{ "id": 2862774, "name": "H. O. WISEMAN, d/b/a Wiseman Cattle Company, Plaintiff-Appellee, v. ARROW FREIGHTWAYS, INC., Defendant and Third-Party Plaintiff-Appellee, v. The HARTFORD INSURANCE GROUP, Third-Party Defendant-Appellant", "name_abbreviation": "Wiseman v. Arrow Freightways, Inc.", "decision_date": "1976-07-13", "docket_number": "No. 2366", "first_page": "392", "last_page": "396", "citations": [ { "type": "official", "cite": "89 N.M. 392" }, { "type": "parallel", "cite": "552 P.2d 1240" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "267 N.E.2d 132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "131 Ill.App.2d 781", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2910721, 2912564 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0781-01", "/ill-app-2d/131/0781-02" ] }, { "cite": "126 N.Y.S.2d 389", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1953, "opinion_index": 0 }, { "cite": "283 App.Div. 73", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2901557 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ad/283/0073-01" ] }, { "cite": "39 N.M. 73", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573419 ], "weight": 2, "year": 1935, "opinion_index": 0, "case_paths": [ "/nm/39/0073-01" ] }, { "cite": "81 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365891 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0141-01" ] }, { "cite": "79 N.M. 593", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745678 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0593-01" ] }, { "cite": "52 N.M. 68", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579524 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0068-01" ] }, { "cite": "446 P.2d 210", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1968, "opinion_index": 0 }, { "cite": "79 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2741995 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0562-01" ] }, { "cite": "77 N.M. 512", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808502 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0512-01" ] }, { "cite": "84 N.M. 779", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764926 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/nm/84/0779-01" ] }, { "cite": "327 N.Y.S.2d 387", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 1 }, { "cite": "201 N.Y.S.2d 624", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1960, "opinion_index": 1 }, { "cite": "10 A.D.2d 962", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3033393 ], "year": 1960, "opinion_index": 1, "case_paths": [ "/ad2d/10/0962-01" ] }, { "cite": "145 N.Y.S.2d 609", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 1 }, { "cite": "216 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 1 }, { "cite": "70 Ill.App.2d 224", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588630 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/ill-app-2d/70/0224-01" ] }, { "cite": "224 F.Supp. 666", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 56471 ], "opinion_index": 1, "case_paths": [ "/f-supp/224/0666-01" ] }, { "cite": "267 N.E.2d 132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "131 Ill.App.2d 781", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2910721, 2912564 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/ill-app-2d/131/0781-01", "/ill-app-2d/131/0781-02" ] }, { "cite": "126 N.Y.S.2d 389", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1953, "opinion_index": 1 }, { "cite": "283 App.Div. 73", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2901557 ], "year": 1953, "opinion_index": 1, "case_paths": [ "/ad/283/0073-01" ] } ], "analysis": { "cardinality": 591, "char_count": 11198, "ocr_confidence": 0.781, "pagerank": { "raw": 1.5373813323390026e-07, "percentile": 0.6722449841670306 }, "sha256": "4ac83cfd405b7e6d1c83fc99d7bed2426a235c07e76f6bc3e109b7a0796b4292", "simhash": "1:9f9f83902ace4946", "word_count": 1876 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "LOPEZ, J., dissents." ], "parties": [ "H. O. WISEMAN, d/b/a Wiseman Cattle Company, Plaintiff-Appellee, v. ARROW FREIGHTWAYS, INC., Defendant and Third-Party Plaintiff-Appellee, v. The HARTFORD INSURANCE GROUP, Third-Party Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe appeal involves a \u201ctime to sue\u201d provision of a livestock transportation policy. The provision states:\n\u201cNo suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless commenced within twelve (12) months next after the loss occurs . . .\u201d\nCertain of plaintiff\u2019s cattle were killed or crippled1 while being transported by Arrow (Arrow Freightways, Inc.). The accident occurred October 30, 1972. Plaintiff brought suit for the loss June 26, 1974. Arrow brought a third-party suit against Hartford, who had insured the transportation of the cattle, on March 21, 1975. Hartford relied on the \u201ctime to sue\u201d provision in defending the third-party claim.\nPlaintiff recovered judgment against Arrow for his loss less a setoff for transportation costs. This portion of the judgment is not involved in the appeal. The trial court entered1 judgment in favor of Arrow and against Hartford for the amount of the loss. Hartford appeals contending the trial court erred in failing to give effect to the \u201ctime to sue\u201d provision of the insurance policy. We agree.