Flint Wholesale Jewelers, Inc. v. United States Fidelity & Guaranty Co.

Per Curiam.

During 1967, the plaintiff purchased insurance policies from both defendants to protect against losses occasioned by theft or other casualties. These policies covered physical damage to the building as well as losses of inventory. The policies provide that actions on them shall be commenced within one year of the date of the discovery of the loss.

On December 23, 1967, a burglary occurred on the plaintiff’s business premises. Plaintiff informed the defendant companies of the burglary and an investigation was begun by defendants’ agent, the G-eneral Adjustment Bureau.

Although there is some disagreement as to whether the claims adjuster told the plaintiff that the defendants would pay for the repair of a hole in the roof through which the burglars allegedly gained entry, he did advise the plaintiff to cover the hole. The adjuster also requested documentation of the loss and a physical inventory of the items purported to be stolen.

On April 4, 1968, defendants retained a firm of independent auditors to ascertain the exact extent of the plaintiff’s loss. The auditors reported on June 11, 1968, that the records of the plaintiff failed to indicate any loss of inventory. Relying on this report, an adjuster representing the defendants notified the plaintiff on July 25, 1968, that the defendants would neither accept nor make payment on the alleged burglary loss of inventory. They did, however, acknowledge liability for damages to the physical property other than inventory.

A letter was sent to the plaintiff on August 21, 1968, confirming the adjuster’s denial of the loss because of the failure of the plaintiff’s stock records to show a loss.

On May 13, 1969, the plaintiff instituted suit against the defendants on their respective contracts. In response, defendants moved for dismissal on the basis that the one-year contractual limitation for bringing suit had not been complied with. The trial court treated these motions as motions for accelerated judgment and granted them under the provisions of GCR 1963, 116.1(5) and the law as stated in Bashans v. Metro Mutual Insurance Company (1963), 369 Mich 141.

We affirm. The trial court was correct in holding that as a matter of law there was no waiver of the contract limitation on actions. Plaintiff had from August 21, 1968 to December 23, 1968, within which to file its action in accordance with the terms of the contracts. This is a reasonable time. Law v. The New England Mutual Accident Association (1892), 94 Mich 266.

Affirmed with costs to defendants.