The appellant objects that, the amended complaint does not state facts sufficient to constitute a cause of action, for the reason that the litigation was prematurely commenced. The California standard form fire insurance policy provides (Stats. 1909, p. 408; Deering’s Gen. Laws, Act 1670, p. 630) : “This company shall be deemed to have assented to the amount of the loss claimed by the insured . . . unless within twenty days after the receipt thereof, . . . the company shall notify the

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insured in writing of its partial or total disagreement with the amount of loss claimed by him. ...” Then follow certain provisions for the appointment of appraisers to estimate and appraise the loss, under certain conditions, and also for the manner in which they shall perform their work and for their compensation. The form then proceeds: “If for any reason not attributable to the insured, or to the appraiser appointed by him, an appraisement is not had and completed within ninety days after said preliminary proof of loss is received by this company, the insured is not to be prejudiced by the failure to make an appraisement, and may prove the amount of his loás in an action brought without such appraisement.” The allegation of the amended complaint to the effect that appellant disclaimed liability under the policy will be taken as an allegation that the disclaimer was in writing, as the terms of the policy above quoted require that it should have been in that form. Such a construction is required, under the rule that pleadings are to be construed most strongly against the pleader, as well as under the rule that where a thing is alleged to have been done, it will be presumed to have been done in writing if the law requires it so to have been done.