No. 699 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at G.D. 78-16741.
Alfred S. Pelaez, Pittsburgh, for appellant.
Charles Kirshner, Pittsburgh, for appellee.
Cavanaugh, Hoffman and Van der Voort, JJ.
Appellant contends that appellee, American Motorists Insurance Company, was not entitled to summary judgment because it: (1) failed to prove that it was prejudiced by appellant's commencement of this action beyond the policy period of limitation; and (2) is estopped from asserting the policy limitation requiring suit to be commenced within one
year of the loss.*fn1 We disagree and, accordingly, affirm the order of the lower court.
Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.Civ.P. 1035(b). Summary judgment can only be granted in the clearest of cases. See, e. g., Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). Additionally, the evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976). Viewed according to these standards, the facts may be summarized as follows.
On August 31, 1976, a fire damaged appellant's dwelling and its contents which were insured by appellee. Although appellant promptly notified appellee of the fire, appellant failed to provide the requisite proof of loss within the sixty day period mandated by the policy. On March 7, 1977, appellee's adjuster granted appellant an additional fifteen days to provide the proof of loss. Appellant's attorney promptly requested thirty additional days to submit the required proofs. Appellant's counsel finally submitted a list of destroyed property on March 10, 1978, approximately twenty months after the fire. Because the parties were unable to settle the claim, appellant commenced this action in assumpsit on July 13, 1978, nearly twenty-three months after the loss. Appellee's answer and its subsequent motion for summary judgment asserted that appellant failed to comply with two separate policy provisions which required
timely action of appellant, namely: (1) to provide proof of loss within sixty days of the loss;*fn2 and (2) to commence suit within one year of the loss.*fn3 Appellant responded that appellee had not demonstrated that it was prejudiced by appellant's untimely actions, and, alternatively, that appellee had waived or was estopped from asserting the policy provisions. The lower court en banc concluded that appellee could not rely upon the proof of loss condition because it had failed to prove that it was prejudiced by appellant's tardy proof of loss. However, the lower court held additionally that because the one-year suit limitation clause was valid and enforceable, appellant's failure to file suit on or before August 31, 1977 justified summary judgment for appellee. This appeal followed.
Appellant contends that, as a matter of law, appellee may not rely upon the one-year suit limitation clause for it failed to demonstrate prejudice resulting from appellant's untimely suit. Policy provisions limiting an insured's right to sue his insurer have been upheld uniformly by ...