YOUNG‘S MARKET COMPANY, Plaintiff and Appellant, v. AMERICAN HOME ASSURANCE COMPANY et al., Defendants and Respondents.
L.A. No. 29726
In Bank
Mar. 12, 1971
309 | 369 S.W.2d 659
Garibaldi & Lane, Abe Mutchnik and Warren J. Lane for Plaintiff and Appellant.
Long & Levit and David C. Bogert for Defendants and Respondents.
OPINION
SULLIVAN, J.--Plaintiff Young‘s Market Company appeals from a judgment declaring that the “sue and labor” clause of an insurance policy issued to it by defendant companies did not entitle it to be reimbursed for legal expenses incurred by it in successfully resisting an action by the State of Texas to confiscate a shipment of its liquor.
Plaintiff is a wholesale liquor dealer. Defendant insurance companies
The policy also contained a “sue and labor” clause which provided: “SUE AND LABOR: In case of actual or imminent loss or damage it shall be lawful and necessary for the Insured, their factors, servants or assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the property insured hereunder, or any part thereof, without prejudice to this insurance; . . . to the charges whereof, the Company will contribute according to its proportion to the sum hereby insured.”
On May 1, 1962, while the policy was in force, plaintiff purchased a cargo of 950 cases of liquor at a distillery in Kentucky and arranged for its shipment to California by truck. The cargo was routed through Texas by the carrier, and while it was passing through that state the truck was stopped for routine inspection by an officer of the highway patrol who inquired as to its contents. The driver, for reasons unexplained by the record, replied that the truck contained redwood furniture. The officer opened the truck in accordance with Texas law and discovered that it in fact contained liquor. Thereupon he asked that the driver produce the written manifest required by Texas law of common carriers transporting liquor.2 Although such a manifest had been delivered to the carrier with the shipment, the driver for some reason did not produce it. The officer, acting pursuant to Texas law,3 then seized the truck and cargo.
The State of Texas sought a hearing in the Supreme Court of Texas, but that court denied the petition.
Plaintiff expended $16,166.37 in legal expenses--a sum stipulated by the parties to be reasonable--in order to secure the release of the liquor in the Texas proceeding. It made demand upon defendants for this sum under the insurance policy issued by them. The claim was rejected by defendants on the ground that the expenses had been incurred in order to prevent a loss threatened by a risk expressly excluded by the policy--i.e., the risk of governmental seizure or confiscation. Plaintiffs thereupon commenced this action.
The trial court entered judgment for defendants. It found as here relevant that the policy in question “did not insure for the perils of ‘confiscation by order of any government or public authority, or risks of contraband or illegal transportation or trade’ “; that “[h]ad plaintiff not secured the release of said cargo of liquor, it would have sustained a loss by reason of confiscation by order of any government or public authority and by reason of contraband or illegal transportation,” a loss specifically excluded from coverage by the policy; that “[p]laintiff cannot recover under the ‘sue and labor’ clause of the policies of insurance sued upon herein unless its expenses were incurred to preserve the insured property from a peril insured
At the outset it is clear--and plaintiff so conceded at oral argument--that the legal expenses in question are not recoverable under the basic “all risks” insuring clause of the policy but are recoverable if at all only under the “sue and labor” clause. The “all risks” insuring clause states that the policy “insures against all risks of physical loss or damage from any cause whatsover. . . .” Manifestly this language contemplates loss of or damage to the insured property6 and is not intended to cover losses such as that here in question. Rather, as all parties recognize and as we shall explain below, it is the specific function of the “sue and labor” clause, which is in essence a separate supplementary insurance agreement,7 to provide whatever coverage exists for expenses sustained in the preservation and protection of the insured property. Thus, the sole question before us is whether the expenses in question are recoverable under the “sue and labor” clause contained in the policy.
The “sue and labor” clause appearing in most marine and inland marine insurance policies is of ancient lineage, its forebears extending back--according to a leading case on the subject--at least into the seventeenth century. (Reliance Insurance Company v. The Escapade (5th Cir. 1960) 280 F.2d 482, 488-489, fn. 11.) Such a clause makes express the duty implied in law on the part of the insured to labor for the recovery and restitution of damaged or detained property (Winter, Marine Insurance (3d ed. 1952) p. 393) and it contemplates a correlative duty of reimbursement separate from and supplementary to the basic insurance contract. “Its purpose is to encourage and bind the assured to take steps to prevent a threatened loss for which the underwriter would be liable if it occurred, and when a loss does occur to take steps to diminish the amount of the loss. Under this clause the assured recovers the whole of the sue and labor expense which he has incurred . . . and without regard to the amount of the loss or whether there has been a loss or whether there is salvage, and even though the underwriter may have paid a total loss
There is, however, a fundamental limitation upon the insurer‘s duty under a “sue and labor” clause to compensate the insured for expenses incurred in the preservation and protection of insured property: the expenses in question must be incurred to preserve the insured property from a peril insured against under the basic policy. “Since an assured has the duty toward his underwriter to exercise the care of a prudent uninsured owner to protect insured property in order to minimize or prevent the loss from the occurrence for which the underwriter would be liable under the policy, the clause undertakes to reimburse the assured for these expenditures which are made primarily for the benefit of the underwriter either to reduce or eliminate a covered loss altogether. . . . [Par.] Taking the analysis through the next step, it is obvious that since the clause is to reimburse the assured for expenses incurred in satisfying the assured‘s duty to the underwriter, there is no such duty where the policy, for one reason or another . . . does not apply. . . . The obligation comes into being only when the action taken is to minimize or prevent a loss for which the underwriter would be liable. If the underwriter would not be liable at all . . . there would be no contractual obligation to repay sue and labor.” (Fn. omitted; italics added.) (Reliance Insurance Company v. The Escapade, supra, 280 F.2d 482, 488-489; see also Home Ins. Co. v. Ciconett (6th Cir. 1950) 179 F.2d 892, 895; White Star S. S. Co. v. North British & Merc. Ins. Co., supra, 48 F.Supp. 808, 812-813; Berns & Koppstein, Inc. v. Orion Insurance Co. (S.D.N.Y. 1959) 170 F.Supp. 707, 719; Id. at 707, 719; 15 Couch on Insurance 2d (1966) § 55:125, pp. 552-553; Vance Insurance (2d ed. 1930) § 255, pp. 864-865.8)
The United States Supreme Court, in an early case dealing with the related matter of recovery under a “sue and labor” clause in the context of a “total loss” policy,9 said of a clause almost identical to that here in-
Applying these principles to the case at bench, we think that the “sue and labor” clause of the subject policy does not entitle plaintiff to be reimbursed for the legal expenses sustained by it in the Texas proceeding.
