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    FIDELITY & DEPOSIT CO. OF MARYLAND v. PINK, 302 U.S. 224 (1937)

    U.S. Supreme Court

    FIDELITY & DEPOSIT CO. OF MARYLAND v. PINK, 302 U.S. 224 (1937)

    302 U.S. 224

    FIDELITY & DEPOSIT CO. OF MARYLAND
    v.
    PINK, Superintendent of Insurance of State of New York.*
    No. 38.

    Argued Nov. 17, 18, 1937.
    Decided Dec. 6, 1937.

    [302 U.S. 224, 225]   Messrs. Harold L. Smith and Ralph S. Harris, both of New York City, for petitioner.

    Messrs. Irvin Waldman and Alfred C. Bennett, both of New York City, for respondent.

    Mr. Justice McREYNOLDS delivered the opinion of the Court.

    In 1930 Southern Surety Company, a New York corporation, issued to John De Martini Company, Inc., a fidelity insurance bond and on the same day reinsured half of the risk with petitioner, Fidelity & Deposit Company of Maryland. The De Martini Company claimed a loss. While this was in course of adjustment (March, 1932), a New York court adjudged the Southern Company insolvent and dissolved it. Respondent Pink, Superintendent of Insurance for New York, took possession of its property and entered upon liquidation of the business.

    He allowed, but did not discharge, the De Martini Company's claim. Thereupon he demanded that petitioner pay half of it. This having been refused, he instituted [302 U.S. 224, 226]   these proceedings in the United States District Court to recover upon the reinsurance contract. Judgment went in his favor; the Circuit Court of Appeals affirmed; the matter is here upon certiorari. The facts are not in dispute.

    The contract between the two insurance companies incorporated the 'standard form of reinsurance agreement' adopted by the Surety Association of America in 1930. This form provides:

    Section 4, copied in the margin,1 contains the following, among other things:

    Petitioner's counsel maintain that the standard form provides for insurance only 'against loss'; that the reinsurer thereunder becomes liable only upon 'proof of the payment of such items by the Reinsured, and upon delivery to the Reinsurer of copies of all essential documents concerned with such loss and costs and the payment thereof'; that payment by the reinsured is a condition precedent to the reinsurer's liability. Sundry provisions in the form, indicated below, they say lend support to this view. 1   [302 U.S. 224, 228]   Respondent maintains that proof of payment is not a prerequisite to recover.

    Both courts below thought that Allemannia Fire Insurance Company v. Firemen's Insurance Company (1908), 209 U.S. 326 , 28 S.Ct. 544, 14 Ann.Cas. 948,

    __________ fective at the time of any breach of the bond resulting in a claim thereunder; such retention to be carried under any blanket bond or bonds issued and/or any blanket bond reinsurance or reinsurances carried by the Reinsured in favor of the same insured. The actual retained liability of the Reinsured as aforesaid shall not be more than that ceded to the Reinsurer, whether it be primary or excess or partly primary and partly excess. ...'

    Section 4:

    Section 10:

    We do not question the general rules concerning liability of reinsurers announced in the Allemannia Case; but the liability under any written contract must be determined upon consideration of the words employed, read in the light of attending circumstances.

    Here the two insurance companies stood upon an equal footing; both were experts in the field. The language used differs materially from that found in the policy of the Allemannia Company. There is no ambiguity and no circumstance requires disregard of the ordinary meaning of the language.

    The 1930 form provides: 'The Reinsurer does hereby reinsure against loss.' The Allemannia policy declared the company 'hereby agrees to reinsure.'

    Petitioner's policy says: 'The reinsurer's proportionate share of the loss ... shall be paid to the reinsured upon proof of the payment of such items by the reinsured and upon the delivery to the reinsurer of copies of all essential documents concerned with such loss and the payment thereof.' The Allemannia policy contained no equivalent terms. It provided: 'Upon receiving notice of any loss or claim under any contract hereunder reinsured, the said reinsured company shall promptly advise the said Allemannia Fire Insurance Company, at Pittsburg, Pennsylvania, of the same, and of the date and probable amount of loss of damage, and after said reinsured company shall have adjusted, accepted proofs of, or paid such loss or damage, it shall forward to the said Allemannia Fire Insurance Company, at Pittsburg, Pennsylvania, a proof of its loss and claim against this company upon blanks furnished for that purpose by said Firemen's Insurance Company, together with a copy of the original proofs and claim under its contract re insured, [302 U.S. 224, 230]   and a copy of the original receipt taken upon the payment of such loss . ...'

    As the standard form of 1930 was adopted twenty years after the Allemannia Case it fairly may be assumed that the dissimilar language employed was intended to impose liability different from the one there found to exist.

    The judgment below must be reversed. The cause will be remanded for further proceedings.

    REVERSED.

    The CHIEF JUSTICE took no part in the consideration or decision of this cause.

    Footnotes

    [ Footnote * ] Rehearing denied 302 U.S. 780 , 58 S.Ct. 407, 82 L.Ed. --.

    [ Footnote 1 ] Introduction-'Does hereby reinsure ____ against loss.'

    Section 3:

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