Kintzel v. Wheatland Mutual Insurance Ass'n
203 N.W.2d 799
Iowa
1973
Check Treatment

*1 799 Dept. of Cor (1955); State Schraner

rection, Ind.App. 119 189 N.E.2d 135 Plaintiff, KINTZEL, B. Olive Casualty &Fire (1963); v. Houston Jones (La.App.1961); 134 So.2d 377 Greene’s. WHEATLAND MUTUAL INSURANCE Case, 857 (1932); Mass. N.E. 182 ASSOCIATION, Appellee, Boys, Jamesburg Home for Brown v. State N.J.Super. A.2d 445 Hicks, Kroth, Darrel D. Hicks and Marlene K. (Okl.1965); In re P.2d Appellants. Compensation Workmen’s § Blair, Reference (supp.); at 408 Guide No. 55033. Law, Compensation 4:08 Workmen’s § .Supreme of Court Iowa.

Jan. 1973. upon

Plaintiff relies cases the Cali- Appeals easily which are

fornia Court They prisoners

distinguished. all involve

working voluntary on a basis situations See, g., e.

analogous to work State release.

Comp. Compensa- Ins. Fund v. Workmen’s Bd., Appeals Cal.App.3d Cal.

tion citations;

Rptr. 247A.- (1970), cf. §

8, The Code. denying

Trial did not err in work- court compensation plaintiff.

men’s prisoners Although are not covered

III. working compensation while workmen’s industries, prison injuries are their by other work-

less real those suffered than Uncompensated

ers. disabilities beyond

endure termination incarceration uncontemplated form

are a cruel and They ob- punishment. are an

enhanced foreshadow

stacle to rehabilitation and prob- unique “The social cost.

calculable legisla- prisoners

lem for careful calls acts, compensation

tive amendment appropriate

adapting coverage their disability.” prison employment

kinds Law, Compensation Larson,

1A Workmen’s fed- states and the 47.31 at Several 762. legisla- government have enacted such

eral See, g., 18

tion. e. 4126. U.S.C. § depends problem in Iowa

Solution

upon legislative comparable action.

Affirmed. *3 Freese, Lowden, appel-

Norton & for lants. Vogel, Grinnell, &

Tomasek and Caster- Hamiel, Tipton, appellee. line & for REYNOLDSON, Justice. pol- is a on insurance law action seeking dam-

icy, windstorm After trial age the amount of $9457. facts, stipulated was en- court company and tered for defendant insurance Kintzel, B. against both plaintiff, Olive intervenors, Mar- Darrel D. Hicks appeal, Plaintiff did not lene K. Hicks. as to judgment is final trial and the court’s only appeal concerns her. This (hereafter called intervenors court, and the trial Hicks). We reverse remand. Proesch, wife and his Jr. John es- real sold Proesch) called

(hereafter un- Kintzel B. here involved Olive tate keep obligated her to contract which der a insured improvements buildings risks, including windstorm. various against main- required Kintzel ex- at her own adequate insurance tain occurred, that, if loss stipulated pense and “ * may be proceeds the insurance supervision of used under the [Proesch] proceeds if the the loss repair replace or funds such event but adequate; shall payment paid stand as for the balance due under its terms. From sums these facts defendant asserted [due contract].” Kintzel could show no “direct loss”—a term we duty discharged this Kintzel contractual shall examine later—and therefore she was by purchasing payment not entitled to under policy. defendant. named Olive B. Kintzel designated the insured and her as a con- The Kintzel April 7, action was filed purchaser. space tract In the reserved for 1966. Defendant’s answer was filed Feb- listing mortgage property, ruary 3, 23, 1967, interests February 1967. On “mortgagee” the word was stricken out conveyed Proesch the real estate to Hicks *4 Proesch, appeared: Jr., and this assigned and to him all interest in the “John Owner.” April 14, 1962, Proesch-Kintzel contract of “ * * * together with all causes ac- 6, 1965, April On her while contract tion that accrue or have accrued concern- unpaid with Proesch still had an balance of ing agreement said land and [the contract] $17,000, Kintzel entered into a con- Mrs. * * land above described *.” tract for the sale of the real estate to 14, contract, too, 1968, March On Hicks. This in- contained Hicks intervened in clause, Kintzel’s pending action obligating against surance Hicks to main- defendant. petition buildings tain insurance on the intervention and im- asserted Hicks as assignee Proesch’s provements security as the amount due entitled to the proceeds, insurance to be yet complied Kintzel. had not credited Hicks on the when, balance due later, under the days this condition five Proesch-Kintzel con- tract. damaged buildings were in the amount of by a severe windstorm. Hicks has a $9457 Summarizing position parties Kintzel, pending against claiming lawsuit proceeded trial, as this cause Kintzel as- promise by an oral the latter to continue right serted to recover as the named existing procured insurance until Hicks policy. sured claimed Hicks he was litigation,

