Castle, Chief Judge, Hastings, Senior Circuit Judge, and Kiley, Circuit Judge.
Plaintiff brought this action*fn1 on a policy of insurance issued by defendant which covered the personal property and inventory in plaintiff's five food store locations and one warehouse against specific perils, including fire. Plaintiff claimed that the defendant was liable under the policy for the full amount of the loss, $43,676.05, plus $10,919.01 attorney's fees for alleged vexatious refusal to pay plaintiff's demand. Defendant admitted liability only to the extent of $15,000, and paid that sum into the registry of the court. The district court, upon defendant's motion, held that the plaintiff was entitled to recover only the $15,000, and plaintiff appealed.
The insurance policy in question is of the type known as a "provisional policy of insurance," and differs from most casualty policies in that the coverage effective under the policy, and the premiums payable for such coverage, varies from time to time in relation to, and never in excess of, the values of the property insured. Thus, a provisional premium is paid in advance and reports are made to the insurer each month which indicate the actual value of property on the insured premises. At the end of the accounting period, the final premium is adjusted to reflect the exact values which have been at risk during the period.*fn2
The policy issued to plaintiff by defendant contained the following clauses:
Subject to the provisions with respect to this Company's percentage of participation as indicated on the face of this policy, coverage under this form applies to each of the following locations for which a definite amount is specified as a limit and inserted in the blank immediately opposite the location item.
SCHEDULE OF LIMITS OF LIABILITY
Insurance No. Rate Street Address, City & State
$200,000 at 1 -- 219-225 E. Lincoln St.,
$15,000 at 2 -- 400 East ...