*1 have what we said are In accordance with depositors, depositors or old new that the order above, it is conclusion our prefer- “no funds and with as trust treated deposits Banking Commissioner deposits priority” any ence or July 7, treated as trust made classification. same given It or- funds should be effect. so (All emphasis dered. No costs awarded. sup point which another There is added.) It have reached. ports the conclusion we at contestants, be noted
will TUCKETT, CALLISTER, HENRIOD emphasis on tempting entire ELLETT, pref JJ., concur. 7-2-15 that “No language in Sec. given priorities erences in ordinarily as are except such liquidating the supervising and
curred institution,” ignored
affairs of such immediately follows
the clause which except “and
language. That
is:
clause
by law.”
provided
as are otherivise
In regard the claim of commin 20, 1968. June Money differ gling funds: is treated fungi ently normally called from what there is com and the rule is that
bles money
mingling by mixing when known
amount owned each claimant is kept of.4 track Clark, P. -that note was Nelden 20 Utah 3. We also Sec. 7-7-43 Express Co. v. later enactment than as stated Pacific Intermountain 7-2-15 opinion Commission, if the statutes were Tax 2d even State 7 Utah usually conflict, later P.2d 549. prior preference See 4. 1 over the enactment. Am.Jur.2d 289. policy required thereof. written no-. tice, filing and the of loss within days. provisions 'Neither of the honored, finally but sup- of loss plied about junc- six months later. At this *2 the ture defendant could have denied liabil- ity, but for some undisclosed it did reason The policy not. also an arbitration clause, which was not In addi- followed. ** tion, it provision had a that “No suit * * * shall be sustainable unless all requirements have, the- of policy complied with, been and unless commenced of, within inception months next after loss,” the language crystal was —which (cid:127) July 15, 1966, clear. plaintiff’s On comply failure to with other the terms of Hughes, City, Robert W. for Salt Lake policy, equally crystal clear, over — —and appellant. prior deadline,: three weeks to the 12-month Child, Ray, R. M. Quinney & Nebek- defendant -claim, based an- on- er, City, relieved., respondent. Lake provision Salt for that obligation
it from appeared if it that HENRIOD, result of the was a loss sorcalled “inside. Justice: job.” rejection put plaintiff This on notice Appeal summary judgment from a dis- ample time for him the lim- to invoke missing plaintiff’s recovery complaint for provision, itations filing anent ground under policy, an insurance of^ which he advantage. Up took no to that had not filed within his suit point required genuine time was-no issue of fact.. terms policy. Affirmed with costs to defendant. 3, 1966, plaintiff this, On November suit, three pro-, months after the limitations discov'ery process From use' under' policy. motion, vision A defendant’s rules, employed by sides, both facts summary judgment hearing was set for appear 1965, August 8, On follows: ,of' on October day and on’the plaintiff’s some of’ equipment disappeared with, hearing, 'plaintiff in' resulting plaintiff. in' walked loss to Plaintiff orally salesman, notified affidavits, couple by Hanney, as- —one agent serting for a local insur- rule is period-within contractual which he agent agency in turn time an brought, ance action must be commences accrues, All he said therein for defendant insurer. to run at the time to sue irrespective after defendant’s was that date of For this loss.” claim, him, plaintiff’s ipse dixit, Appleman, the latter called counsel cites ' simply Practice, that thereafter advised his ance Law and superior, agency, the local copying immediate the authorities in verbatim defendant, pay thereto, if the Beneficial did presumably footnote cases —16 claim, plaintiff’s supporting Bene- gratuity. latter would sue the above employer ficial, suggesting resub- that his — Appleman Mr. actually What said com- juncture mit the At this all. —thafs did, pletely is antithetical he thereto. What genuine there was no issue of fact say particular policy was: “Under word- tried, nothing and there in the record to ings, has been held that the contractual anyone paid reflect a bit attention period of limitations commences at to run Hanney’s report suggestion. Contra- the time Similarly, loss or death. riwise, defendant, Beneficial, reaffirmed resulting death, date of an accident previous October, rejection in At its death, the date of has been held to con- point genuine there was still no issue *3 (Emphasis supplied.) trol.” of fact. affidavit, by TUCKETT, and plaintiff JJ., The second Ander- CALLISTER con- son, presented hour, cur. at the zero besides being self-serving, quite inconsistent CROCKETT, (dissenting). Chief Justice by Hanney,
