Waiver. 71.- Arrest and prosecution for arson sentations and promises by the company specially where it has not been at instance or its agent to forbear or delay bringing of the insurance company, does not fur-suit it operates as a waiver of the liminish any excuse for not commencing tation clause. Eggleston v. Council Bluffs action to recover the insurance within the Ins. Co., 14 Ins. L. J. 365; 65 Iowa, 308. prescribed time. Edson v. Merchants' Mut. Ins. Co., 35 La. Ann. 353. 72. Where the adjuster agreed with insured what the amount of the loss was, and the company proposed to pay that amount on certain conditions which failed, and the company then five months before the expiration of the limited time notified the insured that it would not pay, held, there was no waiver of the limitation clause. Garretson v. Hawkeye Ins. Co., 65 Iowa, 468. 73.- Successive calling for books and papers and prolonging the investigation may operate as evidence of waiver of the limitation clause. Bonnert v. Ins. Co., 129 Pa. 558; 19 Ins. L. J. 79. 73a.- Conduct of a company in requesting assured to furnish further particulars and thereby putting him to loss of time, trouble and expense, operates as a waiver of the limitation of time within which suit must be brought. Consineau v. City of London F. Ins. Co., 15 Ont. 329 (Can.); the court was equally divided and case was dismissed on account of the disagreement of the two sitting judges, Id. 338. 78. If an action is not brought on a policy within the time thereby limited, for the reason that the assured was induced by insurer's conduct to believe that insurer would pay the sum admitted on the adjustment, without suit, then the action may be brought after the expiration of such time. St. Paul, etc., Ins. Co. v. McGregor, 63 Tex. 399. 79. When insured is distinctly informed of position of the company in ample time to commence a suit, and acts upon his own judgment and that of his attorney, he cannot sustain a claim that his delay in commencing suit was caused by negotiations for a compromise. Garido v.. American Central Ins. Co., 16 Ins. L. J. 151 (Cal.) 80.- A written indorsement-" Feb.. 11, 1885, provision in this policy limiting time within which suit may be brought is hereby waived for thirty days from this date," made when seven days of the limited time remained, construed as suspending the operation of the limitation clause for thirty days, giving the insured in effect thirty-seven instead of thirty days within which to institute his action. Virginia Fire and M. Ins. Co. v. Aiken, 16 Ins. L. J. 138; 82 Va. 424. 74. Where a bankrupt insurance company has obtained an adjustment of a claim against it by means of fraud it 81.- Repeated recognition by an inmust be held to have waived a clause insurance company of its liability on a the policy requiring suit for a loss to be brought within a year. In re State Ins. Co., 16 Fed. Rep. 756. policy, and refusal to pay, upon the distinct and only ground that a certain suit had not terminated, is a waiver of a pro75.- The limitation as to time of bring- vision in the policy requiring suit to be ing an action is operative as an inde- brought within twelve months next after pendent condition, and cannot be made the loss. Horst v. London F. Ins. Co., to depend on the waiver of precedent con- | 73 Tex. 67; 11 S. W. Rep. 148. ditions. Universal Fire Ins. Co. V. Weiss Bros., 13 Ins. L. J. 573; 106 Pa. 20; *Meisman v. State Ins. Co., 27 Pac. Rep. 77; 2 Wash. 459. 82.- Where defendant's agent was au-thorized to settle plaintiff's loss for a certain sum, and the agent reported to plaintiff that he was authorized to settle 76. If company by objecting to proofs the loss, and that he would do so, but imposes upon the assured the duty of failed to state the amount which he was making them complete, the delay is mu- authorized to pay, and by such statetual and the time of limitation is neces-ments induced plaintiff to forbear bringsarily extended. Barnum v. Merchants' ing his action within the six months limFire Ins. Co., 14 Ins. L. J. 50; 97 N. Y. ited in the policy,-held, that the company had waived the limitation, and that 77. If assured is induced by repre- it was estopped to urge it to defeat an 188. Other Special Cases. action brought after the expiration of the six months. Bish v. Hawkeye Ins. Co., 69 Iowa, 184. 83.- Waiver of a stipulation in a policy limiting the time within which suit may be brought need not be in writing, but may arise from such a course of conduct upon the part of the company as will equitably estop it from pleading the prescribed limitation in bar of a suit by the insured. *Thompson v. Phoenix Ins. Co., 136 U. S. 287; 34 L. ed. 408; 19 Ins. L. J. 481; 10 Sup. Ct. Rep. 1,019. 84.- Mere negotiations for a settlement are not sufficient to show a waiver of a condition of limitation of time for suit on a policy. *Allemania Ins. Co. v. Little, 20 Ill. App. 431; *Phænix Ins. Co. v. Lebcher, Id. 450. 85.- If a delay in bringing suit on a policy within the time limited therein is a result to which the company mainly contributed by holding out hopes of amicable adjustment, the company cannot take advantage of the delay under the limitation clause of the policy. *Allemania F. Ins. Co. v. Peck, 24 N. East. Rep. 538; 133 Ill. 220; *Thompson v. Phonix Ins. Co., supra, No. 83. 88.- The law does not favor clauses of limitation in policies of insurance. They are strictly construed and allowed to be readily waived. *German F. Ins. Co. v. Carrow, 21 Ill. App. 631. 