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Fidelity & Guar. Ins. Corp. v. Mondzelewski

Supreme Court of Delaware

October 25, 1955

FIDELITY and GUARANTY INSURANCE CORPORATION, a corporation of the State of Maryland,
v.
Elsie MONDZELEWSKI, Appellee. Commercial Union Assurance Company, Limited, a corporation of the State of New York, New York Fire Insurance Company, a corporation of the State of New York, and Ohio Farmers Insurance Company, a corporation of the State of Ohio, Appellants,

Action by insured on fire policy covering two frame buildings, which were demolished by insured pursuant to order of city building inspector issued under authority of ordinance after partial destruction of buildings by fire. From order of the Superior Court, New Castle County, granting insured's motion for summary judgment, insurers appealed. The Supreme Court, Southerland, C. J., 115 A.2d 697, set cause for reargument. On reargument, the same court held, inter alia, that where a structure was damaged by fire, and building inspector of City of Wilmington condemned structure on ground that fire damage exceeded 50% of assessed value, owner or fire insurer could challenge order to determine whether damage exceeded 50% of real value.

Cause remanded with instructions.

Page 370

On reargument of questions posed by the Court.

Stephen E. Hamilton, Jr., Wilmington (Albert L. Simon, Wilmington, on the brief), for appellants.

Charles L. Paruszewski, Wilmington, for appellee.

Januar D. Bove, Jr., Wilmington (William F. Lynch, II, Wilmington, on the brief), City Sol. for City of Wilmington, amicus curiae.

Page 371

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

SOUTHERLAND, Chief Justice.

The facts of this case are stated in our prior opinion. See 115 A.2d 697. We held in that opinion that in a suit on fire insurance policies, in which the insured claims a total loss by reason of enforced demolition of the buildings after the fire, the insurer may defend by asserting either the invalidity of the ordinance requiring demolition or the invalidity of the action of the Building Inspector under it.

The ordinance in effect requires such demolition if damage by fire exceeds fifty per cent of the assessed value of the buildings. It was urged that this provision was unconstitutional on its face, as embodying an arbitrary standard-assessed value, which may or may not bear a reasonable relation to real value.

We refused to hold the ordinance void on its face, saying that the question before us was not solely a question to be decided upon a reading of the ordinance. We therefore ordered reargument upon the following questions:

[49 Del. 397] ‘ Was the condemnation order valid in the light of the ...


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