Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.
Plaintiff sued defendant American Casualty Company (American) and Firemen's Insurance Company (Firemen's) upon fire insurance policies issued by them covering plaintiff's dwelling. The American policy was $5,000, the Firemen's $7,500, and the fire damage to the building was stipulated as $8,750.
The policies were in the "standard" form required by N.J.S.A. 17:36-5.20. Lines 28 to 35 of that form provide that "Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring * * * while a described building * * * is vacant or unoccupied beyond a period of sixty consecutive days * * *." The American policy bore an endorsement which did extend the
vacancy and unoccupancy privilege beyond 60 days; the Firemen's policy did not.
Firemen's defended upon the ground that the property had been vacant and unoccupied more than 60 days, and the jury returned a verdict in its favor. Plaintiff does not challenge that verdict.
American admitted liability, but contended its liability was limited to 5,000/12,500 of $8,750, or $3,500, because the standard policy provides (lines 86-89):
"This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not." (Emphasis added.)
The trial court agreed with American, and entered judgment against it for $3,500. It is from this determination that plaintiff appeals.
Plaintiff's argument is that American was liable for the $5,000 face amount of its policy because (quoting from her brief):
"These policies covered substantially different risks in their vacancy privileges. American by its contract assumed the severe burden of insuring during unlimited vacancy, whereas Firemen's refused to assume that risk beyond 60 days, a much lesser burden. The loss occurred while American was on the risk and its co-insurer was off. * * * When policies cover different risks the insurance is not concurrent and the pro-rata clause does not apply."
From 1892 (L. 1892, c. 231, p. 366) until 1944 the New Jersey standard policy provided "This company shall not be liable under this policy for a greater proportion of any loss * * * by fire than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property." Fisher v. Phoenix ...