his by stipulation, own. That payment entitled to assignee. as Proesch’s case, pending was deferred of this outcome Defendant insisted neither Kintzel nor and does not concern us here. Proesch, upon whose Hicks’ claim depends, could show Nor -“direct are we concerned with the loss” re- circum- sulting windstorm, from the of the second since both stances contract sale from simply security held title as Kintzel under to Hicks. A their re- determination of the spective installment presented by contracts appeal issues and in each must be remaining instance the solely provisions reached was more than the Proesch-Kintzel indebtedness. issued company defendant The trial court denied both Kintzel. Hicks, Kintzel and adopting defendant’s theory that

Following the neither had windstorm sustained a damage, “direct Kintz- required by el loss” as timely proof policy. filed a quote of loss. After We de- briefly fendant from the trial liability, denied court’s Kintzel conclusions: started this compel action payment petition “Plaintiff’s should be dismissed provisions.

by this Court for the reason that Insur- Defend-, Defendant’s alleged answer Policy Kintzel’s in- ance No. 11347issued terest at time of loss was that of a creditor ant Wheatland Mutual Insurance Asso- because of her later contract sale of the an indemnifying agreement ciation was property to Hicks. The Plaintiff, answer Kintzel, further al- protecting Olive B. leged the contract was not in default and against any loss by.her direct suffered the security substantially exceeded the un- coverage under of said and she policy. The compen- event show á under pecuniary and no such suffered * * token, as designation of Proesch owner and By *. the same sable loss purchaser as contract created the Kintzel petition are raised similar issues relationship if as Proesch had been Dar- same by Intervenors filed intervention mortgagee. have several K. Hicks called We times rel and Marlene D. Hicks said much. Hatch Commerce Ins. against the De- praying for Co., supple 216 Iowa 249 N.W. said Insurance Association fendant mented, (1933); N.W. Davidson v. should also petition of intervention Iowa Hawkeye Ins. 32 N.W. dismissed Estate, In re Bernhard’s (1887). Cf. heavily our leaned on The trial court 603, 112 134 Iowa N.W. 86 Hawkeye Ins. early Davidson v. case apparent intended such re also defendant 514 (1887) N.W. sult. we see reason for nam Otherwise also conclusion. See for this authority ing Proesch at all. Couch Insur See In- City Mutual Farm McWilliams :68, 29:103-:104, pp. ance 2d 29:67- 352- §§ Ass’n, surance 54, 338-90 (1960), 915(a), *5 1009-1010; therefore hold Proesch’s status was We pp. same as if he had been named as the mort- pp. at 933-934. policy. in gagee the hold the We further far as pursue question not the needWe policy independent terms him afforded Kintzel, appeal not did as it who concerns by including right to sue these terms as as the trial court’s to whom part of the contract of insurance: binding. both final and is matter, Proesch sued to Kintzel? viewable course sues raised fore us—can Hicks This limit our bring we by reiterate this assigned us holding to appealing policy Before the recover as errors only is of litigants. discussing this law action real only. insurance assignee of specific issue be- We re- is- is- of trustee) [Proesch], cy, shall be surance as gee as “Loss [*] be invalidated [his] [*] (or trustee) only mortgagor or ff [*] interest damage, to the payable by any may interest if or owner to named any, appear, therein, act or under this of mortgagee in this and this in- neglect [Kintzel] shall not mortga- policy, poli- (or of errors, of assigned three two Hicks was the “interest” Proesch re- What in trial alleged error which deal As policy? to in the in almost all ferred claim. These of Kintzel’s denial cases, court’s instrument. not defined is by not relied on may interest, claimed errors and nature of that The extent Hicks, appealed, not and since Kintzel has course, only under the may be determined disregard we them. terms the sales contract. remaining assignment asserts error contract, Turning interest of finding Hicks could not recover pur- by unpaid is Proesch measured assignee. ground is the

