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ROBERTS v. FEDERAL CROP INS. CO.

January 30, 1958

Harold ROBERTS, Ralph McLean, Robert Jessup, Geo. A. Murison, Andrew G. Nilles, H. E. McDonald, W. H. McDonald, M. E. Scheibner, Theodore B. Rice, Loren W. Pendell, J. E. Thoren, E. O. McLean, E. G. Branscom, S. A. Buckingham, R. E. Buckingham, Davis Bros., David G. Davis, T. R. Davis, Frank Miller, Lloyd McLean, Claude Miller, Miller Bros., E. E. Smith, Clyde W. Miller, Russell H. Hunt, Edwin Miller, Clarence Davis, Teressa M. Davis, Eugene Frederick, J. W. Buob & Sons, John A. Danielson, W. J. Hawes, Geo. Jordan & Sons, Dale Leander, Lucile E. Besel, Carl H. Viebrock, Orval Supplee, Clarence R. Edgemon, E.
v.
Vaughn, Charles D. Olin, James Edgemon, Clarence Adams, David Adams, W. H. Asmussen, John Carlock, Eugene Cavadini, Johnie Cavadini, Richard Daling, T. R. Hedges, Sam Iversen, F. P. Jenkin, Gene Jenkin, Carl H. Kummer, Malone & Son, H. J. Matthiesen, Matthiesen Bros., Harold Peterson, Howard Roberts, Eugene Roberts, Hollis Rommel, Gene Weimerskirch, E. A. Wesselman, Pete WillVSv. The FEDERAL CROP INSURANCE CORPORATION, an agency of the United States, Defendant



The opinion of the court was delivered by: DRIVER

Defendant has moved for summary judgment. The motion is supported by affidavits, and plaintiffs have filed answering affidavits. The motion must be denied unless it clearly appears that without any factual controversy defendant is entitled to judgment as a matter of law. *fn1" For the purpose of passing upon the motion, wherever there is any difference or dispute as to the facts, I shall take the plaintiffs' version as the true and correct one.

Plaintiffs' claims are set forth in their amended complaint. Its pertinent allegations may be summarized as follows:

 All of the plaintiffs are farmers who seeded wheat crops in Douglas County, Washington in the late summer of 1955. Such crops were insured against certain designated hazards, including winter-kill, by insurance policies issued by defendant. The policies each contained the following provisions:

 '16. Time of loss. Any loss shall be deemed to have occurred at the end of the insurance period, unless the entire wheat crop on the insurance unit was destroyed earlier, in which event the loss shall be deemed to have occurred on the date of such damage as determined by the Corporation.'

 '6. Coverage per acre. The coverage per acre established for the area in which the insured acreage is located shall be shown by practice(s) on the county actuarial table on file in the county office. The coverage per acre is progressive depending upon whether the acreage is (a) First Stage -- released and seeded to a substitute crop, (b) Second Stage -- not harvested and not seeded to a substitute crop, or (c) Third Stage -- harvested.'

 In the Spring of 1956, when the snow melted off the land, it became apparent that plaintiffs' wheat crops were 'a total loss.' Thereafter, on April 9, 1956, at a meeting at St. Andrews, Washington, the plaintiffs 'received information from one Creighton Lawson, Washington State Director of the defendant Corporation * * *' that no claims would be paid for the loss if the plaintiffs made such claims under the policies.

 As a result 'of the repudiation of the contract by the defendant, plaintiffs, in order to mitigate their damage, were forced to reseed the acreage on which the winter wheat crop had been lost at a cost of $ 6.50 per acre' on approximately 40,000 acres.

 The amended complaint also contains the following paragraph:

 'That, depending on the yield of the 1956 crop as reseeded, the above mentioned repudiation of the contract by defendant may result in further damage to the plaintiffs in an amount equal to the difference between the actual amount harvested and the insured amount of wheat and that in order to perfectly protect the plaintiffs the Court should direct that the insurance be reinstated.'

 The plaintiffs pray for judgment for the expense of reseeding at $ 6.50 per acre for reinstatement of the insurance, and for other relief.

 The paragraph XI quoted above, is identical to paragraph X of the original complaint verified on June 15, 1956, before the wheat crops could have been harvested. The amended complaint was filed September 23, 1957, more than a year after the 1956 harvest time. As will appear later herein, the defendant Corporation has consistently maintained that the insurance carried over and attached to the reseeded crops of the plaintiffs. It would seem, therefore, that there was no loss or damage to the reseeded wheat covered by the insurance policies, or plaintiffs would have specifically claimed the same when they filed their amended complaint in September, 1957.

 The defendant is 'an agency of and within the Department of Agriculture * * *' of the United States. *fn2" The form of crop insurance policy is prescribed in a federal regulation which has the force and effect of a statute. It was published in the Federal Register of September 21, 1951 (Vol. 16, Number 184, p. 9628 et seq.). In support of its motion, defendant calls attention to the following provisions:

 '4. Insured acreage. The insured acreage with respect to each insurance unit shall be the acreage of wheat seeded for harvest as grain as reported by the insured or as determined by the Corporation, whichever the Corporation shall elect, except that insurance shall not attach with respect to (a) any acreage seeded to wheat which is destroyed (as defined in section 15) and on which it is practical to reseed to wheat, as determined by the Corporation, and such acreage is not reseeded to wheat * * *.'

 '14. Notice of loss or damage. (a) If any damage occurs to the insured crop during the growing season and a loss under the contract is probable, notice in writing (unless otherwise provided by the Corporation) shall be given the Corporation at the county office promptly after such damage.

 '(b) If a loss under the contract is sustained, notice in writing (unless otherwise provided by the Corporation) shall be given the Corporation at the county office within 15 days after threshing is ...


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