Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1963, No. 4082, in case of Nick D. Lardas, Constance Lardas, James Lardas et al. v. Underwriters Insurance Company, The Home Insurance Company, National Union Fire Insurance Company et al.
Thomas J. Shorall, with him George Shorall, and Royston, Robb, Leonard, Edgecombe, Miller & Shorall, for appellants.
Stephen W. Graffam, with him White, Jones and Gregg, for appellees.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno dissents. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
Nick D. Lardas, Constance Lardas, James Lardas, Evangeline Lardas, Constantin Lardas and Sophie Lardas (Lardas), are the record owners of a warehouse facility located in West Deer Township, Allegheny
County. This warehouse was used for "dead storage"*fn1 of equipment used in Lardas' painting-contracting business. Underwriters Insurance Company, Home Insurance Company, National Union Fire Insurance Company and Fidelity-Phenix Fire Insurance Company (Insurance Companies) insured the warehouse from loss by fire, the total coverage of all policies totaling $10,500.
On March 4, 1962, a fire of undetermined origin occurred which resulted in a total loss of the warehouse and caused damage in excess of the $10,500 policies' limits. Lardas first learned of the fire on or about July 15, 1962, when a letter was received from the Allegheny County Fire Marshal advising them the warehouse had been "gutted" by fire. Lardas immediately notified the Insurance Companies of the Fire Marshal's letter and their own lack of knowledge of the exact date of the fire.
The Insurance Companies sent an adjuster to investigate the fire and to initiate negotiations with Lardas and their counsel on the question of and the possible amount of liability. Prior to any active negotiations, however, the adjuster insisted upon Lardas executing non-waiver agreements concerning any possible violation of the terms and conditions of the insurance contracts. On the advice of their counsel, Lardas executed such agreements. Active negotiations toward a possible settlement of the claim continued for a few months. Insurance Companies submitted their maximum offer of settlement in October 1962 which Lardas rejected in November 1962; this was the last offer by either party for settlement of the claims.
Upon failure of the Insurance Companies to pay Lardas' claims, the latter on March 28, 1963 -- 1 year,
weeks and 3 days subsequent to March 4, 1962, when the fire occurred*fn2 -- instituted an assumpsit action against the Insurance Companies to recover upon the insurance contracts. This action, instituted in the County Court of Allegheny County, was transferred to the Court of Common Pleas of Allegheny County. The action was tried before a court without a jury and, after a trial, the court ordered the entry of a judgment in favor of the Insurance Companies. Upon ...