\nOn January 9, 1973 Hartford denied liability under the policy on the basis that notice of loss had not been properly communicated to Hartford. Arrow asserts that once Hartford denied liability on a specific ground1, it waived other grounds for denying liability, including the \u201ctime to sue\u201d defense. See Larson v. Occidental Fire and Casualty Company, 79 N.M. 562, 446 P.2d 210 (1968) ; Miller v. Phoenix Assur. Co., Limited, of London, 52 N.M. 68, 191 P.2d 993 (1948). We do' not consider whether the defense was waived. Arrow did not reply to Hartford\u2019s answer asserting the defense; waiver was not pled. Larson v. Occidental Fire and Casualty Company, supra. No theory of waiver appears in Arrow\u2019s requested findings and conclusions. In addition, the trial court did not rule on any question of waiver. See Fredenburgh v. Allied Van Lines, Inc., 79 N.M. 593, 446 P.2d 868 (1968). The question of waiver is raised for the first time on appeal; it will not be considered. App. Rule 11.\nThe trial court ruled that Arrow \u201ccould not bring an action until a loss had actually occurred, such loss did not occur until the filing of this action.\u201d Arrow\u2019s view of this finding is that Arrow did not have a loss \u201cuntil such time as judgment is entered against it and the Court declares a loss has occurred.\u201d Under either the finding or Arrow\u2019s interpretation of the finding, we review the policy provisions to determine the meaning of \u201closs\u201d.\nThe policy refers to \u201closs 'by reason of death and crippling . . .of live stock . . . . \u201d It refers to animals crippled or killed and the amount of loss thereby ensuing. In c\u00e1se of loss, the trucker agrees to report the loss within a reasonable time. Payment of loss is to be made after adjustment of the loss. Whether ambiguity exists is a matter of law. McDonald v. Journey, 81 N.M. 141, 464 P.2d 560 (Ct.App.1970). The policy provisions are not ambiguous. \u201cLoss\u201d under the policy means loss to livestock; \u201closs\u201d under the policy does not mean the filing of a lawsuit or the entry of judgment. The trial court erred in ruling that loss did not occur until the lawsuit was filed.\nThe \u201ctime to sue\u201d provision began to run on October 30, 1972, when there was a loss to livestock. No suit having been commenced within twelve months of the loss, the time limit defense would appear to apply. However, the trial court ruled that the defense was against public policy and unenforceable.\nElectric Gin Co. v. Firemen\u2019s Fund Ins. Co., 39 N.M. 73, 39 P.2d 1024 (1935) held that a twelve-month time to sue provision was not void as being against the public policy represented by the general statute of limitation for suits on written contracts. Arrow does not argue such a policy provision. Arrow asserts that the loss to the livestock was plaintiff\u2019s loss; that plaintiff was not a party to the insurance contract and not bound by the twelve-month provision. Arrow contends that it was in no position to bring suit against Hartford until plaintiff sued Arrow. Arrow asserts that application of the twelve-month provision against Arrow places a \u201cdifficult, if not impossible burden\u201d upon Arrow. Arrow relies on Sassi v. Jersey Trucking Service, 283 App.Div. 73, 126 N.Y.S.2d 389 (1953).\nSassi, supra, involved a theft from cargo being transported by the insured trucker. The \u201ctime to sue\u201d provision was twelve months after the happening of the loss. The \u201closs\u201d was held to be the time when the insured was in a position to sue the insurance company because the policy provided the insurance company would pay \u201c \u2018for which loss or damage the insured may be held legally liable.\u2019 \u201d (Emphasis in Original.) There is no \u201clegally liable\u201d clause in Hartford\u2019s policy. W. C. Brooks v. Great American Insurance Company, 131 Ill.App.2d 781, 267 N.E.2d 132 (1971) is of no assistance because the provisions of the insurance policy are not reported. Neither of the above cases support the trial court\u2019s ruling.\nArrow\u2019s argument that it could not proceed against Hartford until Arrow was sued by plaintiff does not accord with the provisions of the policy. The policy provides that Arrow was insured \u201cfor the account of the owners\u201d of the livestock. Payment of loss was to be made to the owner (plaintiff) or to the owner and the trucker (Arrow). Under these provisions, Arrow, as the insured, could have proceeded against Hartford for the account of plaintiff at any time after the loss occurred.\nArrow has advanced no public policy reason why the \u201ctime to sue\u201d provision should not be enforced. The trial court erred in not giving effect to that provision. The judgment is reversed. The cause is remanded with instructions to enter an amended judgment in favor of Hartford on Arrow\u2019s third-party claim.\nIT IS SO ORDERED.\nHERNANDEZ, J., concurs.\nLOPEZ, J., dissents.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "LOPEZ, Judge\n(dissenting).\nI dissent.\nI think the word \u201closs\u201d in this contract is ambiguous. Thus, it is my opinion that the general principles applicable to the interpretation of insurance contracts should be followed and \u201closs\u201d should be held to refer to the time when a judgment is entered against Arrow.