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TROUBLESHOOTING Perky Little Things Download
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The Insurance Society of New York
The subject of insurance forms is such an exceedingly broad one, that it will be impossible in an address such as this to do more than touch upon it in a general way, and direct attention to some of the more important forms, which, although in general use, may possess features which are not fully understood.
The best form, whether viewed from the standpoint of the insurance company or the insured, is a fair form, one which expresses in clear, unambiguous language the mutual intention of the parties, and affords no cause for surprise on the part of either, after a loss has occurred. But the prepara¬ tion of such a form is not always an easy task, and it is right at this point that the ability of the broker and the underwriter come into play.
A distinguished Englishman declared that the English Constitution was the greatest production that had ever been conceived by the brain of man, but it was subjected to the most scathing criticism and violent assaults by Bentham, the great subversive critic of English law. Twenty-five years ago the New York Standard Policy was prepared by the best legal and lay talent in the insurance, world, and the greatest care was taken to present not only a reasonable and fair form of contract between the insurer and the insured, but one which could be easily read and understood.
While no such extravagant claims have been made for the Standard Policy as were made for the “Matchless Con-maximum of loss collection with a minimum of co-insurance or other resistance than a present day broker, he has not yet been discovered.
The ornate policies in use thirty years ago, with no uniformity in conditions, with their classification of hazards which no one could understand and their fine print which few could read, have given way to plainly printed uniform Standard Policies with materially simplified conditions. But the written portion of the insurance contract owing to our commercial and industrial growth, instead of becoming more simple, has taken exactly the opposite direction, and we now have covering under a single policy or set of policies, the entire property of a coal and mining company, the breweries, public service or traction lines of a whole city and the fixed property, rolling stock and common carrier liability of an entire railroad system involving millions of dollars and con¬ taining items numbering into the thousands. This forcibly illustrates the evolution of the policy form since the issue of the first fire insurance contract by an American company one hundred and sixty years ago, in favor of a gentleman bearing the familiar name of John Smith, covering
“500 £ on his dwelling house on the east side of King Street, between Mulberry and Sassafras, 30 feet front, 40 feet deep, brick, 9-inch party walls, three stories in height, plas¬ tered partitions, open newel bracket stairs, pent houses with board ceilings, garrets finished, three stories, painted brick kitchen, two stories in height, 15 feet 9 inches front, 19 feet 6 inches deep, dresser, shelves, wainscot closet fronts, shingling 1-5 worn.”
It will be observed that in the matter of verbiage this primitive form rivals some of our present day household furniture forms and all will agree that this particular dwelling might have been covered just as effectually and identified quite as easily without such an elaborate description.
Any one who has an insurable interest in property should be permitted to have any form of contract that he is willing to pay for, provided it is not contrary to law or against public policy, and judging from a contract of insurance issued by a certain office not long ago the insuring public apparently has no difficulty in securing any kind of a policy it may desire at any price it may be willing to pay. The contract in ques¬ tion was one for £20,000, covering stock against loss from any cause, except theft on the part of employes, anywhere in the Western Hemisphere, on land or water, without any con¬ ditions, restrictions or limitations whatsoever, written at less than one-half the Exchange rate in the insured’s place of business. An insurance agent upon being asked whether he thought it was good, said that if the company was anywhere near as good as the form, it was all that could be desired, but vouchsafed the opinion that it looked altogether too good to be good.
In these days we frequently find concentrated within the walls of a single structure one set of fire insurance policies covering on building, another on leasehold interest, another on rents or rental value—and in addition to this, policies for various tenants covering stock, fixtures, improvements, profits and use and occupancy, subject to the 100% average or co-insurance clause, to say nothing of steam boiler, casualty and liability insurance, thereby entirely eliminating the ele¬ ment of personal risk on the part of the owners, and produc¬ ing a situation which will account in some measure for the 17,000 annual fire alarms and $15,000,000 fire loss in New York City; $230,000,000 annual fire loss in the country at large, and for the constantly increasing percentage of cases where there are two or more fires in the same building and two or more claims from the same claimant.
The most common and perhaps least understood phrase found in policies of fire insurance is what is known as the “Commission Clause,” which reads “his own or held by him in trust or on commission or sold but not delivered” or “re¬ moved.” This clause in one form or another has been in use for many years, and it was originally the impression of un¬ derwriters that owing to the personal nature of the insurance contract a policy thus worded would simply cover the prop¬ erty of the insured and his interest in the property of others, such as advances and storage charges, but the courts have disabused their minds of any such narrow interpretation and have placed such a liberal construction upon the words “held in trust” that they may be justly regarded as among the broadest in the insurance language and scarcely less com¬ prehensive than the familiar term “for account of whom it may concern”; in fact, the principles controlling one phrase are similar to those governing the other.