Proesch’s buyer’s price, by the obli- chase reinforced if upon prevail, he is to which Hicks must premises keep insured for the gation to prevail all. unpaid benefit for less than the seller’s not purchase price, “for the further balance explored I. First to be is the status payment of the sums herein for right If he was reme- Proesch. without mentioned.” circumstances, nothing he had dy these assign to Hicks. terms, policy Irrespective a covenant mortgagee, by adopt rule that refuse to ar our We defendant’s acquire mortgage, gument condition could not Proesch Bartlett, supra. policy in a of insurance issued from The sales contract an interest applicable carry is mortgagor, provisions here contained the to the mortgage as did the analogy. v. North- Johnson Minnesota Land ern & Investment su- mortgagor cove- have held where We pra. Clearly, Proesch an outstanding held maintain insurance the benefit nants to with reference to the policy virtue policy mortgagee, a of insurance alone, following of the sales contract him inure to the benefit of the held will mortgagee logical analogy to a conclusion. right, mortgagee equitable as a matter of acquire was in ex- II. Hicks regardless of whether We have said could payable rights except press mortgagee assignee terms no of Proesch. Defendant, challenging efficacy not. Minnesota Land Northern of this Johnson assignment, argues & Investment 150 N.W. on the one hand the as- Wicke, signment Heins v. fell short because the specifically mentioned, 71 N.W. 345 and on the oth- er hand that the transfer was a blatant ef- Johnson, said, supra, we Iowa at put fort to Hicks in the shoes of Proesch. 344, 150 at 598: N.W. apparent It is that this was the intent of * * * assignor assignee. perceive that, We settled where a “[I]t convincing why reason the intent of the mortgagor covenants to maintain insur- contracting parties prevail. should not mortgagee, the "benefit of the ance for of insurance held then a him liberally We have construed such instru- mortga- will inure to the benefit of *6 carry purpose par- ments to out the of the right, gee equitable as a matter re- of Petty ties. v. Mutual Benefit Life Ins. gardless policy the was in whether Co., 465-466, 455, 613, 235 Iowa express payable mortgagee terms to the 618 (1944) court said: or not. [Citations.]” special necessary “No form of words is The same rule was articulated in Winne assignment, to effect in in the absence of shiek Mutual Insurance Association v. statutory provisions partic- prescribing a Roach, 354, 257 Iowa 132 436 N.W.2d Any ular language, mode form. how- (1965); Central Nat. Bank & Trust Co. v. informal, ever if it shows the intention Simmer, 784, 228 Iowa 293 N.W. 460 of the owner the chose in action to (1940); and in First Trust Stock Joint transfer it will be sufficient to vest Duroe, 795, Land Bank v. 212 Iowa 237 assignee.” to the N.W. 319 effect, Briley To the same see Madrid v. In Bartlett Co., v. Iowa State Ins. 77 388, Improvement Company, 255 Iowa 122 86, 41 policy N.W. 579 (1889) Am.Jur.2d, Assign- (1963); N.W.2d 824 6 provision, “Loss, pay- contained any, if 82, 263-64; Assign- pp. ments 6 § C.J.S. mortgagees able to as their interest 52,pp. ments 1096-1097. § appear.” We the mortgagee held could maintain an against action the insurance vigorously contends a Defendant company, the court there stating, “There personal is a of insurance was no mortgage upon other property, its consent and assignable not without and she was the real party in interest.” right because it Hicks had no to intervene This rule was followed in Christenson v. him nor consented neither contracted with Fidelity Co., 77, Ins. 117 Iowa 90 495 N.W. any rights policy. A acquire he (1902), prevails generally. 55 Am. reasoning basic flaw in this results from Jur.2d, 278, Mortgages pp. 367-68. § recognize that defendant’s failure

In the judice case sub the policy assignment con- followed the Proesch-to-Hicks essentially tained the same language quoted the loss incurred windstorm. After

805 “agreement” (sales contract). of the assignment an not issue became subject proceeds which are in ac- insurance assignment aof chose policy, but damage pay- litigation of this resulted from compel defendant’s right to tion—the the “land with above described.” proceeds accord [real estate] insurance ment of say by recog- To action asserted chose owner-vendor interest assigned Hicks was under the broad in the con- policy and defined nized in the language assignment Proesch-Hicks tract. hypertechnical. is Da- found in point language At this Mut. Fire County v. Bremer Farmers’ vis pertinent bearing Further 331, Ass’n, 326, 134 N.W. Ins. assignment (and the effect of this still 860, relevant: particularly is (1912) 862 relying mortgagee on the is the analogy) general rule an note assignment (Code, statutory provisions “The §§ mortgage carries with it such 539.1, 539.2, The 3044,3046) [now §§ assignor respect existed declaring that all instruments Code], ancillary policy, the con without pay promises to anoth maker sent of the insurer. Central Union Bank er, sum negotiability, without words Co., v. F. New York Underwriters’ Ins. 52 assignable' indorsement money, are denied, (4 1931), 2d 823 cert. Cir. 290 U.S. thereon, writing, even other (1933); 54 585 S.Ct. 78 L.Ed. instrument by the though terms Security Reinhardt v. Ins. Co. of New Ha prohibited, have been assignment its ven, Conn., 310 Ill.App. N.E.2d 38 applied of action sustain (1941); Mutual Andrello v. Nationwide takes assignee of fire who N.Y.S.2d Fire Ins. 29 A.D.2d loss, not assignment after thereof (1968); 427(b) provisions withstanding 50; (1), p. v. see Fire Office Sun assignment. against Walters Wash Fraser, Kan.App. 63, 47 P. 327 Iowa, 404, Am.Dec. ington Ins. Burkhardt, Whiting Mass. 451; Co., 34 National Ins. Mershon v. (1901); Key Ins. N.E. v. Continental Iowa, is in ac a conclusion 87. Such *7 ; Co., 344, 162 Mo.App. 101 (1903) 74 S.W. of the reason and policy cordance with Rockingham Breeyear Farmers’ Mut. v. statute; for, after the loss has oc Co., 445, 52 A. 860 Fire Ins. N.H. 71 curred, obligation the insurer un of (1902). pay money, policy der is a of to sum may right properly be to general is rule but one branch The above transferred, although amount in 6 of broader doctrine summarized a still yet definitely not be ascertained.” 121, at Assignments pp. 302- Am.Jur.2d, § 03: effect, see To same Time Finance Cor Co., 23

