Westchester Fire Insurance Company v. Paul Sperling Dba Sperlings Dress Shop

This is an appeal from a judgment of the District Court of Nevada in a diversity case. Jurisdiction is under 28 U.S.C. § 1332 . The sole issue is whether the action against the appellant insurance company is barred by the time limitations set out in the policy.

On January 28, 1965 a burglary of the appellee’s dress shop was discovered. This action was commenced February 18, 1966, which was one year and 21 days after the discovery of the burglary. Ap-pellee was awarded judgment for $23,-267.94.

Appellant contends that the appellee has not complied with the following provision of the insurance policy:

The policy also contained a provision on presentation of proof of loss as follows:

The District Court determined that since the plaintiff could not commence suit until sixty (60) days after filing of a properly executed proof of loss, the intent of the policy was to afford plaintiff a full 12 months after the 60 day period within which to commence suit. The court relied on Steel v. Phoenix Ins. Co., 51 F. 715 (9th Cir. 1892), aff’d 154 U.S. 518 , 14 S.Ct. 1153 , 38 L.Ed. 1064 (1893). That Oregon decision construed a fire insurance contract with provisions similar to those in the…