with that walked in who summary judgment is a This which turns once in his affidavit said assured An- plaintiff out court without and anybody trial derson that said the matter would opportunity presenting his evidence. again. intersection, considered At only This should be done when under except there was go no down by view of facts as contended him he having genuine road traveled those could not establish a to recover. course, issue as to its which could end no- except in the trial where court’s cul de sac plaintiff It is true that'the did not com- poster with its of “dismissal.” mence his action within the one after alleged It is interesting significant Notwithstanding most and loss. fact, plaintiff’s only argument my opinion note that the and it is the affi- appeal epitomized plaintiff the backbone and Kent davits Mr. Hanney agent poli- majority brief’s “The him the (the statement that who sold cy) presented there is an issue of fact unusual in view of rec- Trans-Western’s which should he tried in determine order to payment, ommendation of whether the defendant company waived the matter should be Mr. reconsidered. policy. time limit stated in the Hanney It is ex- advised that Trans- affiant that, tremely important though plain- even agreed Western to resubmit the matter Hanney tiff knew that Mr. settle could not to Beneficial. hut had to submit it to the de- In the October, latter af- company, appears fendant it nevertheless fiant by telephone was advised Ben- Hanney authority negotiate had again rejected eficial his claim. plaintiff reasonably rely could look to and 7. Affiant upon relied the agent of
upon representations Hanney made failing an ac- commence Beneficial respect negotiations to the as to set- tion within twelve months from the time tlement. occurred, the loss that was not un- plaintiff The affidavit of states: til period twleve had months [******] expired that plaintiff learned that Bene- had his claim. August 3. That on or about ficial immediately affiant suffered a loss and support In position of his and the aver- advised Hanney, Mr. Kent and thereaft- affidavit, ments in his own also er affiant submitted of loss filed the affidavit of Kent Beneficial. part: states in
4. Affiant inquired of Mr. Hanney, # [*] [*] [*] [*] [*] after a elapsed, reasonable had or about 4. On day the 8th Au- concerning his claim for the loss of gust, 1965, Anderson suffered a loss of equipment, advised Han- Mr. equipment and affiant received verbal ney that the company was considering notice said upon loss from Anderson the claim and that Trans-Western discovery, Anderson’s and later assisted recommended payment preparing Anderson in of loss filed. which was submitted Trans-Western *4 February, to Beneficial in 1967.
5. Affiant received a letter July 15, Affiant, Beneficial rejecting dated 1966 request 5. at the Ander- son, claim as complaint outlined in his in upon and initiative, his own on oc- action, this inquired advised that Bene- casion of Trans-Western con- was, in error and that such cerning action above, claim described fre- ficial part Beneficial, extremely quently, every so, other week or between
I'J'J right reason of the insurer to 1966, and was ad- July of and March by Mr. of loss and able time limitations or more occasions on one vised unquestion is an action bringing that for the of Trans-Western Davis Neil why be had been able. There are reasons in and ivas order claim fact and insurer. him to both insured beneficial to payment recommended for dispatch in an enables them the business passed Ander- on to Affiant Beneficial. expeditious manner while concerning payment efficient and replies son the proofs necessary witnesses are aforesaid. and/or fresh and of events is available recollection telephone advised 6. Affiant was Notwithstanding their memories. Beneficial that and Anderson Davis provide in insur such limitations in the lat- rejected Anderson’s policies, not ance their enforcement is July, related part 1966. Anderson ter By that without limitation. the same token rejecting a letter that had received justice public in the interest law his claim. upon policy imposes con limitations provisions,1 generally that tract held it Affiant and Anderson reviewed policies will limitation af- letter of Beneficial’s not be enforced unreasonable if it office fiant went to Trans-Western’s under the circumstances results so that unless Beneficial advised Mr. Davis inequity injustice.2 of the rea or One Anderson paid Anderson’s emphasizing sons the soundness of bring legal requested would action is that the reason of statute al rule law claim resubmitted and Anderson’s brought on a written lows action to ad- so Affiant was advised Anderson. years, provi and this contract within six October, 1966, vised in the latter derogation sion of contract is in that Beneficial had the recon- right.3 sideration of Anderson claim. crime, involving p. g., 1. E. that contracts also 53 C.J.S. Limitations of Actions law, Capehart Heady, wrongs, and cf. or violations of 969 v. 206 Cal. civil frauds App.2d 386, against public Cal.Rptr. un- A.L.R. are 6 or otherwise 1190, dealing limita- 3d witli shortened enforceable see 17 C.J.S. Contracts validly seq. lease, stating: seq.; 17 Am.Jur.2d et tion contracted, qualified, however, Gan 980 et stipulation re- de- The reasonableness quirement pends, fixed the con- on the words of alone imposition particular upon tract, show so unreasonable the facts of a but [Citing advantage. Security v. authori- Co. undue Columbia case. See Co., Liability ties.] & Accident Aetna derogation 3.That such contracts P. and Ward Wash. general Garages, System Inc., limitations are not statute of Auto Parks & Hopper, Cal.App.Supp.2d 879, 140 Cal. see Lewis v. P.2d 577. See favored
