*1 January rehearing Argued petition reversed March May 22, 1962 denied BELL et FIRE QUAKER MARINE CITY & al
INSURANCE COMPANY 2d 219
370 P. *2 argued Clinkinbeard, Karl the cause for Medford, appellant. Haviland brief were & On Clinkinbeard. argued respond- Day,
Ben the cause for Medford, Day Oourtright. were ent. the brief & On Chief Justice, Before and Sloan, McAllister, Justices. O’Connell, Lusk, Goodwin J. LUSK, policy of fire insurance. In on a
This is an action jury plaintiffs a verdict the defendant trial ensuing company appealed from has insurance judgment. assignments Dumber error, are a
There assignment di- case, take we view motion denial of the defendant’s court’s rected to ground involuntary that the action nonsuit on one is the limitations, the statute of is barred think that the motion discussion. We calls for allowed. have been should prescribes provisions 744.100 ORS certain which a policy property standard fire on in this state among following: must contain, them the policy recovery “No suit or action on this for the any claim shall be sustainable in court of equity requirements law or unless all the of this policy complied shall have been and unless with, inception within 12 commenced of the loss.” months next after provision. sued on contained The such a question is whether this action was commenced inception 12 months next after “within of the loss.” fire occurred on October 11, and the com- plaint on was filed October and summons de- livered the sheriff October 20, 1958. Service of complaint and summons was not made on the defend- ant until December 16, 1958. provides:
ORS *3 purpose determining “For the of whether an action has been commenced within time limited, an action shall defendant, summons served deemed be commenced as to each complaint when the is and the filed, on or on a Mm, eodefendant who joint or is otherwise contractor, united in interest with him.” provides:
ORS attempt “An commence an action shall equivalent to the deemed within commencement thereof, meaning chapter, of tMs when the com- plaint and the filed, summons delivered, with actually it be served, intent the sheriff county officer of the or other which the defend- usually one of them ants or or last or if a resided; corporation be to the sheriff defendant, or other county corporation in which such officer general or law, was established where its busi- kept or transacted, was where it ness an office 618 an at- business. But such transaction of
for the publication tempt the first be followed shall sixty within thereof, the service summons, days.” govern if the twelve-
If sections ease these began the date of the fire months’ to run from it not in that event would action is barred, days and 64 have been until months commenced after the fire. plaintiffs that the was com contend (which day complaint filed was
menced on the statutory day expiration 12- one before the governing period) statute is months’ and that ORS provides: 15.020, which by filing a com- “Action shall be commenced Any
plaint time after with the clerk of court. plaintiff or his attor- the action is commenced ney many may original as summonses issue as may either elect and deliver one such summonses county in which of each service the sheriff is desired.” defendant filing complaint is the this section Under purposes except an action for all commencement determining running limitations. statute Matlock, 307, 170 P and cases Matlock v. 87 Or argue present plaintiffs But there cited. the rule of such as ease falls within decisions Schul Bank, First National 349 P2d merich v. Or Mecklem, 126 P2d 270, 272, Nickerson Or 849; Graves, 406; 1095; Shea Mining Co., and Burns v. White Swan holdings these cases is thus 637. The P *4 Bank, v. First National in Schulmerich summarized (a supra contest), at 531: will general ch 12 of of limitations, “The statutes apply to law to common are intended ORS They special rights action. do a not affect statu- tory np proceeding which sets own as its limitation probate pertaining code to has the will contests. provi was a to a Nickerson v. Mecklem suit enforce corrupt practices sion Burns v. White Swan act; Mining lien; a suit foreclose a miner’s to to a mechanic’s Shea v. a suit foreclose lien. Graves McKay al., Peters et et al. 238 P2d 412, 225, by plaintiffs, another cited was 535, case property. an action to recover escheated action brought against was a the state under consent statute “ periods [n] and it held that one of the of limita specified chapter relating tion in 1, Title [OCLA], refer to limitation the time within which actions, may brought against an action be the state.” 195 Or chapter at 423. Title is now Title OCLA, ORS, chapter 12. apposite
