Phoenix Insurance v. Lebcher

Moran, J. The clause in the policy sued on which limited the time for bringing suit thereon to within twelve months next after the date of the fire from which the loss occurs, is a valid and binding agreement between the parties, and furnishes a legitimate defense to the company where suit is not brought within the time limited, unless it appears that the company has waived the limitation or has estopped itself from asserting such defense by holding out reasonable hopes of an adjustment and settlementwithout suit, sufficient to actuallydeter the claimant from bringing suit until after the expiration of the time limited. Peoria Marine Ins. Co. v. Whitehall, 25 Ill. 466. The mere pendency of negotiations during a part of the period of limitation, conducted in good faith, with a view to a compromise, is no waiver of the limitation and will not estop the company from setting up the defense. Gooden v. Amoskeag Fire Ins. Co., 20 N. H. 73 ; May on Insurance, sections 485—488, and cases cited. The evidence in this record discloses that about six weeks after the fire the agent of the company and the assured met, and some talk was had about a settlement, which ended in a promise by the agent to communicate with his company, and write to the appellant what he should be authorized to do. The agent promptly informed appellee that he had full authority to arrange the matter, and renewed the offer which he had verbally made to appellee, saying: “ I would like to get up the Phoenix policy, and will give you for it the sum I mentioned in our last conversation on the sidewalk—no more. Ton have also an adjustment clause in your policy which must be taken into account in this connection. I neither affirm nor deny liability in the matter, but. simply desire to get up our policy, and will give you that amount for it less one half adjustment.” The foregoing was written on April 29, 1884, and on May 3, 1884, appellee wrote: “ In reply to your recent letter will say, I will accept your offer of $750 for the Phoenix policy, but will not allow any adjustment fee as you mentioned. I am entitled to more than this amount, and have made this concession simply because I do not care to spend the amount of money necessary to adjust the matter in court, and I do not propose to accept any less than the above amount. If you can settle on this basis, I should be glad to see or hear from you at an early day.” This letter marked the determination of the negotiations and of all efforts to compromise. In view of the peremptory statements contained in Wilder’s last letter and in appellee’s reply, appellee could have no possible reason for supposing that the negotiation would continue. He had written his ultimatum, and requested an early reply, if settlement could be made on the terms which he proposed. He received no reply, and the necessary inference was, after a reasonable time for an answer had passed, that his proposition would not be. accepted. It does not appear from the evidence that anything; whatever was said by either the agent or appellee about the' limitation clause in the policy—all that was said or written was wholly without reference to- such clause, and apparently without its being thought of. The negotiations on the part of the agent to get up the policy were commenced within a short time after the fire, and were wholly dropped by both parties more than nine months before the limitation fixed by the policy had run. This record is barren of evidence which will support the conclusion that there was any agreement or intention on the part of the company to waive the limitation, or that efforts at a compromise between the agent Wilder and the appellee were of such character as to constitute a waiver of it by way of equitable estoppel. No promises or pretenses were made "which eould possibly extend the period of hope that a settlement would be made, beyond a reasonable time for acceptance, by the agent, of appellee’s offer in his last letter. After that time elapsed, the attempted negotiations furnished no longer an excuse for not bringing suit. Were the efforts to compromise continued by the company till the period of limitation had expired, the ease would be different, but they were ended in am le time for action to be brought. Indeed, in view of the evidence, we cars not see that the negotiation actually delayed appellee at all. McFarland v. Peabody Ins. Co., 6 West Va. 430; Blanks v. Ins. Co., 36 La. Ann. 599. The verdict is contrary to the evidence and the judgment must therefore be reversed and the case remanded. Beversed and remanded.