Nadeau v. Insurance Co. of Pennsylvania

Carroll, J. A building owned by the plaintiff was destroyed by fire while the policies of insurance in the standard form pre- ( [464] scribed by St. 1907, c. 576, § 60, were in force. The parties failing to agree on the amount of the loss, the plaintiff’s attorney nominated three men, one to be chosen by the defendants to act as one of the referees under the terms of the policies; Narcisse Tellier was chosen. The defendants in turn named three men of whom the insured was requested to choose one for the same purpose; plaintiff chose Frank T. Eskrigge. The two so chosen, together with a third person to be selected as provided by law, were to constitute a board of referees. Eskrigge testified that he saw Tellier two or three times and with him viewed the plaintiff’s property; that no third referee was selected and no award was made; and that when he notified the attorney who was then acting for the plaintiff that it was necessary to appoint a third referee, he was told “ that they did not have to have a third man because two could agree upon this matter.” The trial judge ordered a verdict for the defendant in each action and reported the cases. The policies provided that in case of loss and a failure of the parties to agree, the amount of such loss should be submitted to three disinterested men, their award to be final as to the amount of loss or damage, and such reference, unless waived by the parties, “ shall be a condition precedent to any right of action in law or equity to recover for such loss.” There was at no time a reference to three disinterested men as required by the policies, and this reference unless waived, was a condition precedent to the plaintiff’s right to recover; Union Institution for Savings v. Phoenix Ins. Co. 196 Mass. 230, 234, 236. Weisman v. Firemen’s Ins. Co. 208 Mass. 577. Hanley v. Ætna Ins. Co. 215 Mass. 425. Second Society of Universalists of Boston v. Royal Ins. Co. Ltd. 221 Mass. 518. We discover no evidence that the defendants waived their rights under the .policies; in fact, the evidence shows that they stood strictly on their legal rights and insisted on compliance with the terms of the policies and by no act or word waived any of their claims. Union Institution for Savings v. Phoenix Ins. Co. supra. Paris v. Hamburg-Bremen Fire Ins. Co. 204 Mass. 90. The St. 1907, c. 576, § 60, provided a remedy in case th,e referees chosen failed to select the third referee within ten days from their appointment. Either of the two referees already chosen, or either of the parties, could make written application to the insurance commissioner to appoint the third referee. No such application [465] was made. The plaintiff failed to take advantage of the provisions of law by which a reference could be had, and by this failure to provide a reference as required by the policies, the conditions precedent were not performed. As the plaintiff cannot recover for the reasons stated, we have not considered the other questions raised at the trial. In each case judgment is to be entered for the defendant. So ordered.