\nThe insurance company\u2019s argument that loss refers to the accident which is the basis for liability is a reasonable interpretation with decisional support. See, e. g. Mount Vernon Bank & Trust Co. v. Aetna Casualty & Sur. Co., 224 F.Supp. 666 (E.D.Va.1963).\nSimilarly Arrow\u2019s argument that it suffered no loss until a judgment was entered against it is a reasonable interpretation of the phrase and is supported by case law. In Pierce v. Standard Accident Ins. Co., 70 Ill.App.2d 224, 216 N.E.2d 818 (1966), the issue was the effect of a limitations provision in an insurance policy procured by a person in the business of repairing boats. The policy covered loss to boats which were left in that person\u2019s possession. The insurance contract had a requirement that suit be commenced within \u201c12 months next after inception of the loss\u201d yet the court allowed a suit filed more than twelve months after the theft of a boat. The court noted that the boat was not the property of the insured, and that the insured suffered no loss until he was sued for the loss of the boat by the boat\u2019s owner. Thus, the court concluded, it was clear that the policy was one of indemnification, rather than liability and the loss to the insured occurred when a judgment was rendered against him. Accord, W. C. Brooks v. Great American Insurance Company, 131 Ill.App.2d 781, 267 N.E.2d 132 (1971).\nIn Sassi v. Jersey Trucking Service, 283 App.Div. 73, 126 N.Y.S.2d 389 (Sup. Ct.1953) the court concluded that the word \u201closs\u201d was ambiguous. In that case a trucking company was insured for damage to another\u2019s property while in the trucker\u2019s possession. Merchandise was stolen from the truck and the owners sued the truckers, who in turn sued the insurance company. The issue was whether the action by the truckers was barred by the policy\u2019s limitation of action period, which required that suit be brought within twelve months of the \u201chappening of the loss.\u201d\nThe court approached the issue by looking to the policy as a whole to determine when the loss to the insured was deemed to take place. The payments were to be made to the owner for damages for which the insured would be legally liable. The court concluded that the insured would suffer no loss until his liability to the owners was established. The insurance contract in Pierce also provided that the insurance covered losses for which the insured was legally liable.\nThe opinion of the majority finds these cases distinguishable on the grounds that the insured in the instant case could recover for damage without a claim by the owner. Although I do not believe that the policy is unambiguous on this score, I think the provisions in the policy requiring that payment be made to the owner, and stating that the policy is for the account of the owner, indicate that the policy contemplates payment when the owner has a legal claim against Arrow and not otherwise. Thus, the description of the scope of the insurance coverage in Pierce and Sassi is not a point of distinction.\nThis interpretation of the policy is not free from criticism. However, there are two principles by which I am guided in interpreting it this way. One factor is that in a policy of this sort, where the damaged property does not belong to the insured, the time for the bringing of suit is effectively controlled by the actions of the owner, who is not bound by the contractual limitations. Mortenson v. Chook, 145 N.Y.S.2d 609 (City Ct.1955), aff\u2019d, 10 A.D.2d 962, 201 N.Y.S.2d 624 (1960). Where the insured is the owner, a different result is reached. McAlpin v. Day & Meyer, 327 N.Y.S.2d 387 (Sup.Ct.1971).\nThe second factor which should guide our interpretation of this clause is that principle of construction which states that ambiguous phrases are to be interpreted liberally in favor of the insured. Mountain St. M. C. Co. v. Northeastern N. M. Fair Ass\u2019n, 84 N.M. 779, 508 P.2d 588 (1973) ; Couey v. National Benefit Life Insurance Company, 77 N.M. 512, 424 P.2d 793 (1967). In Sassi the court commented upon this principle of interpretation:\n\u201cSome intricate policy provisions may not yield to clear and unambiguous phrasing; but the simple limitation clause involved here, if it means what the insurance company contends it means, could have been worded in unmistakable and decisive language.\u201d\nI think the word \u201closs\u201d is ambiguous and should be construed to mean the time when the owner\u2019s judgment against the trucker was entered.\nI would affirm the judgment.", "type": "dissent", "author": "LOPEZ, Judge" } ], "attorneys": [ "William P. Gralow, Civerolo, Hanson & Wolf, Albuquerque, for appellant.", "Thomas A. Tabet, Marchiondo & Berry, P. A., Albuquerque, for Wiseman.", "Jack Smith, Albuquerque, for Arrow Freightway s." ], "corrections": "", "head_matter": "552 P.2d 1240\nH. O. WISEMAN, d/b/a Wiseman Cattle Company, Plaintiff-Appellee, v. ARROW FREIGHTWAYS, INC., Defendant and Third-Party Plaintiff-Appellee, v. The HARTFORD INSURANCE GROUP, Third-Party Defendant-Appellant.\nNo. 2366.\nCourt of Appeals of New Mexico.\nJuly 13, 1976.\nCertiorari Denied Aug. 4, 1976.\nWilliam P. Gralow, Civerolo, Hanson & Wolf, Albuquerque, for appellant.\nThomas A. Tabet, Marchiondo & Berry, P. A., Albuquerque, for Wiseman.\nJack Smith, Albuquerque, for Arrow Freightway s." }, "file_name": "0392-01", "first_page_order": 428, "last_page_order": 432 }