poration Trucking v. Utah Johnson ordinarily assignment aof debt “The 115, (1969); Apple 2d P.2d 873 5A remedy every all liens and carries with it man, 3458, at Insurance Law & Practice § sub- incidental to the that is pp. (1970); 16 406-407 Couch on Insur that assignment and ject matter pp. 2d, 63:40, (1966). ance 682-84 § available, used, or made could have been indemnity assignor as a means of right to The interest and of Proesch they though are payment, even compel application proceeds in of insurance the instrument of specifically named in his with accordance with though the as- assignment, and even which, in sales contract was a chose action ignorant of their the time was signee at language assignment, in “ac- existence.” concerning agreement and the crued said 891, Contracts, pp. ques- land above described.” The in See also Corbin § subject specific provisions tion was the (1951). 580-583 action, assignment prejudice this The rule that the a intervene without respect rights party to insure to the to containing covenant mortgage thereby generated. imple right proceeds the issues to creates recognized juris encouraging in this mented our intervention assignee has been permitting assignee litigation a direct in order to determine all diction multiplicity in one action and avoid against the insurer. cause of action 75, Procedure; suits. Rule Rules of Civil Capital In Fred Miller Co. Brewing 496, Wharff, 56 N. Wharff 244 Iowa Co., 590, Ill Iowa 82 N.W. Ins. Further, rule (1952). general W.2d Maier owned the one (1900) Iowa,and grants elsewhere interve an loss, sured, pay- any, and the if made appeal nor a judgment an adverse Miller, mortgagee, as his in- able to Fred joined not he whether or is one of the appear. mortgage might The had terest original Estate, parties.. In re Anderson’s plaintiff assigned been to the before the 670, 125 Iowa N.W. 510 assignee plaintiff fire. It was held the Am.Jur.2d, Appeal 175, p. and Error at § “ * * * action, might maintain the 686; Appeal pp. & Error § C.J.S. even had the joined, insured been under 572-574. allegations petition, confessed true, IV. Defendant the default be must asserts Hicks’ claim period necessarily barred the 12-month have been this contractual awarded to plaintiff. Why? adopt position limitation. stipu- had To Because both require would us applied.” repudiate lated the loss should well-rea- be so See long Mahoney also soned case law v. State 133 Iowa established Ins. 570, 110N.W. 1041 state. (1907). An identical situation confronted this contrary Unless intention is court in Stevens v. Citizens’ Ins. inferable, manifest or assignment ordi 29 N.W. 769 This court narily carries with it all remedies rights, said, 664-665, there 69 Iowa at 29 N.W. at and benefits which are incidental to the 771-772: assigned.

thing 6 Am.Jur.2d, Assignments p. 301; at Assignments § policy in “The suit is a contract be- p. approval 1142 (cited with pro- plaintiff tween defendant. Klink, Fischer v. however, vision, damage the loss or 695 (1944)). Under the mortgagee analo machinery paid on the should therefore, gy, assignment the conceded appear, might intervenor his interest Hicks *8 Proesch-Kintzel sales was for the intervenor’s benefit. Sec- transferred Proesch’s right the to insur tion 2544 rule of the [now R.C.P.] proceeds, ance even without the other as provides party that Code a whom with signing language incorporated in the in or in name whose a contract is for made addition, strument. we hold under these the may benefit another sue in his circumstances those other assignment pro own name without joining him the with visions were broad enough to include this party prose- for whose is benefit the suit right accrued of action and move it from provision very cuted. Under this is it to Proesch Hicks. clear, think, plaintiff we that had the prosecute to the action in his own

