# Terpeluk v. Insurance Co. of North America

> Superior Court of Pennsylvania · April 16, 1959 · 189 Pa. Super. 259

URL: https://www.frixlaw.com/law-library/cases/6283052

## Case

- **Full name:** Terpeluk v. Insurance Company of North America
- **Court:** Superior Court of Pennsylvania
- **Decided:** April 16, 1959
- **Citations:** 189 Pa. Super. 259; 150 A.2d 558; 1959 Pa. Super. LEXIS 404
- **Precedential status:** Published
- **Opinion:** Dissent by Ervin
- **Judges:** Ervin, Gunther, Hirt, Rhodes, Watkins, Woodside, Wright
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6283052

## Opinion text

Dissenting Opinion by
Ervin, J.:
On September 21, 1954, appellees purchased an insurance policy from the appellant. The policy covered the appellees’ house for damage by windstorm. On October 15, 1954, Hurricane Hazel occurred, resulting in the alleged damage to appellees’ property. The loss was reported to the agent for the appellant company and on October 19, 1954, proofs of loss were filed. On October 22, 1954, a $2,800.00 estimate was filed with the appellant company and a check in the amount of $28.00 was sent in full settlement, payable to appellees. Appellees refused the check and it was returned to the company on November 5, 1954. In early April of 1955, the company informed appellees that it would *269 not pay the claim. At the same time appellees said, they would go to court. On April. 12, 1955, the. com-. pany advised appellees’ attorney that the claim .wqiild not be paid. '
The appellees called Walter C. Couston, an adjuster for the defendant, who testified on direct examination that because of the tremendous number of claims due-to the hurricane, 35 part-time people were. employed and that all claims under $300.00 were being paid without looking at them. Somebody misread the estimate of $2,800.00 as $28.00 and a cheek was sent for $28.00.
The policy in question contained a clause which limited the institution of suit to one year from the date of the loss. Suit was instituted oh November 23, 1955, more than thirteen months after the loss.'
The appellees contend that the appellant is estopped from strictly enforcing the limitation clause for the commencement of the action. In 29 A.L.R. 2d, page' 650, it is stated: “The usual basis for not permitting the insurer to take advantage of a contractual limitation being that the insured was induced by the conduct of the insurer not to bring suit until after the expiration of the period of limitation, the duration of the ne-.. gotiations which the insured claims deterred him from bringing action is quite naturally considered by many courts to have a large bearing on the issue of waiver or estoppel. Hence, in a number of cases, it has been held or indicated that the conduct relied upon to operate as a waiver or estoppel must have continued ei-. tlier to or very near the end of the period of limitation, or, as it is more frequently stated, that there cannot ' be a finding of waiver where a reasonable time’ remains in which to bring suit within the period of limitation after the claimant is no longer, justified in. re-, lying upon the conduct of the company, because, of a , denial of liability,, refusal to pay, or other circum *270 stances from which the termination of negotiations should have been inferred.” *
In J. V. Bonnert v. Pennsylvania Insurance Co., 129 Pa. 558 , 18 A. 552 ; O’Connor v. Allemannia Fire Insurance Co. of Pittsburgh, 128 Pa. Superior Ct. 336 , 194 A. 217 , and Sudnick v. Home Friendly Insurance Co., 149 Pa. Superior Ct. 145 , 27 A. 2d 468 , relied upon in the majority opinion, the insurance carrier negotiated for settlement so close to the end of the limitation period or beyond the end of the period as to prevent the bringing of suit within the period.
In the case at bar the appellees and their attorney had six months to bring suit after the appellant company gave notice that the claim would not be paid and the court below should have pronounced, as a matter of law, that this was a reasonable time.
I would reverse and grant judgment n.o.v. for the appellant.
Woodside and Watkins, JJ., join in this dissenting opinion.
O’Connor v. Allemannia Fire Ins. Co. (1937), 128 Pa. Superior Ct. 336 , 194 A. 217 ; Sudnick v. Home Friendly Ins. Co. (1942), 149 Pa. Superior Ct. 145 , 27 A. 2d 468 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6283052. Public record. Not legal advice.