87.- A waiver by implication of a limitation in the policy as to the time of bringing suit thereon must be made by the company during the running of the period of limitation. * Everett v. London & L. Ins. Co., 28 W. N. C. 203; 48 Phila. Leg. Int. 363; 21 Atl. Rep. 819; 142 Pa. 332. 88. The lapse of six months after a fire bars an action on a policy providing that no action shall be sustained unless commenced within six months after a fire, and that the lapse of time shall be conclusive evidence against the validity of the claim, although a portion of the time limited expired before the company waived an examination which the policy required before the loss should be payaable. *Meesman v. State Ins. Co., 27 Pac. Rep. 77; 2 Wash. 459. upon a policy of fire insurance is not waived by conduct of the company calculated to make the assured believe the loss will be paid, where such conduct ceases sufficiently early to leave reasonable time to sue. *Steel v. Phoenix Ins. Co., 47 Fed. Rep. 863; 21 Ins. L. J. 242. 90.- A limitation in an insurance policy as to the time within which suit may be brought is waived by the requirement of an adjuster to whom the assured, upon attempting to deal with the company, has been referred as having full charge of the settlement of the loss, insisting upon the production of duplicates of vouchers which he is informed will take until after the expiration of such time to procure, notwithstanding a provision requiring all waivers to be indorsed upon the policy in writing. *Dibbrell v. Georgia Home Ins. Co., 14 S. E. Rep. 783; 110 N. C. 193. 91.- A waiver of the limitation of time to sue on an insurance policy, by requiring the production of vouchers which cannot be procured in such time, is not limited to the additional time necessary for their procurement, but entirely abrogates the limitation. Id. 92. Other special cases. Plaintiffs insured a steamer for £1,500, and reinsured with defendants for £500, under a policy which provided that no suit should be maintained thereon unless commenced "within the term of twelve months next after any loss or damage shall occur." The steamer was injured in November, 1854, and the plaintiffs having paid the amount claimed on the 9th of August, 1855, brought this action on the 8th of August, 1856, to recover from the defendants their proportion; held, too late, for that the "loss or damage" referred to in defendant's policy, was the injury to the vessel, not the payment by the plaintiffs. Provincial Ins. Co. v. Etna Ins. Co., 16 Up. Can. Q. B. 135. 93. It seems that neglect to sue receiver of an insurance company within time prescribed by the policy does not bar the claim. Sands v. Son, 1 T. & C. 13; rev'd on other grounds, 56 N. Y. 662. 94. When performance of an insurance contract is defeated by war which prevents a suit, the ordinary statute of 89.- A limitation of twelve months limitations only remains for the protecwithin which action may be brought tion of the company. Phanix Ins. Co. Other Special Cases. v. Underwood, 12 Heiskell, 424 (Tenn.) clared paid and removed as a cloud upon 95. When policy provides that a claim under it must be prosecuted within a limited time, a notice of a loss and demand of payment cannot be construed as such a prosecution. Ins. Co. v. La Croix, 35 Tex. 249; 45 Id. 158. his title, set up as a defense that suit was not brought upon the policy within a year, as limited therein, the company having taken the place of the holder of the first mortgage, whose duty it was to recover the money due on the policy to 96. A limitation clause prescribing the amount of his mortgage. Pearman that action must be brought within v. Gould, 4 Cent. Rep. 135; 15 Stew. Eq. twelve months after loss is inoperative 4 (N. J.) under Maine statute. Dolbier v. Agri- 103.- Where a policy provides that cultural Ins. Co., 67 Me. 180. no action shall be commenced more than twelve months after the loss; and the insured, who is entitled to maintain an action for the entire proceeds, under Code, § 2,544, brings the action within twelve months, that a party does not intervene until after the expiration of twelve months will not defeat the action as to such portion of the proceeds as he shows himself entitled to. Stevens v. Citizens' Ins. Co., 69 Iowa, 658. 97.-- The limitation clause has no application to a claim to recover back premium paid on a policy void from the beginning. Waller v. Northwestern Assurance Co., 13 Ins. L. J. 789; 64 Iowa, 101. 98. When proof of loss is neither made nor waived within the time limited there can be no claim that time has been extended under the Iowa statute. Cornett v. Phanix Ins. Co., 15 Ins. L. J. 128; 67 Iowa, 388. 99. Under the Indiana statute the limitation is void. Ins. Co. of N. A. v. Brim, 16 Ins. L. J. 720; 111 Ind. 281; and see Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443; French v. Id., 5 McLean, 461 (U. S. Cir.) 104.- An objection that action on a policy has not been commenced within the time stipulated in the policy must be made by a special plea. Moore v. Phonix F. Ins. Co., 3 N. Eng. Rep. 59; 62 N. H. 240. 105.- A suit instituted after the prescribed period, but during pendency of a similar suit seasonably brought in the Federal Court, it seems under the Louisi 100. If the last day for bringing an action on a policy falls on Sunday, the action may be brought on the next Monday. *Owen v. Howard Ins. Co., 87 Ky.ana Civil Code may not be barred. Long 571. v. Hope Ins. Co., 17 Ins. L. J. 638 (La.) 101.