Norwood v. Resolute Fire Insurance

47 How. Pr. 43 | The Superior Court of New York City | 1874

Sedgwick, J.

The Lorillard Fire Insurance Company insured “ Gage Bros. & Bice against loss or damage by fire to the amount of fifteen thousand dollars,” on specified property. The defendant, The Besolute Fire Insurance Company, made its policy, in which they do “reinsure Lorillard Fire Insurance Company on property of Gage Bros. & Bice, against loss or damage by fire, to the amount of five thousand dollars,” the property being- that specified in the policy made by the Lorillard.

In the policy*of reinsurance there was written the words “ Loss, if any, payable fro rata with the feassured.” The other conditions and agreements of the policy were printed. One of these was, “ Beinsurance in case of loss to be settled in proportion as the sum reinsured shall bear to the whole sum covered by the reinsured company.” The controversy relates to the construction of the written clause, “ Loss, if any, payable jpro rata with the reassured.” Evidently, this is elliptical,-and words must be supplied to find its meaning.

There is no sense in the words, the loss is to be paid with the Lorillard Insurance Company, or the loss is to be paid proportionally with the Lorillard Fire Insurance Company. If you suppose that this obscurely, although by an incorrect use of words, intimates that the Besolute company is to pay the loss, with or proportionally with the Lorillard company, there would then be a reference to' but one loss, viz., that which was the subject of the policy of reinsurance. It is not meant that this should be paid to the Lorillard by the Besolute and Lorillard each paying a certain portion of it. The loss mentioned, it was intended should be payable joro rata with something else than itself.

The parties had in view two losses; one and that which was specified was provided for by the policy of reinsurance. The other, and which must be understood, was provided for by the primitive policy.

“ Loss payable,” is a technical term. The insured suffers a loss ; the insurer, of course, does not pay this loss itself; a sum of money is paid, or agreed to be, as an indemnity for the loss. Policies provide how this sum shall be fixed, and when it is paid, the usage is to say that it pays the loss; although it may be that the sum paid is not, in fact, a compensation for the whole loss. The claim, in question, had in view this character of the two losses payable.

It should be read as follows : The loss under this policy is payable by the Resolute pro rata with the loss, payable by the Lorillard, under the primitive policy. It is the equivalent of saying that the Resolute is bound to indemnify the Lorillard in the same proportion that the Lorillard is bound to indemnify Gage Bros. & Rice.

Other cases which have involved the construction of a clause partly like this, differ from it, because the words in these were “prorata and at the same time.” We have not to consider what would be meant by these latter words; they are not before us. The clause here simply says, that the Lorillard loss is payable pro rata, or proportionally, with the loss payable to Gage Bros. & Rice. The defendants here insist that the stipulation refers to the fact of payment by the Lorillard, that the Resolute is to pay with the Lorillard, i. e., at the same time with, or cotemporaneously. This is supported only by the use of the word “ with; ” if the word “ as ” had been used, or “ in proportion to” instead of “pro rata” “with,” I do not think there would be any doubt that the reference was to the amount of the loss to be paid, and not to the time of its paymeút. It is, however, urged that the amount to be paid by the reinsurers is meant to be fixed bv the fact of payment of the loss, under the primitive policy, and that until the latter is paid there is no way of fixing what the defendants are to pay. The defendant’s counsel contend that the clause means “ that the loss is to be paid by the reassurers in the same ratio as it is paid by the reassured.” We think that the first mistake here is, in not making the clause refer to the two losses that we have noticed.

There is, however, another mistake that more closely concerns the immediate point considered. “ Payable ” is expressive of obligation to pay; “ loss payable ” means loss to be paid, inasmuch as the insurer contracts that the loss shall be paid. The same element is present in the “ loss payable ” by the Lorillard; so that, instead of saying “the same ratio as it is paid” it should be “ in the same ratio as it is to be paid” by the Lorillard, i. e., in the same ratio as the Lorillard is bound to pay the loss of Gage Bros. & Bice.

Therefore, if in case of loss under the primitive policy, the Lorillard should be bound to pay, not the whole of the sum insured, but a per centage of that, then the Besolute is bound, in paying the loss of the Lorillard, to pay the same per cent-age of the sum covered by the policy of reinsurance. This construction sustains the rulings made by the learned judge at the trial, the exceptions to which are the subject of the appeal.

We do not see how any other construction can be maintained. The other only alternative would be to reject the clause altogether as uncertain and vague. It is said that the clause should not be interpreted in this way because such a provision is made in other parts of the policy, which are printed, and this should be held to mean something more, especially as it is in writing. Without going into unnecessary particulars, we say, that from a survey of the whole policy, it does not appear that it has been framed with the purpose of giving to the provisions, separately, a separate meaning, so that each shall do a particular service. The contrary appears. The clause in question is so obscure, that we cannot see that it was meant, intentionally, to vary the general obligation of the reinsurer, that is, to pay the sum which it becomes bound to pay, before the reinsured has made any payment on the policy insured by it. And in its obscurity, if we give it any interpretation, it is one which presents no ambiguity. We could not, therefore, simply because the other parts of the policy make a similar provision, decide that the clause should be made to signify what in fact it does not.

The exceptions should be overruled, and the plaintiff have judgment on the verdict, with costs.

Monell and Crams, JJ., concur.