These decisions are not because this is against neither an state nor one to vindicate right by but a common statute, created law action money right to recover under a contract. The would legislature, have existed there been no statute. power regulate the exercise its the business of insurance the enactment of has, 744.100, ORS prescribed provisions certain which shall be included every among contract of fire them the insurance, bringing limitation 12-months’ for an action on company’s such a contract. It limited an has right has contract, it not undertaken either to right provide remedy. special create a If no stat- prescribed, ute of limitations had been the case would governed six-year which 12.080, ORS fixes a bringing an limitation action on a contract. Nor chapter applicable Title ORS, less *5 620 special present limitation
to the case because suing governing of fire time on contract the provides: 12.010 insurance, for OBS commenced within law shall “Actions at chapter, periods prescribed after in this the the cause of except where a accrued, shall have ** *” by prescribed limitation is statute. different (Italics added.) legislature and has amended OBS 12.080 In effect, limitation with re- is no different than if the case spect added to that contracts been by proviso. way exception or section of of that the commencement therefore, We think, by not OBS determined, 15.020, the action in this case is latter section and 12.030. Under but OBS 12.020 equiva attempt an action is deemed an commence attempt, an such thereof, lent to the commencement to be must be followed service effective, days filing complaint. within after summons 60 days elapsed as more than 60 have after When, here, filing complaint before such and in service meantime the of limitation has run, Lang Hill, action is barred. 371, 226 Or Ladd, 316; Dutro v. 91 P 120, 459. plaintiffs though even insist, however, that, govern and 12.030 still the action case, OBS They upon rely language was commenced time. must 744.100 that the action be “commenced of OBS inception next within months loss.” after added.) (Italics event asserted to That is have oc- February on when defendant mailed curred proofs plaintiffs, after latter had submitted to the rejecting declaring claim their letter loss, complaint to be void. Service summons and than months was made within less the defendant February plaintiffs’ if construc- 13,1958, so, after inception cor- “after loss,” tion words they within time. were rect, proceeds argument for that construction Egan In Insurance Co., wise: Oakland Rep Am the court 42 P construed St *6 policy reading: provision a fire of “* * * or action No suit on this for ** * recovery of shall be sustained
the
claim
next
within six months
after the
unless commenced
* * *”
occurred.
have
29
at 404.
fire shall
Or
provision
given
that
should be
held
The court
unambiguous meaning
according
plain and
to its
effect
approve the decisions of some of the
declined to
and
there
no material dif-
assumed
is
courts which
phrase “after
fire”
the
the
and “after
ference between
language
loss” or
similar
thereto. The court
the
pointed
while
courts
that,
out
some
had construed such
phrases
to mean
as “after
loss”
“that the limita-
computed
tion shall
from
time
amount of
payable, and the
loss is ascertained and
assured’s
right
bring
from
to
an action
and not
the time
accrues,
* *
happening of
loss
other courts
of the
equal
respectability
weight
had construed those
right
phrases
to mean “that the assured’s
happening
computed from the date of the
must be
not from the time
insurer
is re
loss,
pay.”
quired to
at
406.
405,
One
the eases
in which
court had
referred to
assimilated “after
“after the
In
the fire” to
loss”
Steel
Phoenix
Company,
51 F
715,
surance
decision
Circuit
(aff
Appeals
Ninth
for the
Circuit
154 US
Court
1064). According
L
ed
S Ct
518,
argument
plaintiffs,
change
in the
on behalf
language
(as
“fire”
statute from
to “loss”
puts
brought
Oregon
it)
brief
has
law under the
Company
rule of the Phoenix Insurance
case.
change
language
This
was effected Ore
gon
Chapter
Laws
section
an
amendment
provided
of OCLA, section
which
that the ac
101-1801,
tion must be commenced “within twelve months next
language,
after the
But the
fire.”
new
it should be
“after
noted,
not “after the
occurrence of
loss”,
inception
“after
loss”, but
loss.” The ex
planation of the reason
amendment and its
proper
history
construction, in view of the
behind it,
Margulies
City
Quaker
are to be
found
Fire &
App
Marine
Ins.
