Browse Caselaw

Mrs. Brooks M. Pennington, Sr. and Brooks Pennington, d/b/a Pennington Magnolia Market filed a claim against the Aetna Insurance Company to recover the proceeds of an insurance policy which covered the plaintiffs' place of business for loss due to vandalism and malicious mischief. The defendant, by way of answer, set forth the affirmative defense that the action of plaintiffs was barred by reason of plaintiff's failure to comply with all the provisions contained in the policy in question, which compliance was a condition precedent to the filing of a suit to collect the proceeds of the policy. In particular, the defendant pleaded that the proof of loss required to be filed under the terms of the policy was not ever filed; the defendant further asserted that if a certain letter which was filed by the defendant was construed as a proof of loss, then it was not timely and was of no effect. The defendant then filed a motion for summary judgment in which it contended that, as a matter of law, the suit was barred by reason of the failure of plaintiffs to file its proof of loss as required by the policy. Defendant's motion was supported by an affidavit of the defendant's claim supervisor, and a copy of the insurance policy. Plaintiffs, in response to the motion for summary judgment, offered the court three letters which, by stipulation of the parties, were admitted as genuine without the necessity of having affidavits. After hearing argument of counsel, the court took the matter under advisement and briefs were filed by both parties. Subsequently the court granted the defendant's motion for summary judgment. It is from this judgment that the plaintiff's appeal.