Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
On May 3, 1950 the defendant issued its policy of insurance entitled "Jewelry -- Fur Floater Policy" to the plaintiff, which by successive renewals perpetuated the coverage until May 3, 1953. Among the insured articles designated in the schedule of the policy was "Article 1. Description. One diamond ring 2.22 cts. in platinum setting with 2 baguette diamonds. Amount $2,288.00."
On August 9, 1952, while the plaintiff was a passenger on the ship "Ocean Monarch" and in possession of the ring, the central diamond in the setting was discovered to have
disappeared and has not since been found. The ring itself with the setting and two baguette diamonds was not lost.
The plaintiff, as the named assured, prosecuted the present action to recover from the defendant insurer the amount of $2,288 stated in the schedule of the policy.
It is evident that the attorney of the plaintiff conceived the policy to be in the distinguishable category of what is known as a "valued policy."
A valued policy may be generally described as one in which the measure of the value of the property insured is definitely settled by the contractual engagement of the parties so that in the event of a total loss proof of the actual value becomes unnecessary. Indeed, it has been judicially stated that it is the uncertainty of the amount of the liability of the insurer which distinguishes a so-called open policy from a valued policy. Such an agreed valuation has been declared to be in that particular in the nature of a contract for liquidated damages. Appleman, Insurance Law and Practice , § 3827, p. 180; Couch, Cyclopedia of Insurance Law , § 74, p. 103; 29 Am. Jur. 917, § 1222.
More than a score of states have legislative enactments commonly denominated valued policy statutes which govern the latitude and effect accorded valued insurance policies. It will be noted that some of the statutes do and others do not deal with the subject of partial losses. See 49 Columbia L. Rev. 827.
In undertaking to determine whether a policy is to be classified as open or valued, the contract must be examined in its entirety to ascertain the mutual intentions of the parties existing at the time of its execution. In that pursuit it is observed that the instant policy contains the following express provision:
"Where any insured item consists of articles in a pair or set, this policy is not to pay more than the value of any particular part or parts which may be lost, without reference to any special value which such article may have as part of such pair or set; nor more than a proportionate part of the insured value of the pair or set." (Emphasis supplied.)
It may be insinuated with same logical reasons that the policy viewed in its entirety straddles the dividing line between an open and a valued policy, but in determining the present appeal we believe it to be unnecessary ...