178 accrues, irrespective doctrine the date
There is another of insurance to sue of pertinency [Citing here: when a of loss. numerous law which has cases.] statutory is time than limitation shorter the subject poli- It is the also to be noted that provided bringing the an action a for of on cy arbitration, provided here for which pe- by policy, the loss covered an insurance accomplished. was never resorted to nor the begin cause riod does not to run until question It should be that the observed of court so declared action arises. This proof furnished whether or not of loss was Sling many years ago Hong in case of the days part within of this case. 60 not 4 Co., Royal Ins. et al.: has raised defendant Beneficial ** * Ordinarily, party has where question. finally the itWhen action, bring in time which to an IS, plaintiff’s 1966, nearly a July claim on time which has the whole in of loss, alleged the it made no it, pol- bring that, hold where a and we proof letter of mention of of Its the loss. icy provides fire that no of insurance solely ground that the * * * aft- brought suit shall until coverage loss was one excluded from had, er an arbitration paragraph policy excepted the 9 of which done, may extend act extends or which liability which resulted for loss indefinitely time in the suit the * * * “fraudulent or act criminal done brought, the true intent of any employee insured.” In of view parties is that the 12-month limitation company’s de fact that this was the begin does not run until the cause fense, there was a whether or not accrues, delayed action unless time, adversely way af loss no ** through the fault of the insured. company. fected the See Stewart v. Com general That this is affirmed law etc.,5 Co., held mercial Ins. wherein it was authority Appleman the eminent on company’s view of defense ance, 11611, 3, wherein insurable interest claimants no he states: automobile, furnishing an aof required by as loss “would general
The most rule followed act been useless on claim courts, however, is that the contractual ants,” way prejudiced company, no commences at the time liability by App.2d 365, P.2d rule is that a denial of Dechter v. Na Knights grounds relating proofs and Ladies insurer on tional Council Security, ordinarily 329, operate as a 130 Minn. N.W. loss will waiver 742. policy provisions requiring pres- P. 307. 8 Utah ”* * * proofs. Am. P.2d 29A entation Utah general “The Sec. 1432 Jur.Ins. states:
17Q ground and therefore afforded it July letter of 15, 1966. It is un- not at all usual, against explained defense as nor insured unreasonable for an case, (plaintiff re- rely upon Latimer to which I here) Justice spare fer agent (Mr. detailed discussion here. Hanney) pol- who sold him the icy to handle the business in connection impresses There is law which me fair it. seems to me that a court or dispute and reasonable where there is *6 jury may very well find the facts to be re over an insurance and there are reasonably such plaintiff could quirements of loss within 60 thought good have there possibility was a days, filed, days then after it is must suit, that the paid claim would be without elapse payable, period before a claim is circumstances, according to begin of limitation does not run until forth, law hereinabove the com- set company obliged is, pay, until the pany precluded insisting should arises; cause of action and other cases strictly one-year limita- statute of have held that does com point Appleman tions. On this on company mence until the has ance, 20A, Sec. makes presented.7 delay often to this statement: advantage company of the insurance it, making right use of as it has a the insurer Where induced reasona- do, paid should not be nor take advan belief the claim ble would be .it tage invoking application without literal cannot thereafter assert disadvantage 12-month limitation to the limitation. As insured. stated in the case It is submitted that on the basis of
Hong above, referred the insured Sling plaintiff contentions made there are should one after his issues of fact to be determined and that in sue arises. guarantees accordance with our of freedom undisputed . From the access to the courts for settlement averments of (cid:127) disputes quoted opportu- affidavits above it he should afforded the could well .be nity emphasis added.) negotiations (All found there were trial. going on plaintiff between the defendant
company ELLETT, J., dissenting until received the concurs in the opinion CROCKETT, first definite of his claim in the C. J. Appleman Appleman, above,
6. See Insurance Law & Ibid. Sec. foot- _. Practice, 9, and footnote au note 10 therein. cited; thorities see also O’Neal Equitable v. American Assurance. Co. of York, La.App.1964, New So.2d