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Sutton v. Fire Insurance Exchange

April 26, 1973

SUTTON, APPELLANT AND CROSS-RESPONDENT,
v.
FIRE INSURANCE EXCHANGE, RESPONDENT AND CROSS-APPELLANT



Appeal from Circuit Court, Coos County. James A. Norman, Judge.

Gary D. Rossi, Coos Bay, argued the cause for appellant. With him on the briefs were McInturff, Thom, Collver & Rossi, Coos Bay.

Paul D. Clayton, Eugene, argued the cause for respondent. With him on the brief were Luvaas, Cobb, Richards & Frazer, Eugene.

Denecke, Justice. O'Connell, Chief Justice, and McAllister, Tongue, Howell and Bryson, Justices.

Denecke

Plaintiff brought this action to recover for a burglary loss allegedly covered by a policy issued by the defendant insurer to the plaintiff. The insurer in its answer tendered $2,307.50 in full satisfaction and deposited such sum with the clerk. The jury returned a verdict for plaintiff for $3,037. However, the trial court set the verdict aside and entered judgment for the insurer on the ground that there was no evidence that plaintiff had filed a proof of loss. Plaintiff appeals.

The plaintiff suffered burglary losses on April 8 and April 15. He reported each loss to the insurer the day after it occurred. Lists of the property stolen, which may or may not have been signed, were furnished by plaintiff to the insurance agent. At the request of the insurer's adjuster plaintiff dictated to the adjuster a list of items taken, their estimated value, the circumstances of the losses and details relating to the value of an antique "Kentucky rifle." The adjuster compiled as much of this material as he desired into a form. The plaintiff was not asked to and did not sign the form.

By July plaintiff and the adjuster had agreed upon the value of all the items stolen except the rifle. They continued to disagree on the rifle and plaintiff filed the complaint in this litigation in December 1971.

The policy required the filing of a proof of loss.*fn1 The policy also contained a provision that no action on the policy could be sustained "unless all the requirements of this policy shall have been complied with * * *."*fn2

Plaintiff contends that he substantially complied with the proof of loss requirement and that is sufficient. The trial court instructed the jury that plaintiff

could recover if he substantially complied with the proof of loss requirement. In granting the motion for judgment notwithstanding the verdict, however, the trial court wrote that it was of the opinion that there was insufficient evidence of substantial compliance to make a jury issue.

Substantial, as distinguished from strict, compliance of the proof of loss requirement is all that is required. 14 Couch, Cyclopedia of Insurance Law (2d ed) § 49:390; 3 Richards, Insurance § 547 ...


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