Holding as we do Hicks acquired by as- recovery name for the of the whole signment Proesch, the we now amount of the loss. The court possessed issues, confront other procedural both power, upon ample showing a substantive, of interve- by advanced defendant. interest, by plaintiff nor’s either or de- Turning procedural III. fendant, to enter such in the aspects, parties these stipulated might Hicks protected case as would have fully the rule, parties. presence If the could to all the Stevens intervene establish rights of necessary his interest had been deemed after the contractual limitation of intervenor had period expired. the controversy, the to determination power, had the under section the court precluded V. Nor is Hicks from in. brought him to to order intervening because neither he nor Proesch plaintiff for was by action instituted provision proof filed of loss. The loss; and, as recovery the of the whole states, by relied on defendant “The insured think, in his properly brought we was give notice this shall immediate written to intervenor, however, had own name. The protect loss any Association of the [and] litigation, and in the interest matter of * * damage from further 2683, to right, he section had the under again position equating But vendor’s sec- party become a to the action. That mortgagee, following that of a person has provides 'any tion that who actually “If in- clause controls: in litigation in the in an interest matter proof fails render of loss sured to such parties of either of the to success notice, mortgagee, upon proof render shall both, action, a against become or specified of loss in the form herein within party persons, action other to an between sixty days (60) thereafter by joining plaintiff either in claim- ing sought petition, is or what does contend Kintzel Defendant uniting resisting with the defendant proof prompt to of loss. There failed file plaintiff, or claim demand- gave the defendant ever 'is no indication ing anything adversely plain- to both the to to Hicks contractual notice Proesch defendant, tiff and either before after proof. This defense'is without file such cause, joined issue been has merit. before the trial commences.’ defendant contends it was Lastly, VI. provision “It that inter- was under this no one under obligated pay party a He venor became suit. a suffered the claimants neither of because action, did be- not institute new but court, feeling com- trial loss.” The “direct party pending simply came one as our perceived what pelled to follow Nor plaintiff between and defendant. Hawkeye Ins. holding in Davidson independent of any did he make demand reluc- (1887), N.W. 514 them, litigation between matter theory. De- adopted tantly defendant’s only but that the for asked phrase “di- equates the ingeniously fendant which, portion the loss terms a current reduction loss” with rect on, payable contract sued worth, in a col- ascertained claimant’s net him, poli- should be for his benefit. The speculative inquiry. entirely lateral provides cy action the recov- “Direct, maintainable, ery any way, claim shall be defined in that is not loss” sense, policy. unless within months aft- commenced other nor Clearly, here- er the of the fire. cases adjudicated occurrence in several defined think, preclude insuring we does not clause of cited. The after becoming party to an tervenor policy states: *9 properly brought action which was with- * * * in- does Association “[T]his time, asserting any in interest that named herein demnify insured in subject-matter he have * * * actual cash extent of action.” loss, time of property at the of the value it exceeding bar, the amount case but In the Kintzel’s action prop- replace repair or cost to incorporated