Clearly if plaintiff had not undertaken the efforts which it did, it would have suffered the loss of its entire cargo of liquor. That loss, however, would not have been covered under the basic “all risks” insuring clause if it had resulted from “seizure or destruction under quarantine or customs regulations, confiscation by order of any government or public authority, or risks of contraband or illegal transportation or trade.” The opinion of the Texas Court of Civil Appeals, which we have summarized above, makes it clear that the issue in the Texas proceeding was whether the plaintiff‘s cargo was being illegally transported within the meaning of article 666-27 of Vernon‘s Texas Penal Code (set forth at fn. 2, ante). If that issue had been determined in favor of the State of Texas and against plaintiff the cargo would have been an “illicit beverage” within the meaning of article 666-42 of the same code (set forth at fn. 3, ante) and would therefore have been contraband subject to confiscation and forfeiture. Thus, because the violation was shown by plaintiff to be a technical one, and the transportation therefore not “illegal,” the Texas court concluded that the cargo was “no longer contraband subject to confiscation.” (Italics added; 369 S.W.2d at p. 664.) Absent plaintiff‘s efforts, however, it would have sustained loss as a direct result of a peril expressly excluded under the terms of the policy.10
Because the peril to which plaintiff‘s property was subject was a peril expressly excluded from coverage under the policy, its efforts to rescue the property from that peril were not undertaken for the benefit of the insurer but rather for its own benefit. Under the settled interpretation of “sue and labor” clauses which we have expounded above, no reimbursement under such a clause is permitted under these circumstances.
The judgment is affirmed.
Wright, C. J., McComb, J., Tobriner, J., and Burke, J., concurred.
MOSK, J.--I dissent.
The Court of Appeal properly reversed the trial court in a well-reasoned analysis by Justice Thompson, concurred in by Presiding Justice Wood and Justice Gustafson. Omitting the factual recitation, I adopt the relevant portion of the Court of Appeal decision ((Cal.App.) 82 Cal.Rptr. 855, 858-859) as my opinion in dissent:
The sole issue on this appeal is the applicability of the exclusionary provision of the endorsement to the insurance policy to the type of loss here involved. Parol evidence was neither offered nor received to aid in interpretation of the policy. We therefore are not bound by the construction given the policy by the trial court but must make our own determination. In making that determination, we are bound by the rule requiring that any uncertainty in the policy be resolved against the insurer and in favor of coverage. (Continental Cas. Co. v. Phoenix Constr. Co., supra, 46 Cal.2d 423 [296 P.2d 801, 57 A.L.R.2d 914]; Gray v. Zurich Insurance Co., 65 Cal.2d 263 (1966) [54 Cal.Rptr. 104, 419 P.2d 168].)
Construction of the policy in the context of appellant‘s claim requires
In the context that the term is used in the policy, no “confiscation” occurred here. Confiscation by government authority does not occur until there has been final action appropriating the property confiscated to the authority taking the action. The concept must be distinguished from that of governmental “seizure” which can be a step preliminary to confiscation pending final action but which is not the same thing as confiscation itself. (11 Couch on Insurance 2d, § 42:468.) The record in the case at bench discloses that the Texas authorities seized but did not confiscate the cargo of liquor. The Texas Court of Appeal in upholding appellant‘s claim that the liquor should be returned to it stated: “The cargo was properly halted and seized by the officers of the State of Texas because of the violation of the law on the part of the driver of the carrier‘s vehicle. But Young‘s Market Company had no control over the transportation, and no complicity in or knowledge of the law violation . . . [I]n our opinion it is not contemplated by the Texas Liquor Control Act that under these circumstances a lawful and innocent owner of property should be deprived of the value thereof by confiscation.”
In the context of the insurance policy which is the subject matter of this litigation, the loss which here occurred was not by reason of risk of contraband. Here again we are aided by the construction given the transaction by the Court of Appeal of the State of Texas. The opinion of that Court declares: “In the instant case the cargo was not contraband. The transportation of the liquor was lawful from its inception and the only violation shown was on the part of a truck driver who was the employee of a common carrier, over whom the owner of the cargo had no control.”
We conclude, also, that in the context of the policy the loss here involved was not a loss from illegal transportation. The seizure out of which the expenses claimed by appellant arose was not the result of a transportation which was illegal. It occurred because the driver in charge of the cargo failed to supply the Texas authorities documentation which had been delivered to the carrier with the cargo. The incidental illegal activity on the part of the driver is not that type of risk which is excluded by the “illegal transportation” clause of the policy. (See 11 Couch on Insurance 2d § 43:209.)
Having determined that the seizure by the Texas authorities was not the result of a risk excluded by the policy, we must conclude that the sum
The judgment should be reversed.
Peters, J., concurred.