Hartford Accident & Indemnity Co. v. Neal ( 1970 )

STEPHENSON, Justice

(dissenting).

I respectfully disagree. I would remand this case for a second trial. Even though plaintiff may not have established, as a matter of law, waiver of the necessity of filing a proof of loss, a fact issue was raised, and in the interest of justice, the case should be remanded. Scott v. Liebman, 404 S.W.2d 288 (Tex.Sup., 1966); Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951).

“It is well settled that provisions of an insurance policy regarding notice and proof of loss are for the benefit of the insurer and may be waived by it.” Walters v. Century Lloyds Ins. Co., 154 Tex. 30, 273 S.W.2d 66, 69 (1954). Citing Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S. W.2d 43 (1947) and Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470 (1937).

The test as to whether or not waiver exists was given to us by our Supreme Court many years ago in Scottish Union & Nat. Ins. Co. v. Clancy, 83 Tex. 113, 18 S.W. 439, 440-441 (1892), as follows:

“It is a well-known principle in this class of cases that the acts relied on as constituting a waiver should be such as are reasonably calculated to make the assured believe that a compliance on his part with the stipulations providing the mode of proof of loss, and regulating the appraisement of the damage done, is not desired, and that it would be of no effect if observed by him.”

See Texas Farm Bureau Mut. Ins. Co. v. Carnes, 416 S.W.2d 863 (Tex.Civ.App.—Corpus Christi, 1967, error ref. n. r. e.).

It is obvious the issue was not fully developed, as shown by the majority opinion. In addition to the testimony there quoted, evidence given by plaintiff showed he learned the day following the fire that defendant contended the back part of the property was not covered by the insurance, policy. Further exploring along that line may reveal a denial of liability at that time. The quoted evidence shows “after sometime” defendant denied liability, which may or may not have been within the ninety-one-day period prescribed by the policy. The law is clear in this state that a denial of liability by an insurance company within the ninety-one-day period provided for filing a proof of loss constitutes a waiver of such necessity. Austin Building Co. v. National Union Fire Ins. Co., 403 S.W.2d 499 (Tex.Civ.App.—Dallas, 1966, error ref. n. r. e.) ; Aetna Casualty & Surety Co. v. Clark, 427 S.W.2d 649 (Tex.Civ.App.—Dallas, 1968, no writ); Knoff v. United States Fidelity & Guaranty Co., 447 S.W.2d 497 (Tex.Civ. App.—Houston, 1st, 1969, no writ).

Defendant has never denied that there was coverage upon the front building which was partially destroyed by the fire. Justice would not be served if, in fact, defendant’s actions are found to constitute waiver of the necessity to file a proof of loss.