Aetna Casualty & Surety Co. v. Ardizone

481 So. 2d 380, 1985 Ala. LEXIS 4250
CourtSupreme Court of Alabama
DecidedDecember 20, 1985
Docket84-42, 84-44
StatusPublished

This text of 481 So. 2d 380 (Aetna Casualty & Surety Co. v. Ardizone) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Casualty & Surety Co. v. Ardizone, 481 So. 2d 380, 1985 Ala. LEXIS 4250 (Ala. 1985).

Opinion

JONES, Justice.

Plaintiffs are members of an investment group that purchased a warehouse outfitted with refrigeration equipment. Initially, the warehouse was leased back to the original owner, who was charged with providing the insurance on the building. After the lease expired, however, Plaintiffs were faced with procuring insurance on the property.

One of the investors, John Theiss, who operated a separate business, Gulf Coast Paint & Supply Company (Gulf Coast), contacted the insurance agent who had provided coverage for his separate business and requested the agent’s help in acquiring insurance on the warehouse. That agent, in turn, contacted Aetna’s local representative, who, according to the agent, assured him that Aetna would provide coverage for the warehouse if Gulf Coast would store in it at least $2,000 worth of its material.

The trial judge held that this condition was met and that a policy was issued by Aetna covering the warehouse. This policy specifically covered damage due to vandalism, but did not cover losses due to theft.

The trial court entered the following judgment:

“This matter was tried without a jury on the 13th and 14th days of August, 1984. Thereafter, the parties submitted briefs which have been carefully reviewed by the Court. Based upon the testimony offered in open Court, the exhibits, the deposition testimony read into evidence, the demeanor of the witnesses, and the briefs and arguments of the parties, this Court makes the following findings of fact and conclusions of law:
“FINDINGS
“A. On February 11, 1983, the defendant issued a binder and, subsequently, on March 14, 1983, a policy of insurance covering a building known locally as the “Warley Building.”
“B. Thereafter, on and shortly before April 15, 1983, the building suffered extensive damage at the hands of vandals who destroyed and/or removed electrical and refrigeration fixtures insured under the policy.
“C. The building was occupied at the time of the loss with Gulf Coast Paint & Supply, Inc., storing a quantity of aggregate material loaded on a pallet in the premises.
“D. The damage to the insured property totalled $80,617.00. Of that figure, $9,618.00 represents the cost of fixtures that were removed.
“CONCLUSIONS OF LAW
“A. This Court has reviewed the applicable cases dealing with vandalism damage and theft of fixtures. Those authorities include the following: “[Herein the court cited essentially those cases reviewed in the instant opinion.]
“Having reviewed these authorities, this Court concludes that the loss as described in plaintiff’s Exhibit 10, with the exception of the $1,000.00 deductible, is covered under the vandalism clause of the policy and with the further exception of the $9,618.00 worth of fixtures that were removed from the premises after the vandalism.
“THEREFORE, it is ORDERED, ADJUDGED and DECREED that a judgment be and hereby is awarded in favor of the plaintiffs and against the defendant in the amount of $69,999.00, plus $4,199.94 in interest for a total judgment of $74,198.94 plus costs.”

[382]*382I.

Aetna seeks to have the policy declared void ab initio, because the issuance of the policy was based on information which it claims was fraudulent. Primarily, it argues that Gulf Coast was storing some of its goods in the warehouse for the sole purpose of deceiving the Company into issuing a policy with lower premiums and greater coverage. The ■ Company makes this assertion in the face of evidence that its own agent actually suggested this arrangement. The trial judge, after hearing the testimony and the depositions read into the record, and after observing the demeanor of the witnesses, concluded that the evidence presented to him ore tenus did not support Aetna’s contention. The evidence of record amply supports this finding.

Alternatively, Aetna contends that the amount of its liability ought to be reduced to $25,000 (the damages which, according to Aetna, resulted exclusively from the acts of vandalism), because the policy, by its own terms, excludes all other losses. Specifically, the policy provides that Aetna should not be liable for loss:

“2. by pilferage, theft, burglary or larceny except that this Company shall be liable for willful damages to the building^) covered caused by burglars in gaining entrance to or exit from such building(s) or any part of the building(s).”

