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FOOTE v. MARYLAND CASUALTY COMPANY (11/28/62)

November 28, 1962

FOOTE, APPELLANT,
v.
MARYLAND CASUALTY COMPANY, APPELLANT.



Appeals, Nos. 95 and 177, March T., 1962, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1957, No. 1531, in case of Harriet E. Foote v. Maryland Casualty Company. Judgment modified and affirmed.

COUNSEL

Leonidas A. Allen, for plaintiff.

Lee L. Leonard, for defendant.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Keim, JJ.

Author: Keim

[ 409 Pa. Page 308]

OPINION BY MR. JUSTICE KEIM

This case is before the Court on two appeals, the first at No. 95 March Term, 1962, wherein the defendant complains of the trial court having modified the verdict by increasing it from $33,732.50 to $39,564.40, and allowing no credit for moneys already paid by the defendant, which is contrary to a stipulation entered into by the parties before the trial of this case. The second appeal is at No. 177 March Term, 1962, wherein

[ 409 Pa. Page 309]

    the plaintiff complains of the rejection of her motion for a new trial. It is to be noted that both appeals are from the Court of Common Pleas of Allegheny County, Pennsylvania, docketed at No. 1531 October Term, 1957.

Harriet E. Foote, the plaintiff in the lower court, was the owner of a four level split level home of brick veneer construction, which was built for her by her husband, James W. Foote, a contractor, and they occupied the dwelling from March 26, 1956 until a fire on January 1, 1957 did considerable damage to the premises. The home was intended as a model home and was advertised for sale some months after completion. The defendant's policy was issued to plaintiff on November 5, 1956. The plaintiff was insured by the defendant company, which provided coverage against fire loss as follows: "Dwelling house, $45,000.00; Contents, $18,000.00; and, additional living expenses, $9,000.00." The plaintiff filed proof of loss forms wherein she demanded the full amount of each type coverage provided under such policy.

In its amended answer, the defendant insurance company admitted liability in the amount of the highest estimate it received for repair of the premises, in the amount of $27,831.90, which it tendered in settlement for the claim for building damage. In view of this admission, the plaintiff entered judgment against the defendant in the sum of $27,831.90.

During the period of negotiation between plaintiff and defendant, judgments had been entered against plaintiff by her two mortgagees, both of whom proceeded under their respective judgments with attachment execution of all money owing under subject policy, and as a result, the defendant paid the sum of $26,550.18 to First Federal Savings and Loan Association of ...


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