Plаintiff seeks the reversal of a summary judgment which dismissed a suit that he had filed against defendant to recover losses suffered when his clothing business was damaged by fire.
Plaintiff had been insured by a policy whiсh provided coverage for fire damage but he had allowed the policy to expire. A provision of limitation in the expired contract stated:
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless аll requirements of this policy shall have been complied with, and unless commenced within twelvе months next after inception of the loss.
Two days before the fire, plaintiff was issued an insurance binder from the defendant which also provided coverage in case of fire. The bindеr bore a “policy number” which was the same number as the expired policy and provided: “The insurance indicated has been applied for and is bound for 60 days from the effectivе date pending issuance of a policy to-you. Please accept this form as а binder.”
The trial court awarded the defendant summary judgment concluding that the legal effect of the binder was to reinstate the old policy and that under the terms of that policy plaintiff had to bring his action within 12 months after the inception of the loss which he had failed to do.
The plaintiff’s main contention is that the trial court erred in making him subject to the provisions of the policy which had expired because the binder was intended to bind coverage under a new policy which defendant failed to issue him. Thus, the plaintiff's argument continues, the one-year limitation in the expired policy does not apply but instead U.C.A., 1953, § 78-12-23 applies which provides for a six-yеar statute of limitations on actions brought upon instruments in writing.
We have examined the binder issued to the plaintiff and find that it is not ambiguous in its terms, even though we recognize that an ambiguity would permit parоl evidence to be admitted as to the intentions of the parties in using the language which they еmployed.
Winegar v. Smith Invest
*1359
ment Co.,
Utah,
It is true that the binder stated in the first sentence of its provisions that coverage was “bound for 60 days from the effective date pending issuance of a policy to you.” Standing by itself that language would admit of the construction urged for by the plaintiff, namely, that it wаs the intention of the parties to write and issue a new policy unrelated to the former policy which had expired. However, that language is modified by other provisions in the binder, onе of which is a blank for “Renewal date of policy if issued.” In that blank the agent issuing the binder had written the word “continuous.” Also in the binder was a blank for a “policy number.” In that blank was filled the number of the оld policy. It is thus clear to us from an examination of the entire binder that its only reasonable construction is that the parties intended to renew the expired policy. Otherwise, the reference to the policy number and the provision regarding renewal date would be meaningless and would have to be disregarded. We find no ambiguity in the language of the binder and therefоre affirm the conclusion of the trial court that the plaintiff was bound by the one-year limitation contained in the policy. The binder appears to be a form which was employed by the defendant both when writing coverage for the first time and when renewing an existing policy. The form was adaptable to either situation.
Plaintiff cites and relies on the case of
Hoeppner v. Utah Farm Bureau Insurance Co.,
Utah,
The judgment is affirmed. Costs awarded to respondent.