Admiralty Fund v. Peerless Insurance

Plaintiffs and appellants Admiralty Fund, the Income Fund of Boston, Inc., Competitive Capitol Fund and Seaboard Leverage Fund (Funds) appeal from a judgment entered pursuant to the granting of defendant and respondent Peerless Insurance Company’s (Peerless) motion for summary judgment.

For the reasons hereinafter expressed, we conclude that equitable tolling principles may be applicable to the loss discovery provision in the fidelity insurance contract in issue in the present case.

Since the trial court in granting the summary judgment on the theory that there was “no triable issue as to the facts surrounding the loss discovery provision” did not consider the application of such principles, we reverse and remand.

Procedural and Factual Background

On October 10, 1975, the Funds filed a second amended complaint against Peerless and other insurance companies for damages and declaratory relief. The Funds’ complaint alleged that on or about January 28, 1960, Peerless entered into a written insurance agreement whereby Peerless insured the Funds against loss up to $500,000 resulting from the occurrence of certain described “insured risks,” including loss through any…