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April 16, 1959


Appeal, No. 425, Oct. T., 1958, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1955, No. 7754, in case of George Terpeluk et al. v. Insurance Company of North America. Judgment affirmed.*fn1a


Richard W. Hopkins, with him White, Williams & Scott, for appellant.

Max C. Baylinson, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin and Watkins, JJ.

Author: Wright

[ 189 Pa. Super. Page 261]


George Terpeluk and his wife, Anna, instituted suit in assumpsit against the Insurance Company of North America on a policy of fire insurance with extended coverage, alleging a loss by windstorm. The company defended on the grounds (1) that the loss was not caused by windstorm and (2) that plaintiffs had failed to comply with a condition of the policy requiring them to commence suit "within twelve months next after inception of the loss". Defendant's motion for a compulsory non-suit was overruled, and its point for binding instructions was refused. The jury returned a verdict for the plaintiffs, the amount of which is not in dispute. Motions for a new trial and for judgment n.o.v. were overruled, and judgment was entered on the verdict. The defendant has appealed.

The record discloses that the policy in question was written for a period of five years from September 21, 1954, and covered a brick building situated at 2310 Aspen Street in the City of Philadelphia. The policy was admittedly in force on October 15, 1954, when there occurred a violent windstorm to which the weather bureau assigned the name Hurricane Hazel. The Terpeluk theory was that the windstorm caused damage to their building, and it is conceded by appellant that this issue was resolved by the verdict of the jury. On October 19, 1954, the loss was reported to the insurance agent from whom the policy had been procured. The agent sent a notice of the loss to the company, and Terpeluk was subsequently instructed by the agent to obtain an estimate of the cost to repair the damage. Plaintiff's exhibit No. 4, dated October 22, 1954, is an estimate from the contractor in amount of $2800.00. The insurance agent forwarded this estimate

[ 189 Pa. Super. Page 262]

    to the company. On October 29, 1954, the company issued a draft in amount of $28.00, which the Terpeluks refused to accept. A representative of the insurance company, called by the plaintiffs, testified on direct examination that the issuance of this draft was a mistake. He explained that, because of the tremendous number of claims due to Hurricane Hazel, the company was "paying all claims under $300.00 without looking at them", and that the Terpeluk claim had been misread.*fn1 On November 5, 1954, the insurance agent returned this draft to the company. On November 16, 1954, the claim was referred by the company to an independent adjuster. His representatives examined the building on several occasions, and arranged an inspection by a professional builder. On January 28, 1955, the Terpeluks received a notification from the City of Philadelphia that the building was unsafe and should be immediately repaired. This notice was given to the insurance agent and forwarded by him to the company. On February 27, 1955, the Terpeluks forwarded to the company the estimate of another contractor in the amount of $2800.00. The adjusters and representatives of the company thereafter concluded that the damage was not caused by windstorm. In late March or early April, 1955, the Terpeluks were definitely informed that the company would not pay the claim.*fn2 On April 6, 1955, counsel for the Terpeluks

[ 189 Pa. Super. Page 263]

    wrote to the company regarding the matter. On April 12, 1955, he was also definitely informed that the claim would not be paid. Suit was not commenced until November 23, 1955, more than thirteen months after the damage had occurred.

The real issue on this appeal arises from the submission to the jury by the trial judge of the question "whether the defendant, by its conduct, had waived the provision of the policy requiring the commencement of suit by the plaintiff within twelve months after the inception of the loss". Appellant contends that it did not waive, and is not estopped to assert, the standard one-year limitation clause "where liability under the policy was denied six and one-half months before the year expired, and the insured advised the company that suit would be brought and immediately thereafter engaged a lawyer who was also advised more than six months prior to the expiration of the year that the company would not pay the claim". The contention of appellees is that the "insurer misled its insured to ...

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