same would timely was filed. It quali- kind and of like policy erty with material subject under matter: claim after such time reasonable Hicks, within a ty damages. under windstorm * * * event for more consequential deprivation loss nor of use or insured, against occupancy than the interest of the building of the * * FIRE, all DIRECT BY LIGHT- come LOSS from such use ”* NING AND apparent phrase It is “direct loss” does By policy endorsement the was extended to meaning by not have the to it ascribed de- by include fendant, provides “direct loss windstorm” and oth- solu- ready-made provisions er named are casualties. These tion to the substantive in this case. issue part standard insurance known exploration Our latest of this law area adopt- as York type. the New was first Royal Corporation was in Zenith v. Citi- York, ed New thereafter Iowa and Publications, Inc., zens N.W.2d numerous other states. 515.138 Section (Iowa 1970), relating personal proper- ato Code; Enterprises, (Sixth), The Olson ty sales is the contract. Pertinent here Inc. Citizens J., Insurance of N. Co. regarding rule laid in that down case 141, (1963). 121 N.W.2d 510 parties, including intention of the the in- surer, as to The who should bear the loss. “Direct phrase loss” as ap court said in at 346: pears above, policy, does not indicate impact immediate on the contents of situation, buy- seller-buyer “In the if the wallet, claimant’s implied by defendant’s er is to obtain insurance at his own ex- argument adopted by trial court. “Di pense protection, for the seller’s and does rect loss fire” in a fire insurance so, plainly that insurer intended is generally synonymous proximate among parties.” bear the loss as the three cause. Farmers Mutual Fire Insurance actually The issue turns on whether we Co. McMillan, 125, 217 Tenn. 395 S.W. “loss,” apply, are to in determination of 2d The term “direct loss the New York rule or the rule. Wisconsin windstorm” merely damage means due New York rule was formulated the strength or Abady force the wind. Foley v. Manufacturers’ Fire & Builders’ v. Hanover Fire Company, Insurance Co., 131, (1897), Ins. 152 N.Y. 46 N.E. 318 F.2d 362 (4 Cir. 1959); Commercial Carv interpreting type policy the New York ing Co. v. Manhattan Fire & M. Ins. rule, adopted recog while Iowa. 191 F.Supp. 753 Ly- (M.D.N.C.1961); see nizing a fire insurance is an indem dick Company v. Insurance of North Amer contract, recognizes pre nification also ica, 187 Neb. 187 N.W.2d 602 (1971). computed according miums are to the value and the risk involved with In Lampesis v. Travelers Insurance remedies, knowledge out of collateral so Company, 101 N.H. 143 A.2d 104 long be denied will not so (1958) the court had before it a claim inter the insured has valuable insurable brought by purchasers. Defend- casualty though est at the time of the even ant insurer contended under the law of post-casualty (including events consumma Hampshire New claimants could have re- executory actual contract) tion of an avoid scinded and thus avoided the loss. The pecuniary A loss to insured. vast ma court held at 101 N.H. 143 A.2d 107: jority jurisdictions the United States occurred, “When the damage adhere to the York Edlin v. the value New rule. specific of their performance Security (7 F.2d 159 Insurance necessarily was law), diminished. This Illinois cert. de (applying 1959) Cir. clearly a loss to opinion nied, them. In our 361 U.S. L.Ed.2d S.Ct. was also a 'direct loss Company windstorm’ Citizens *10 Foxbilt, within Inc., the meaning (8 1955) the extended cov- v. 226 F.2d 641 Cir. erage endorsement. litiga contrasted with New York rule Iowa (applying loss, an ; indirect such one resulting Vogel Northern Assurance Com- tion) v.