- Where a parol contract of insurance evidenced by a written receipt for the premium and specifying the insurance to be for three years from May 31st, 1870, and policy issued and accepted thereon, makes the insurance three years from May 6th, and fire occurs May 16th, 1873, the insured cannot abandon the policy and maintain a suit on the parol contract so as to avoid the operation of the limitation clause prescribed in the policy as to the time within which suit must be brought. Farmers' Mut. Fire Ins. Co. v. Barr, 94 Pa. 345. 102.- Where a fire insurance company which has insured mortgaged premises purchases and takes an assignment of a first mortgage thereon, within a year after a loss on the premises by fire, it cannot, in a suit by a purchaser of the premises under a second mortgage, brought to have the first mortgage de 106.- A stipulation in an insurance policy issued in Dakota Territory upon property therein, limiting the time within which an action may be brought upon the policy to the period of six months from the date of the loss, is void, under Dak. Comp. Laws., § 3,582. *Johnson v. Dakota F. & M. Ins. Co., 45 N. W. Rep. 799; 1 N. D. 167. 107. The rule that to sustain a proviso in a contract, that an action thereon must be brought within a time much less than the statutory period of limitation there must be a consideration, unless it was within the contemplation of the parties when the contract was entered into, applies to an insurance policy. *Barnes v. McMurtry, 19 Ins. L. J. 642; 45 N. W. Rep. 285; 29 Neb. 178. 108.- An omission in an affidavit of defense to an action for insurance, spe Cross References cifically to mention the defense of failure to bring the action within the time specified in the policy, is not an abandonment of the defense, nor is such defense waived by an offer to settle the suit. *National Ins. Co. v. Brown, 24 W. N. C. 518; 18 Atl. Rep. 389; 128 Pa. 386; 43 Balt. Underwriter, 37; 19 Ins. L. J. 225; 47 Phila. Leg. Int. 360. 109.- Where an insurance policy contained a stipulation that no action should be sustainable against the company unless commenced within six months next after the fire occurred, and a fire broke out during the evening of Aug. 23, 1884, and extended over into the 24th, a suit began Feb. 24, 1885, was barred by the limitation clause, and could not be sustained. *Allemania Ins. Co. v. Little, 20 Ill. App. 431. 110.- Where a policy provides that no action shall be commenced after a year, and that lapse of time shall be taken as conclusive evidence against the validity of the claim, any statute of limitation to the contrary notwithstanding, a statute relative to the bringing of a second action within a year after a reversal of the first is inapplicable. *Hocking v. Howard Ins. Co., 130 Pa. 170; 47 Phila. Leg. Int. 109; 19 Ins. L. J. 280; 18 Atl. Rep. 614. 111.- Under the Illinois Practice Act, § 85, a cause must be considered as pending, within the meaning of a clause in an insurance policy as to litigation, during two years from the time the same was reversed and remanded by the supreme court, as during that time either party may file the transcript. *American C. Ins. Co. v. Brown, 29 Ill. App. 602. Statutory Provisions. 115. Connecticut. No limitation less than one year from the time when the loss insured against shall occur. Gen. Stat. Conn., 1888, § 2,912. 116. Indiana. Any agreement or condition not to sue for a period of less than three years void. R. S. Ind., 1881, § 3,770. 117. Maine. Extended to two years. R. S. of Maine, 1883, 459, § 87. 118. Massachusetts. Company may not by any condition, restriction or stipulation in their by-laws or policies, designate the county in which suit shall be brought against it, or limit the term of 112.— A clause in an insurance policy, commencing such suit to a period less that no action thereon shall be sustain- than two years from the time right acable unless "commenced within twelve crues. Pub. Stat. Mass., 1882, ch. 119, months next after the loss shall occur," § 43. does not limit the term within which suit shall be brought to a period less than one year, within the inhibition of N. C. Code, § 3,076. *Muse v. London Assur. Corp., 108 N. C. 240; 20 Ins. L. J. 515; 13 S. E. Rep. 94. 119.- Cannot limit time to less than two years after cause of action accrues. Acts Mass., 1887, ch. 214, § 26. 120. North Carolina. Period prescribed of not less than one year from time loss accrues. 2 Code N. C., § 3,076. 118. Exceptions to statutory limita- 121. Vermont. Restricted to a period tions do not apply to a limitation, by a of not less than twelve months from the policy of insurance, of the time within occurrence of the loss. R. L. Vt., 1880, which a suit shall be brought thereon. § 3,626. SECTION XXII. Wherever in this policy the word "insured" occurs, it shall be held to include the legal representative of the insured, and wherever the word "loss" occurs, it shall be deemed the equivalent of “loss or damage. New York Standard Form. New in phraseology and arrangement. Cross references. Section one. Subd. II. Parties and persons insured. Subd. IX. Change in interest, etc. Nos. 124 et seq., 202 et seq. Subd. X. Assignment. No. 106. Nos. 87, 88, 89, 90, 91, 93, and Subd. Ex-Section eleven. Renewal. No. 23. |