Brooks v. St. Paul Insurance , 264 Pa. Super. 157 ( 1979 )

VAN der VOORT, Judge:

This is an action in assumpsit against plaintiff’s insurer for losses to plaintiff occurring on August 4th or 5th, 1974. The policy was dated in July, 1974, but admittedly not delivered to plaintiff until October or November 1974. The loss was reported to the defendant very promptly after it occurred, but suit was not filed until August 8, 1975, more than one year after the loss. The parties admit that the policy provides that any action against defendant must be commenced within twelve months of the date of loss; but plaintiff contends nevertheless that this provision of the policy does not apply to this case because:

1. The policy was not delivered to plaintiff until October or November 1974;

2. The defendant’s agent, one Rowland, advised plaintiff he was covered for the loss; and

3. Defendant did not deny the claim until January 29, 1975.¹

The above stated circumstances were reasonably established through the pleadings and depositions of plaintiff and the agent Rowland. Defendant filed a motion for summary judgment which the lower court granted. In her opinion, Judge Forer stated that she was “bound by precedent [Lardas v. Underwriters Insurance Co., 426 Pa. 47, 231 A.2d 740 (1967)], and therefore obliged to enter summary judgment in favor of defendant.”

It may be that the eventual result in this case will be in favor of defendant, but we must reverse and remand. We believe that the record is not so clear and undisputed as to permit entry of summary judgment as a matter of law until all testimony has been received and evaluated.

For whatever reason, and the present record does not demonstrate the reason, the plaintiff did not receive the policy until October or November of 1974. In the meanwhile, as he contends, he was assured by the agent Rowland that he was “covered” by his insurance. The claim was not formally denied until January 29, 1975, on the ground that the loss resulted from burglary, which was beyond the coverage of the policy.

Various legal precedents have established the principle that the one year contractual limitation is enforceable, Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa.Super. 287, 361 A.2d 375 (1976); Ercole v. Metropolitan Life Insurance Co., 155 Pa.Super. 549, 39 A.2d 293 (1944); but that it may be avoided, waived, suspended, or what not, if the insurance company does things which induce the insured to delay filing suit, Terpeluk v. I. N. A., 189 Pa.Super. 259, 263, 150 A.2d 558 (1959); Commonwealth v. Transamerica Insurance Co., 462 Pa. 268, 341 A.2d 74 (1975).

Whether the circumstances of this case constitute a waiver avoidance or suspension of the one year contractual provision of the policy should be determined initially by the fact-finder and the court when all relevant testimony has been presented.

In the Lardas case, supra, it may be noted, it was only after a trial without a jury that there was a determination that the insurance companies had not mislead plaintiff, or induced him to refrain from filing suit.

In the case of Terpeluk v. I. N. A., 189 Pa.Super. 259, 150 A.2d 558 (1959), on which plaintiff so strongly relies, the issue of waiver or extension was submitted to a jury which found for plaintiff. The Superior Court commented (189 Pa.Super. page 265, 150 A.2d page 561):

“. . .we agree with the court below that the factual situation . . . required the submission of this controlling issue to the jury.”

See also Diamon v. Penn Mutual Fire Insurance Co., 247 Pa. Super. 534, 372 A.2d 1218 (1977).

The judgment of the lower court is reversed and the case remanded for further proceedings consistent with this Opinion.

SPAETH, J., files a dissenting opinion in which PRICE, J., joins. JACOBS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision in this case.

1 . The substantive basis for the denial is that plaintiffs loss resulted from burglary which does not come within the policy coverage. This issue has not yet been resolved.