R. L. Kimsey Cotton Co. v. Pacific Insurance Co. of New York
R. L. Kimsey Cotton Co. v. Pacific Insurance Co. of New York
Dissenting Opinion
dissenting. The Court of Appeals correctly decided this case. The evidence demanded a finding that the sprinkler system was off from Saturday until the following Thursday when the fire occurred. The insured’s employee, who was in charge of installing the new sprinkler heads, stopped the installation on Saturday because of the lack of help on that day to hold the ladder. Though the plant was in operation on Sunday, Monday, Tuesday and Wednesday preceding the fire, there is a total lack of evidence as to why the remaining new sprinkler heads could not have been installed during this time. The replacement of the one sprinkler head which had popped the week before would have permitted the turning on of the valve controlling the water supplied to the sprinkler system in this area.
Under the express provisions of the insurance policy, the insured was required to use “due diligence in maintaining in complete working order all equipment and services, installed for the . . . extinguishment of fire in the property covered by this policy and under the control of the insured,” and the insurer would not be liable for a loss occurring “while the hazard is increased by any means within the control or knowledge of the insured.”
The evidence demanded a finding that the insured had breached this condition of the policy.
Opinion of the Court
In this case we review a ruling of the Court of Appeals that an insured, as a matter of law, did not exercise due diligence in maintaining fire prevention equipment in complete working order thereby increasing the hazard of fire and suspending the fire insurance coverage. More specifically it was held: “Where a contract of fire insurance expressly required the insured to exercise due diligence in maintaining all fire prevention equipment in complete working order, and provided that the insurance was suspended and the insurer was not liable for loss occurring while the hazard was increased by any means within the control and knowledge of the insured; and the record showed without contradiction that the hazard of fire loss was materially increased while the water valve to a part of the sprinkler system was turned off for making necessary repairs and alterations to the sprinkler system, and that the insured did not use reasonable diligence in completing the repairs and alterations and thereby increased the hazard for an unnecessary length of time, the hazard was increased by means within the control and knowledge of the insured, and the insured could not recover for a loss occurring while the hazard was thus increased.” (Emphasis supplied.) Pacific Ins. Co. v. R. L. Kimsey Cotton Co., 116 Ga. App. 424 (157 SE2d 754).
We are well aware that the sprinkler system was cut off and under repair from Saturday until the following Thursday when the fire occurred as well as the numerous facts recited in the opinion of the Court of Appeals that go toward showing the insured failed to exercise due diligence in keeping the sprinkler system in working order; however, a thorough survey of the entire record discloses that the issue of due diligence is not without contradiction. The evidence shows that the insured’s employees were trying to run the newly installed oven used in production and put in the new sprinkler heads and both jobs could not be done at the same time, that there were about sixty peo
Due diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Code § 105-201. Thus, due diligence is relative, a question of degree, and to determine due diligence the circumstances of each case must be considered. Certainly, due diligence in maintaining the fire prevention equipment in a plant may vary depending upon the circumstances under which the plant is operating. What might be reasonable under one set of circumstances would not be reasonable under another set. The insurance policy contemplates that the insured would operate its plant and conduct business activities on the insured premises and that circumstances would change. Who should weigh these circumstances and determine whether the insured exercised
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.