809 rule, actually turned the Wisconsin 1955) (applying now (3 219 409 Cir. pany, F.2d the issue. In Davidson ; on an unrelated Milwaukee Mechanics Pennsylvania law) 74, provided, property such Ala.App. “In case 66 So. Maples, 37 Ins. Co. v. 189, sold, conveyed denied, incumbered shall be 259 Ala. (1953), 159 cert. 2d * * * consent of without the written Hughes v. Potomac (1953); 173 66 So.2d * (cid:127) n his company Columbia, shall 199 Cal. Co. of District Ins. immediately null and 239, thereafter be void.” Cal.Rptr. (1962); 650 App.2d 18 on contract insured sold the The Marine Ins. Co. v. Bos Springfield Fire & buyer possession. The Iowa well, Alw the took (Fla.App. 1964); 167 So.2d 780 recovery, holding this be a denied court Assurance ood v. Union Commercial policy-voiding terms of the 797, sale under the Company, Ga.App. 594 131 S.E.2d 107 provision. appears in this No such clause Highland Park Bank of First Nat. (1963); 147, Co., policy. The concern defendant’s insurance 160 N.E. Boston Ins. 17 Ill.2d v. Davidson, that expressed E. the dicta England New Gas & 2d 802 (1959); a insured otherwise receive the would Corp., Acc. 330 Ass’n v. Ocean & Guar. the 640, obtaining windfall both contract v. (1953); N.E.2d Pink Mass. 116 671 price proceeds, has Smith, 107, 727 281 Mich. 274 N.W. case, Trustees, application instant where under (1937); Board of etc. Cream v. contract Co., 347, provisions of sales N. City Mutual Ins. 255 Minn. 96 purchase proceeds stand as for (1959); v. Home Insur W.2d 690 Wolf byit 27, price and of course reduce would Company, N.J.Super. 100 241 A.2d ance paid. curiam, N. amount per 103 aff’d (L.Div.1968), 28 357, (App.Div.1968); A.2d J.Super. 247 345 provisions, Absent those contract Implement Dealers Mutual Koppinger v. supported result would be same Co., Mea (N.D.1963); Ins. 122 N.W.2d 134 great majority cases rationale Ass’n, Mut. der v. Farmers’ Fire Relief . analogous dealing issue Where Pa Ill, (1931); Dubin 137 Or. 1 P.2d 138 equitable will the vendee as owner bear Amer per Co. v. Co. of North Insurance policy-covered a casual loss occasioned 68, ica, (1949); Home 361 63 85 A.2d Pa. sale, pending completion of the and the ty Dalis, Company Insurance of New York v. insurance, is as to rule silent 71, Aetna (1965); 206 141 Va. S.E.2d 721 pro quite generally followed is Clay Casualty Co. v. Cameron & Sur. policies, ceeds of vendor’s insurance even Products, 269, 151 S.E.2d 305 151 W.Va. did though the vendee not contribute (1966). maintenance, their constitute trust fund rule, ju- followed few Wisconsin benefit of the vendee to credited for the risdictions, grew out of Ramsdell Insur- v. price, theory being purchase 136, America, ance Co. of North 197 Wis. proceeds that the vendor is trustee of rule, 221 also rec- N.W. 654 Paper v. for the vendee. Dubin Co. Insur ognizing fire insurance as an 68, America, Pa. of North 361 63 ance Co. contract, demnification avoids insurer’s Annot., cited (1949); A.2d 85 cases liability subsequent when collateral events 1402, 1406-1412, 4; A.L.R.2d see 64 executory (including consummation of an 1333, Razanskas, 248 N. v. Iowa 85 Gard contract) eventually shielding result Ins. (1957); Hatch Commerce 612 W.2d sustaining any pecuni- insured from actual supple N.W. ary casualty. loss from the mented, (1933); Brady N.W. Welsh, (1925); Iowa N.W. Hawkeye Trial court felt Davidson v. 179, 164 Piper, N.Y.2d N.Y.S. Raplee v. Ins. (1887) 32 N.W. 514 Cribbett, 143 N.E.2d 919 2d reluctantly mandated the result be- reached Executory Contract and the low. lan- While decision contained Estate, guage unnecessarily articulating Real what Sale Ill.B.J. *11 Young, Some argues “Windfall Cover- the security he had left was more ages” Property Liability Insurance, and purchase than price the and balance there- (1960). Colum.L.Rev. 1063 fore Proesch sustained no loss. issue The “loss” must start with the argument Defendant’s is de question, precisely when does one measure by molished logical the the rationale of or ascertain whether a windstorm loss has many decisions from states which follow occurred? the loss to be fixed the Is at rule, the New York which this court now that, casualty time of long so as the in- adopts. argument The of defendant has an sured then has an insurable interest the in- insidious ignores fault it because the reali obligated surer pay becomes to under its ty although post-casualty security the policy, subsequent or can collateral events may debt, be at valued more than the be taken into account in determining the liquidated cannot be extinguish that ob existence of an insurable “loss”? ligation, assuming no default in the sales only contract. In these situations and time policy provides obligation the market, vicissitudes of the real estate dur (with excep is limited defendant certain ing payments, course ulti tions) by “the actual cash value of the mately will determine whether the vendor property at the time of loss.” The insured “ * * * actually out-of-pocket sustains an loss. must give immediate written * * * postulates Defendant in effect this court notice protect loss [and] payments should assume that which property from further damage another, years casualty, made after will “proof insured must render follow, liquidate the vendor’s To interest. of loss” “sixty days within after loss.” require this rationale would us to measure Obviously, the time of “loss” as that term presence loss, or absence not at the is used in policy, refers to the date of time of the windstorm accordance with casualty. Enterprises, We so held in Olson cases, the policy adjudicated and our but at Inc. v. Citizens Insurance J., Co. of N. some unspecified future date. See also Citizens Company Insurance v. Fox

