Reynolds v. Allstate Insurance

123 Mich. App. 488 (1983) 332 N.W.2d 583

REYNOLDS
v.
ALLSTATE INSURANCE COMPANY

Docket No. 59362.

Michigan Court of Appeals.

Decided February 24, 1983.

Turner & Turner, P.C. (by Donald A. Turner and Gary L. Kohut), for plaintiff.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by Roger A. Smith), for defendant on appeal.

Before: R.M. MAHER, P.J., and BRONSON and CYNAR, JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's order granting defendant's motion for summary judgment.

Plaintiff owned a house insured under a standard homeowners' policy issued by defendant. The policy contained the language mandated by MCL 500.2832; MSA 24.12832, to the following effect:

"The insured shall give immediate written notice to this Company of any loss, * * * furnish a complete inventory of the destroyed, damaged and undamaged property, showing in detail quantities, costs, actual cash value and amount of loss claimed; and within sixty days after the loss, unless such time is extended in writing by this Company, the Insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss * * *

* * *

"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss." (Emphasis added.)

On February 8, 1980, plaintiff's house suffered severe water damage. Plaintiff testified at the evidentiary hearing held in this case that he notified defendant of this loss by telephone one or two days later. Defendant, however, had no record of this call. Plaintiff filed a written claim of loss in September, 1980.

In November, 1980, plaintiff brought this action to recover under his policy. Subsequently, the defendant moved for summary judgment on the ground that plaintiff had failed to file written proof of loss within 60 days following the loss.

The court, we conclude, properly granted defendant's motion. The cases cited by defendant and the trial court, Fenton v National Fire Ins Co, 235 Mich. 147; 209 N.W. 42 (1926), Helmer v Dearborn National Ins Co, 319 Mich. 696; 30 NW2d 399 (1948), Dailey v Mid-States Ins Co, 321 Mich. 438; 32 NW2d 698 (1948), and Peck v National Liberty Ins Co, 224 Mich. 385; 194 N.W. 973 (1923), remain dispositive in situations such as the present one, where the policy includes standard language contained in MCL 500.2832; MSA 24.12832 requiring a written proof of loss within 60 days of the loss. Regardless of whether plaintiff provided oral (telephone) notification of his loss, his claim is precluded by his undisputed failure to file any written proof of loss until seven months had passed. See lines 157 through 160 of MCL 500.2832; MSA 24.12832, providing that there can be no recovery on any claim unless all of the policy requirements (including the timely filing of a written proof of loss) have been complied with.

All of the cases relied upon by plaintiff are distinguishable. None of those cases involved situations in which the policy contained an explicit time requirement for the filing of a written proof of loss. Compare, for example, Kermans v Pendleton, 62 Mich. App. 576; 233 NW2d 658 (1975) (policy required notice of loss "as soon as practicable"). Cf., Kennedy v Dashner, 319 Mich. 491; 30 NW2d 46 (1947); Motor State Ins Co v Benton, 35 Mich. App. 287; 192 NW2d 385 (1971), lv den 386 Mich. 758 (1971).

We also agree with the trial court that defendant did not waive compliance with the proof of loss requirement even if, as plaintiff contends, one of defendant's representatives denied his claim during the course of a phone call. The fact remains undisputed that there has been no written waiver of any policy provision, as is required by MCL 500.2832; MSA 24.12832 (lines 49-55).

Affirmed.