American Bank & Trust Co. v. Continental Casualty Co.

476 So. 2d 453, 1985 La. App. LEXIS 9841
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1985
DocketNo. 17177-CA
StatusPublished
Cited by2 cases

This text of 476 So. 2d 453 (American Bank & Trust Co. v. Continental Casualty Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Bank & Trust Co. v. Continental Casualty Co., 476 So. 2d 453, 1985 La. App. LEXIS 9841 (La. Ct. App. 1985).

Opinion

HALL, Chief Judge.

The plaintiff-bank filed suit against the defendant-insurance company seeking recovery of the proceeds allegedly due under an insurance policy issued by defendant which provided protection against loss to the insured's mortgagee interest in mortgaged property when such loss occurs through error or accidental omission on the part of the insured in the operation of the [454]*454insured’s customary procedure in requiring, procuring and maintaining hazard insurance policies payable to the insured as mortgagee. The bank’s loss occurred when a mobile home mortgaged to the bank was destroyed by fire shortly after the hazard insurance policy covering the mobile home had lapsed. The insurance company’s defense was grounded on the contention that the loss was not covered under the terms of the errors and omissions policy as the loss resulted from following a customary procedure which was inherently defective in nature as opposed to resulting from an error in the operation of plaintiff’s customary procedure and further that the plaintiff-bank had no customary procedure for replacing lapsed policies. After trial, the district court found that coverage existed and judgment was rendered in favor of the plaintiff in the amount of $40,375.24, the pay-off balance on the note secured by the mortgage on the mobile home.

SPECIFICATION OF ERRORS

Defendant appealed asserting the following specifications of error:

1. The trial court erred in finding that the policy covered the creation of a defective procedure as opposed to covering errors or omissions in the operation of that customary procedure;
2. The trial court erred in finding that the policy language in question was ambiguous;
3. The trial court erred in finding that the plaintiff would have procured insurance had it learned of the cancellation; and
4. The trial court erred in awarding the full amount of the note without any competent evidence as to the value of the mobile home.

For the reasons set forth in this opinion, we affirm the judgment of the district court.

FACTUAL BACKGROUND

In May, 1982, the bank purchased from the vendor of the mobile home a promissory note executed by James E. Thornton dated May 26, 1982 in the amount of $82,-323.36, which note was secured by a chattel mortgage on the mobile home. Thornton obtained a comprehensive hazard insurance policy on the mobile home in the amount of $54,000.00, which policy named the bank as lienholder and provided mortgagee protection.

On April 25, 1983, Thornton was sent an expiration notice informing him that the insurance would expire on May 25, 1983 and a copy of this expiration notice also was sent to the plaintiff-bank. The bank employee who received the copy of the notice did not report receipt of the notice to a bank officer and there was no established procedure for the employee to take any particular action upon receipt of such a notice.

The hazard insurance policy lapsed on May 25, 1983 and the mobile home was totally destroyed by fire shortly thereafter on May 28, 1983. The mortgagor had previously filed a petition in bankruptcy and had been discharged from personal liability on the note held by the bank.

It was established at trial that plaintiff maintained a customary procedure in an effort to make certain that borrowers maintained insurance on mortgaged property. On the last business day of each month, a computer print-out report would be generated reflecting those insurance policies which had already expired and those policies which were scheduled to expire within the next fifteen days. A report was issued on April 29, 1983 but it did not indicate that the policy on the Thornton mobile home was about to expire because the scheduled policy expiration date was more than fifteen days from the date of the report. At the time of the next report at the end of May, 1983, the insurance policy had lapsed and the mobile home had been destroyed by fire.

It was established by the testimony of a vice-president of the bank that it was the policy of the bank to require hazard insurance on mortgaged property and for the bank to obtain insurance when borrowers allowed their policies to expire and that a [455]*455policy would have been procured in this case if a loan officer had been aware that the policy had lapsed.

The pertinent portion of the errors and omissions policy in effect at the time of the loss provides as follows:

A. COVERAGE — MORTGAGEE INTEREST: Subject to the limit of liability specified above, this Company agrees to indemnify the Insured for loss to the Insured’s mortgagee interest (including the Insured’s mortgagee interest in any legal fiduciary capacity) in real property and in personal property mortgaged in connection therewith, when such loss occurs through error or accidental omission on the part of the Insured (or those representing the Insured) in the operation of the Insured’s customary procedure in requiring, procuring and maintaining valid policies or other evidences of insurance against the perils described below,
(1) payable to itself as mortgagee, and
(2) on such property during and after foreclosure by the Insured or when sold under a conditional sales agreement or other instrument whereby title remains with the Insured;
if, by reason of such error or accidental omission, requisite insurance is not in force at the time of loss.

INSURANCE COVERAGE

Defendant’s first three specifications of error are directed at the trial court’s finding that the insurance policy provided coverage of the loss. The trial court found that the plaintiff was entitled to recover under the policy for the loss of its mortgagee interest in the mobile home. The court noted that both parties agreed that there was an error in the internal notice procedure in that a two week “gap” was created in which no notice would be received before an insurance policy expired. Although the defendant argued that there was no error on the part of insured as required under the policy and characterized the error in the instant case as purely procedural in nature resulting from following a defective internal notice procedure, the court found that the act of following an erroneous procedure constituted an error in and of itself. Further, the position of the defendant overlooked the fact that the development and adoption of an erroneous procedure is actually an employee error as such procedures are developed by employees.

The court held that the phrase “in the operation of the Insured’s customary procedure” was ambiguous and subject to different interpretations. The court held that the evidence amply showed that it was plaintiff's customary procedure to require, procure and maintain the requisite insurance on its collateral. However, plaintiff negligently failed to maintain insurance in the instant case despite the receipt of a cancellation notice from the insurer.

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Cite This Page — Counsel Stack

Bluebook (online)
476 So. 2d 453, 1985 La. App. LEXIS 9841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-bank-trust-co-v-continental-casualty-co-lactapp-1985.