bilt, Inc., 226 F.2d 641 (8 1955) Cir. here, Applicable by analogy, is the (applying Iowa law). general set rule out in 45 919(b)(2), p. 1026: It follows the “loss” we are con mortgagee’s right “The un- cerned with here should be defined and covering der interest, his measured as of the date of damage- payable to him ap- as his interest may causing windstorm. pear, is not reduced or lessened As this presently case is postured we fact that security he has other for the first consider the interest payment mortgage remaining debt Proesch (assigned to Hicks) on the date after the destruction of prop- the insured prior to the windstorm. erty, At that time fact that he could look to the real damaged estate sold as its se- condition is more than suffi- curity purchase for the price. pay debt, case of cient to byor mortgage casualty loss to the buildings improve- fact that mortgagor has restored ments he had recourse to the insurance insured property good condition proceeds. as it inwas before the loss.”

Immediately after (as- windstorm knowledge is common in this state suming defendant’s claim of non-liability many existing and useful farm build- were to be accepted), ings Proesch’s do not enhance the market value of stood diminished the amount of upon they the farm are located. It damage improvements. But defendant knowledge likewise common the market

8H then, Kintzel and contract to Olive sold on estate real city area business some value her, property to Hicks. In func- loss of after be undiminished might loss in the above a windstorm suffered By defend- in use. still structures tional against had Kintzel insured this only amount. liability arises its logic (that ant’s which risk with defendant under in net worth reduction upon an actual “owner,” Proesch a term the ma- named as monetary loss out-of-pocket an immediate correctly with the jority equates standard build- such insureds) destruction designation. mortgagee the con- “loss” to compensable be a would not ings obligated tract at issue Hicks had here. policy. person named in the procure insurance himself to condition in the record is no evidence There purchase agreement his with Kintzel but less paid defendant were this premiums so loss he failed to do at the time the had improvements for the rates usual than the occurred. whole where the policy, in the described liability After Kintzel defendant denied in- legal, equitable and real—was estate— payment brought of the suit to enforce sured, paid and to Kintzel loss to judgment for de- loss. Trial resulted in appear. might their interests Proesch fendant, ap- no which Kintzel took require this not equity do and Justice he made claim did peal. Proesch no nor to the lia- defendant avoid permit to court join against in the suit defendant. At of its by the terms bility plainly assumed time, fact, or act has Proesch word reasoning adopt the strained policy, nor suggested he had an interest buildings de- despite damage to proceeds. its policy, in the there was no loss. scribed got picture into when Hicks purchase The diminution in value purchased from Kintzel on he casualty price security on the date contract, the instrument which he to in Proesch a sufficient “loss” create was did not agreed (but effect perform) against defendant for chose in action against risks, in- loss from certain surance Lampesis v. agreed damages. Cf. Travel- 1967, (approxi- cluding windstorm. In Company, 101 N.H. ers Insurance mately years loss) two after the Proesch was (1958). That chose in action A.2d 104 conveyed property to and as- Hicks assigned to Hicks. signed original to him Proesch-Kintzel year passed, Another and on contract. Upon judgment should be remand en- 14, 1968, March Hicks intervened against tered in of intervenors favor de- then suit pending between Kintzel $9457, applied to be defendant on ad- litigation which ended fendant—the balance, Proesch-Kintzel contract together she did versely Kintzel from which with interest and costs. found appeal. The same Reversed and remanded. too, Hicks, is here against and the case solely appeal. on his concur, LeGRAND, except All Justices entirely RAWLINGS, right of is based Hicks’ JJ., MASON and dis- who sent, REES, J., assignment from Proesch. Al- part. on who takes no purpose though argued it was the main

LeGRAND, (dissenting). assignment to transfer Proesch’s Justice Hicks, policy proceeds interest I dissent from the result reached strangely itself is silent on the instrument majority sequitur proce- and from the non major- subject. this vital Nevertheless the ultimately dure decided parties so ity find the so intended. It does prize belong should to Hicks. $9475.00 assignment from both a silent and a silent duty Proesch owned the real es- Hicks had the record on issue John question, tate in successively which was establish. sat- majority is not stipulated Apparently even submitted *13 The case was rationale, it assignment isfied its as of the conten- with is no mention There facts. even goes say Hicks could assignment of the on to recover now made—that tion is the right to without trouble with that included it. One estate contract real only fact as- policy issued Hicks claims Proesch’s an insurance proceeds from assuming depend signee. hope on am in agree whis would I I Kintzel. I parties language majority would rule for Hicks on meant what the used, theory pled don’t nor him at states. What I neither relied on majority is the conclusion the ma- trial. agree with can somehow divine intention jority beg joining I must deliverance from it absence of facts disclose what self-styled “equitable” such a and I result was. therefore dissent. doubt this take there is no intention I RAWLINGS, JJ., join in MASON

could have been shown doctrine this dissent. Wosepka, 261 of Hamilton v. Yet neither only parties nor Hicks—the who

Proesch on the matter. know—testified On

could there is abundant other side evidence assignment used language

from the parties the conduct of the to negate

any such intention. REISNER, Appellant, John V. already I have mentioned Proesch’s total loss payment; lack of interest or its BOARD RE- OF TRUSTEES OF the FIRE assignment failure to mention TIREMENT SYSTEM the CITY OF OF claim; delay and the of more than two DUBUQUE, Iowa, Appellees. al., et years before any rights Hicks asserted No. 55171. simply is all. This not the conduct of two persons reasonable who are dealing with a Supreme Court of Iowa. company claim an insurance has already Jan. 1973. rejected and very which is at that moment litigation. adds When one to this the extra circumstances that Hicks had de- obligation

faulted on his own to insure the (the and Kintzel only insured) appeal

had failed to from an adverse

judgment, here the result is indeed star-

tling. quarrel have no

I the authorities by majority

cited on law of assign- They just case,

ments. don’t fit this

here nothing there is majori-

ty can groundless base its finding that the

assignment intended to transfer that which

was ignored ignored, incidentally, not — only in the instrument itself but in the

record as majority well. The has magical-

ly supplied the “evidence” which Hicks

failed produce.