It has been held that whether a merchant or bailee has assumed responsibility, or agreed to keep the property cov¬ ered or whether he is legally liable or not, if his policies contain the words “held in trust,” the owner may, after a fire, by merely ratifying the insurance of the bailee, appro¬ priate that for which he paid nothing whatever and may file proofs and bring suit in his own name against the bailee’s insurers. Nor is this all, for in some jurisdictions, if the bailee fails to include the loss on property of the bailor in his claim against his insurers, or if he does include it and the amount of insurance collectible is less than the total loss, the bailee may not first reimburse himself for the loss on his own goods and hold the balance in trust for the owners, but must prorate the amount actually collected with those own¬ ers who may have adopted the insurance, although, if he has a lien on any of the goods for charges or advances, this may be deducted from the proportion of insurance money due such owners The phrase “for account of whom it may concern” was formerly confined almost entirely to marine insurance, but in recent years there has been an increasing tendency to intro¬ duce it into policies of fire insurance.
All authorities are agreed that the interests protected by a policy containing these words must have been within the contemplation of him who took out the policy at the time it was issued. It is not necessary that he should have in¬ tended it for the benefit of some then known and particular individuals, but it would include such classes of persons as were intended to be included and who these were may be shown by parol. The owners or others intended to be cov¬ ered may ratify the insurance after a loss and take the bene¬ fit of it, though ignorant of its existence at the time of the issuance of the policy, just the same as under the term “held in trust.”
The words “for account of whom it may concern” are not limited in their protection to those persons who were concerned at the time the insurance was taken out, but will protect those having an insurable interest and who are con¬ cerned at the time when the loss occurs. They will cover the interest of a subsequent purchaser of a part or the whole of the property and supersede the alienation clause of the policy (U. S. S. C.), Hagan and Martin vs. Scottish Union and National Ins. Co., 32 Ins. Law Journal, p. 47; 186 U. S. 423).
A contract of insurance written in the name of “John Doe & Co. for account of whom it may concern” should contain a clause reading “Loss, if any, to be adjusted with and payable to John Doe & Co.,” not “loss, if any, payable to them” or “loss, if any, payable to the assured,” as forms sometimes read.
Policies are frequently written in the name of a bailee covering “On merchandise, his own and on the property of others for which he is responsible,” or “for which he may be liable”—and it has been held that’the effect of these words is to limit the liability of the insurer to the loss on the assured’s own goods and to his legal liability for loss on goods belonging to others, but the words “for which they are or may be liable” have been passed upon by the Supreme Court of Illinois, and they have been given an entirely dif¬ ferent interpretation. That tribunal in the case of The Home Insurance Company vs. Peoria & Pekin Union Railway Co. (28 Insurance Law Journal, p. 289; 178 Ills. 64) decided that the words quoted were merely descriptive of the cars to be insured; that the word “liable” as used in the policy did not signify a perfected or fixed legal liability, but rather a con¬ dition out of which a legal liability might arise.
As illustrative of its position the court said that an assignor of a negotiable note may, with no incorrectness of speech, be said to be liable upon his assignment obligation is not an absolute fixed legal liability but is con¬ tingent upon the financial condition of the maker; and ac¬ cordingly held that the insurance company was liable for loss on all the cars in the possession of the railroad company, notwithstanding the fact that the latter was not legally liable to the owners.
In view of the exceedingly broad construction which the courts have placed upon the time honored and familiar phrases to which reference has been made, it is important for the party insured, whether it be a railroad or other transportation company, a warehouseman, a laundryman, a tailor, a com¬ mission merchant or other bailee, to determine before the fire whether he desires the insurance to be so broad in its cover as to embrace not only his own property and interest, but also the property of everybody else which may happen to be in his custody; if so, he should be careful to insure for a sufficiently large amount to meet all possible co-insurance conditions,, and if he wishes to make sure of being fully reimbursed for his own loss, his only safe course is to insure for the full value of all the property in his possession.
At this point the inquiry which naturally presents itself is, how should a policy be written if a merchant, warehouse¬ man or other bailee desires to protect his own interest but not the interest of any one else? The following form is suggested: “On merchandise his own, and on his interest in and on his legal liability for property held by him in trust or on commission or on joint account with others, or sold but not removed, or on storage or for repairs, while con¬ tained, etc.” This will, it is believed, limit the operation of co-insurance conditions and at the same time prevent the owners from adopting, appropriating or helping themselves to the bailee’s insurance, for which they pay nothing and to which they are not equitably entitled.
Many of the household furniture forms now in use, in addition to embracing almost every conceivable kind of per¬ sonal property except that specifically prohibited by the pol¬ icy conditions, are also made to cover similar property be¬ longing to any member of the family or household, visitors, guests and servants.
This form would seem to indicate considerable ingenu¬ ity on the part of the broker, broad liberality on the part of the insurance company and commendable generosity on the part of the insured, and the latter would probably feel more than compensated by being able to reimburse his guest for any fire damage he might sustain while enjoying his hospi¬ tality, but the amount of insurance carried under such a form should anticipate the possibility of his having a number of guests at one time and a corresponding increase in the value at risk.
It must be borne in mind that in localities where co- insurance conditions prevail the value of property belonging