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

[Page 302 U.S. 224, 227]

its share of such loss in the hands of the Reinsured by such date; provided, however, that the Reinsurer in any event shall have a period of forty-eight hours, after the receipt of such written notice from the Reinsured, to mail or otherwise despatch its payment; and provided further that in any such case the Reinsurer, if it desires to do so, may pay its share of the loss by means of a check drawn in favor of the obligee of the bond.'

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. [Footnote 1]

[Page 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:'3. Unless otherwise expressly agreed, the amount of liability retained by the Reinsured at its own risk both when this agreement is made and at the time of any breach of the bond resulting in a claim thereunder shall be:'(a) If the bond be other than a depository bond or blanket bond, in no event less than the amount ceded hereunder, such retention to be carried under the bond; or'(b) If the bond be a depository bond, in no event less than the amount ceded hereunder plus the amount of all reinsurance ceded by the Reinsured to the Reinsurer under any other depository bond or bonds issued by the Reinsurer in behalf of the Principal and effective at the time of any breach of the bond resulting in a claim thereunder, such retention to be carried under any depository bond or bonds issued and/or any depository reinsurance or reinsurances carried by the Reinsured in behalf of the Principal; or'(c) If the bond be a blanket bond, in no event less than the amount ceded hereunder plus the amount of all reinsurance ceded by the Reinsured to the Reinsurer under any other blanket bond or bonds issued by the Reinsured in favor of the same insured and ef-