225 A.D. 326 | N.Y. App. Div. | 1929
This controversy arises through a fire loss sustained by plaintiff’s assignor, Solomon Raisin, and involves the pro rata
Rather widely divergent claims are asserted by the plaintiff and by defendant as to the latter’s liability under its policy issued to plaintiff’s assignor. It is the plaintiff’s contention that the defendant is liable to pay to plaintiff, of the total loss sustained of $1,692.92, the sum of $740.74. To arrive at this amount the plaintiff adopts a calculation whereby the policies covering the loss are divided into two classes, the first class consisting of the defendant’s policy with a specific amount upon the fixtures and a specific amount upon the stock damaged, and the other class consisting of the blanket policies covering' both stock and fixtures without any specific amount upon the fixtures or any specific amount upon the stock. The plaintiff then ascertains the limit of liability of each class of policies. The limits of liability for all the classes of policies are
Under the so-called Connecticut rule, for which the defendant contends, apportioning the loss between the blanket and specific insurance, the defendant’s proportion of the loss to the stock would be $264.78, and upon the fixtures $121.28, in all $386.06. These amounts are arrived at in the following manner under the Connecticut rule: The total insurance upon the stock was $7,500, of which amount the defendant insured the stock for $2,000, the blanket policy of the Commercial Union for $3,000, and the blanket policy of the Insurance Company of North America for $2,500. Upon this stock there was a conceded loss of $992.92. The defendant’s insurance thereon, being $2,000, was for four-fifteenths of the loss on the stock, and amounted to $264.78; the Commercial Union policy for $3,000 covered six-fiiteenths of the loss, and it was chargeable with $397.17 of such loss; the Insurance Company of North America insured for $2,500 and represented five-fifteenths of the loss, and its share thereof amounted to $390.97. Upon the payment of such loss of $992.92, the blanket policies of the Commercial Union and of the Insurance Company of North America were reduced by $728.14. This left an unexhausted balance of blanket insurance of $4,771.86, to the extent of which the blanket insurance should contribute with the specific insurance of the defendant of $1,000 on the second item in the defendant’s policy covering furniture, fixtures, etc., towards the payment of the loss of $700 on that item. The total insurance, with which the $700 loss on the second item is to be paid, amounts to $5,771.86, and the defendant, therefore, is chargeable with the payment of 1000 /5771.86 of said $700, amounting to $121.28. The share the Commercial Union should bear of said loss on. fixtures is 2603/5771.86, or $315.68; and the share of the Insurance Company of North America therein would be 2169 /5771.86, or $263.04. The Connecticut rule, upon which this above calculation is made, is based upon the theory that a blanket policy is a greater risk than a specific policy, and that, equitably, the greater risk is attended by the larger loss. In issuing a blanket policy covering all the items of property involved, I think it must be held that the underwriter assumes the risk of the full amount of the policy on each and every one of the items covered, and obligates itself to pay on either or all of the items whatever loss may occur until the entire policy is exhausted. As was said in Grollimund v. Germania Fire Ins. Co. (supra): “It is axiomatic that a blanket policy is a greater risk than the specific, and in natural equity the assumption of the greater risk is not inequitably attended by larger loss. * * * In the very nature of the two contracts
We are, therefore, of the opinion that the so-called Connecticut rule should be adopted in apportioning the amounts to be paid by the various companies under said policies, and that the amount which the plaintiff should recover of the defendant upon the two items contained in the defendant’s policy is $386.06.
The plaintiff claims interest upon the amount due from defendant. The parties, however, stipulated that the plaintiff should have judgment against the defendant for the amount which the court should decide was the defendant’s proportion of the loss sustained. We think, therefore, under such stipulation, we are not authorized to include interest in the amount awarded.
Judgment is, therefore, directed in favor of the plaintiff against the defendant for the sum of $386.06, and as stipulated, without costs..
Dowling, P. J., McAvoy, Martin and Proskauer, JJ., concur.
Judgment directed in favor of plaintiff for $386.06, without costs. Settle order on notice.