Div
twelve months after damage lightning. Forman v. for instance, York, 174 Misc. Co., New Home Insurance Security In Mut. Fire Fantozzi 445; N.Y.S.2d App. N.Y.S. 458. Div. surance clause in the stand the suit decisions, After these provide changed policy that no in 1943 ard Was within ‘unless commenced maintained suit twelve months could inception of the loss.’ next after The such, as one indorsements, extended coverage that are they involved, specifically provide here limitations and condi- to the stipulations, ‘subject tions at 102. ” fire insurance/ 97 NYS2d policy in York it had been court said that New settled that a century where policy provides law for almost within designated period that suit must be brought that damage” occurs, computed after “loss or the occurrence of the physical not from the time of loss, insured from the or the event casualty, against, time that accrues under liability provisions “after from whereas limitations policy; running fire” or “after the fire shall have occurred” from early been construed to mean that limitations days are to commence from the date of the destructive event rather than from the date when under liability policy accrues. ‹ continues: opinion mean
“Do the of the loss’ ‘inception words date of the of the loss or out happening damage is clear from the his- of which the claim arose? It fire of the limitation standard tory provisions use of the words policies ‘incep- to refer to the occur- tion of the loss’ was intended event to the of liabil- rence of the rise claim giving and not to the accrual of ity liability. ‘Inception the loss’ was used in the 1943 standard fire insur- ance ‘after the fire’ the sense policy used in the standard fire insurance policy prior that it was to also to additional except apply by indorsements standard coverages fire insurance policy.
“But the intention fire insurance of the draftsmen form standard does not alone ‹ This opinion, Egan of this court in Oak accords with *8 supra. Co., Insurance land fairly unless are used suffice words rea- that sonably ordinary make intention to the that clear purchases
business man who of insurance. Although perhaps been coverage a wide draftsmen of the apt language more could have it must be borne in mind that
used, extended might the authorized statute deal with variety types and that statutory sought, form language they employed, to have casualty, limitation start from the occurrence of the might situation, the event whatever it be, against. was insured believe that We ‘inception convey fee loss’ words with reasonable that intention clarity. ‘Inception’ means the be- origination. ‘Incep- ginning, commencement, equivalent tion of loss’ is occurrence of casualty against. insured hold, or event We having not that the been commenced therefore, suit, ‘inception after twelve months within loss,’ casualty the occurrence is, insured against, the claim is barred.” at 97 NYS2d 104. Longe’s followed in decision was Estate v. This America, 107 961; NYS2d Thames Assurance Co. of Corp. Realty M. v. Massachusetts F. & Ins. and Finkelstein v. Ameri 170; 2d NYS2d 747, 184
Misc (La App), N. J. 58 S2d Newark, can Ins. Co. of question, upon are no other decisions There 340. are far as we aware. so years Oregon change two statute came in the may change York New statute in the
after reasonably adoption of that have been an assumed to appellate division The decision statute. Margulies Supreme case is Court York New weight great not be with court entitled (see Gladden, Or 16, Little fact of that cause Gladden, 353, 361, 201 Or 443; P2d Castle al., et er v. State Macomb 675; *9 793), but also because tbe authoritative explanation change of the reason for the and what was designed accomplished by to be it. we think Indeed, opinion practically that the in that case is conclusive W¡e question. opinion are, therefore, change the 1945 amendment has made no in the law as by Egan enunciated this court in v. Oakland Insurance supra, present since that, action was not commenced within 12months after the it is barred. fire, judgment
The is reversed. dissenting.
SLOAN, J., provision The OES which defines what attempt shall be deemed “an to commence an action” makes no reference to the kind of action but limits the requirement to actions commenced “within the mean- ing chapter.” of this This action, whatever its nature, any respect was not commenced in within tbe limita- requirements Chapter governed tions or 12. It was special statute of limitations, and, it therefore, complaint was commenced pro- when the was filed as vided OES 15.020. It is to be noted that applies just section special kind of action, not proceeding. language found in Schulmerick v. First National nk,
Ba 1960, 220 P2d general “The that, statutes of ch limitations, OES apply are rights intended to common law They special statutory action. pro do not affect a ceeding up which sets its own limitation as has the * * *” probate pertaining code to will contests. language was not intended as of limitation. It cer- tainly should not be read to mean that OES 15.020 is special restricted to forms of action. judgment should be affirmed.