The interpretation of this provision of an insurance contract (the exclusion of coverage applicable to theft in the context of coverage for vandalism) presents an issue of first impression in this jurisdiction. Our review of the excellent briefs of counsel, as well as our independent search, reveals several cases from other jurisdictions relating to this issue. We now review those cases briefly as a preface to our holding. While each case may be distinguished upon its facts, all are related by a similar insurance contract provision.

II.

In Theo v. National Union Fire Insurance Co., 99 Ga.App. 342, 109 S.E.2d 53 (1959), a homeowner sought to recover on two houses that were damaged by vandalism and which were insured against vandalism and malicious mischief, but not against theft or burglary. An inspection after the vandalism revealed that some items were “missing.” Among the missing items were bathroom fixtures, plumbing, an electric water heater, an electric refrigerator, window frames, and the kitchen sink. The Georgia Court of Appeals concluded that the missing items must be considered to have been stolen, an event for which coverage was expressly excluded, and thus denied recovery.

Another Georgia case, Pacific Indemnity Co. v. N.A., Inc., 120 Ga.App. 793, 172 S.E.2d 192 (1969), interpreted a similar provision in a multi-peril insurance policy as it applied to a commercial building. In that case, someone removed a large amount of copper flashing from the roofs of buildings within a shopping center. The flashing was a permanent part of the roof, and removal of the copper caused serious damage to the roof. The court held that because the injury occurred in connection with a theft, and theft was a part of the express exclusionary clause, there could be no recovery.

In State Auto Mutual Insurance Co. v. Trautwein, 414 S.W.2d 587 (Ky.1967), the Kentucky Court of Appeals, then the state’s highest court, came to an opposite conclusion. In that case, some apartments were broken into and air conditioning units which had been permanently affixed to the walls were stolen. The court found that, because the walls were injured by the process of removing the units, the apartment owner could recover. Recovery was not limited to the cost of repairing the injury to the walls, but included the cost of replacing the air conditioning units.

Similarly, in Allstate Insurance Co. v. Coin-O-Mat, Inc.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Theo v. National Union Fire Insurance
109 S.E.2d 53 (Court of Appeals of Georgia, 1959)
Pacific Indemnity Co. v. N. A., Inc.
172 S.E.2d 192 (Court of Appeals of Georgia, 1969)
Parnell v. Rohrer Chevrolet Co.
231 A.2d 824 (New Jersey Superior Court App Division, 1967)
Great American Ins. Co. v. Dedmon
70 So. 2d 421 (Supreme Court of Alabama, 1953)
Allstate Insurance Company v. Coin-O-Mat, Inc.
202 So. 2d 598 (District Court of Appeal of Florida, 1967)
Pryor v. State Farm Fire & Cas. Co.
74 Cal. App. 3d 183 (California Court of Appeal, 1977)
Beauty Supplies, Inc. v. Hanover Insurance Co.
526 S.W.2d 75 (Missouri Court of Appeals, 1975)
State Automobile Mutual Insurance Co. v. Trautwein
414 S.W.2d 587 (Court of Appeals of Kentucky (pre-1976), 1967)
Unkelsbee v. Homestead Fire Insurance Co. of Baltimore
41 A.2d 168 (District of Columbia Court of Appeals, 1945)
Cresthill Industries, Inc. v. Providence Washington Insurance
53 A.D.2d 488 (Appellate Division of the Supreme Court of New York, 1976)
Benson Holding Corp. v. New York Property Insurance Underwriting Ass'n
124 Misc. 2d 955 (Civil Court of the City of New York, 1984)
Sterling v. Audubon Insurance Co.
452 So. 2d 709 (Louisiana Court of Appeal, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
481 So. 2d 380, 1985 Ala. LEXIS 4250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-ardizone-ala-1985.