Alabama courts find that insurance policy provisions setting out the measure of damages within the scope of the policy “expressly limits the damages for which the [insurance company] is liable.” Com. Union Ins. Co. v. Ryals, 355 So.2d 684, 686 (Ala. 1978) (quoting Great Am. Ins. Co. v. R.R. Furniture Salvage of Mobile, Inc., 162 So.2d 488, 494 (Ala. 1964)); see also Reliance Ins. Co. v. Substation Products Corp., 404 So.2d 598, 609 (Ala. 1981) (limiting recovery to “the correct measure of damages under the policies”).
The cases appear to support appellees' position.Commercial Union Ins Co v Ryals, 355 So.2d 684 (Ala, 1978), Phoenix Assurance Co of New York v Singer, 221 F. Supp. 890 (ED Mo 1963), aff'd 331 F.2d 10 (CA8, 1964), Andrews v Empire Co-Operative Fire Ins Co, 197 Misc. 387; 87 N.Y.S.2d 629 (1949), rev'd, 276 App. Div. 447; 95 N.Y.S.2d 514 (1950) (on grounds that there was no "meeting of minds" as to what the loss was), McQuaid Market House Co v Home Ins Co 147 Minn. 254; 180 N.W. 97 (1920). In Phoenix Assurance, for instance, the plaintiff insurer brought a declaratory judgment action to establish the invalidity of an arbitration award of $38,500 made upon a fire loss at the home of defendant, and to fix the amount of plaintiff's liability on its policy for such loss.
77, or $16,680.77 more than the amount at which he established the replacement cost. State Farm, citing Commercial Union Ins. Co. v. Ryals, 355 So.2d 684 (Ala. 1978), and Reliance Ins. Co. v. Substation Products Corporation, 404 So.2d 598 (Ala. 1981), maintains that the Ponders never proved any actual cash value, although there was testimony as to replacement cost, and that they were paid more than the replacement cost specified by them. The Plaintiffs' position is directly contrary to that of Defendant. Plaintiffs state that the only controversy presented to the jury was based on the payments under Coverage A for loss of the dwelling and on the payments under Coverage B for loss of contents.
We agree The amount of the award is not supported by the evidence, whether it is founded on tort or contract theories of recovery If recovery is based on the insurance policies, the correct measure of damages is the actual cash value of the property at the time of loss, but not exceeding the cost of repair or replacement of the building with goods of like kind within a reasonable time after loss. Commercial Union Assurance Company v. Ryals, 355 So.2d 684 (Ala. 1978) Substation relied upon the general contractor who built the insured building to prove the cost of repair.
Id. at 1027–1028, 45 Cal.Rptr.3d 92.Mitchell v. Aetna Casualty & Surety Co., 579 F.2d 342, 351 (5th Cir.Miss.1978) ; Arkin Distributing Co. v. American Ins. Co., 85 Mich.App. 359, 363–364, 271 N.W.2d 430 (1978) ; Commercial Union Ins. Co. v. Ryals, 355 So.2d 684, 686–687 (Ala.1978) ; Phoenix Assurance Co. v. Singer, 331 F.2d 10, 12 (8th Cir.Mo.1964). Supra.
Glens Falls Insurance Co. v. Gulf Breeze Cottages, Inc., supra at 830. Accord, Commercial Union Insurance Company v. Ryals, 355 So.2d 684, 686 (Ala. 1978). See also Gulf Ins. Co. v. Carroll, 330 S.W.2d 227, 233-34 (Tex.Civ.App. 1959).