A. Perley Fitch Company v. Continental

It is conceded by the defendant that it has waived the policies' requirements of notice of loss. However, the policies provide with reference to the conditions precedent as follows: ""No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with.... "" It is undisputed that under our law unless the plaintiff's failure to comply with the requirement of proof of loss is excused on the ground of waiver, estoppel or for some other good reason, there must be a nonsuit. Bean v. Insurance Co., 88 N.H. 416, 419; Kilgore v. Association, 78 N.H. 498, 501 ; Johnson v. Casualty Co., 73 N.H. 259. The plaintiff contends that under R. L., c. 326, dealing with fire insurance policies as construed by our court (Firemen's Insurance Co. v. Houle, 96 N.H. 30, and cases cited), the failure to file a proof of loss is no bar to this suit. It is unnecessary to decide whether the provisions of this chapter can be expanded to cover the sprinkler liability policies involved here without legislative direction because the plaintiff never raised this question before the Trial Court and it is too late to do so now. Baxter &c. Co. v. Company, 98 N.H. 62, 63. In considering whether the defendant has waived its right or is estopped to defend on the ground that no proofs of loss were ever filed, it is important to remember that although cases have often failed to distinguish between waiver and estoppel. (McCracken v. Insurance Co., 94 N.H. 474 ), there is a substantial difference between them. Therrien v. Maryland Cas. Co., 97 N.H. 180; 45 C. J. S. 612, 613. Waiver is a voluntary relinquishment of a known right and it ""will not be found unless the insurer has full knowledge of all the material facts."" Therrien v. Maryland Cas. Co., (supra) , 182. Here the defendant was ignorant of the most important material facts, including the alleged freezing and bursting of a sprinkler pipe relied upon by the plaintiff in the trial as the cause of its loss, and since it is firmly established that actual knowledge on the part of the insurer is a prerequisite to waiver, it is clear that there can be none in this case. Therrien v. Maryland Cas. Co., supra; 16 Appleman, Insurance Law and Practice 613-616.