disagreeing with Fedas but noting that it stood for the principle “that an agreement to pay ‘actual cash value’ requires the insurer to repair or replace the property as nearly as possible to its condition as of the date of the casualty”
How later courts described this case
- disagreeing with Fedas but noting that it stood for the principle “that an agreement to pay ‘actual cash value’ requires the insurer to repair or replace the property as nearly as possible to its condition as of the date of the casualty”
- noting that “courts uniformly hold ... that actual cash value insurance is strictly a contract of indemnity. The insured should be made whole but not be put in a better position than he was before the fire.”
- agreeing that principle of indemnity is best served by considering evidence relevant to effect of over and under insurance
- "[Pjunitive damages should not be awarded on evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence or oppressiveness.” (emphasis added)
Written by the judges who cited it.
The opinion
GIVAN, Chief Justice,
dissenting.
I respectfully dissent from the majority opinion’s decision concerning punitive damages. I agree with the guidelines laid down in the majority opinion, but I disagree with their application in the case at bar. The facts submitted in the trial court are sufficient to support the award of punitive damages.
There is no question but what Travelers through its agent misrepresented the insurance contract to the plaintiff. They now argue that such a misrepresentation was a mere “mistake.” It was well within the province of the jury to believe that Travelers was an expert in its business, that it fully understood the import of the contract in question and that the misrepresentation to the plaintiff was deliberately calculated to take advantage of her in a situation in which she had no expertise.
It was fully within the province of the jury also to consider the stress this misrepresentation placed the plaintiff in and it certainly could consider that she was required to employ counsel who was, in turn, forced to engage in costly litigation in her behalf when a simple and correct application of the contract by Travelers would have resulted in prompt payment without such litigation.
Although I agree with the general principles of law laid down in the majority opinion, I feel the majority has transcended the bounds of appellate review and has engaged in a weighing of the evidence to determine that punitive damages should not have been awarded.
I would affirm the trial court in all respects.