American General Fire & Casualty Co. v. Buford

716 S.W.2d 86, 1986 Tex. App. LEXIS 8607
CourtCourt of Appeals of Texas
DecidedJuly 23, 1986
Docket14528
StatusPublished
Cited by1 cases

This text of 716 S.W.2d 86 (American General Fire & Casualty Co. v. Buford) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American General Fire & Casualty Co. v. Buford, 716 S.W.2d 86, 1986 Tex. App. LEXIS 8607 (Tex. Ct. App. 1986).

Opinion

EARL W. SMITH, Justice.

American General Fire & Casualty Company, d/b/a American General Companies [American General], issued its fire and extended coverage insurance policy with builder’s risk Form 21 endorsement to George M. Buford, covering a building located in Maxwell, Caldwell County, Texas. Fire destroyed the building, and Buford unsuccessfully attempted to collect $75,000 under the policy. He then brought suit. *87 Trial was to a jury. From a judgment for $75,000 plus interest and attorney’s fees, based upon an instructed verdict, American General appeals. Its sole point of error is that the trial court erred in granting appellee Buford’s motion for directed verdict because Tex.Ins.Code Ann. art. 6.13 (1981) does not apply to the policy in question, which American General contends was a builder’s risk policy. Buford contends that the policy in question was not a builder’s risk policy, but a Texas Standard Fire Policy, renewing a prior policy and increasing coverage from $50,000 to $75,000, with a builder’s risk Form 21 endorsement (because renovations were being made on the building), and that the policy therefore was a valued policy within the meaning of art. 6.13. Though Frank Siddons was a party to the action in the trial court, he is not a party to this appeal. Appellant and appel-lee so agree.

THE POLICY

The policy in question was issued for the period from September 19, 1982 to March 19, 1983. The face of the policy, a “Texas Standard Fire” policy, and the builder’s risk Form 21 endorsement are set out in footnotes 1 and 2. 1 , 2

In the declaration of coverage on the face of the policy, column 4, titled “TOTAL INSURANCE,” shows no amount; instead, the entry says “SEE ATTACHED FORM 21” Again, in the “DESCRIPTION OF PROPERTY” section of the standard policy, no figure is shown in the “AMOUNT OF INSURANCE” column, and there is no description of the property insured in the space therefor.

The Form No. 21 endorsement is titled “BUILDER’S RISK — ACTUAL COMPLETED VALUE.” Paragraph 1 of the builder’s risk endorsement reads:

1. This policy being for an amount not to exceed One Hundred per cent (100%), hereinafter referred to as “this company’s percentage of liability,” of the actual values existing in any building or structures described below, from time to time as values are added, and not to exceed in any event “this Company’s percentage of liability" of the “Estimated Completed Cost, ” as hereinafter provided, on the following described property:

(Emphasis added.) Subparagraph (1) describes the property insured, showing its “intended occupancy” to be “Duplex.” In this subparagraph the “Estimated Completed Cost" is shown as $75,000. (Emphasis added).

Paragraph 2 of the “Form 21 Builder’s Risk — Actual Completed Value Form” reads:

2. This policy as to each or any building or structure above described shall be and constitute insurance on each or any of the said buildings or structures while in course of construction in an amount not to exceed “this Company’s percentage of liability” of the actual values which may have been placed into or made a part of each or any of such buildings or structures. The amount of insurance applicable to each or any of the buildings or structures insured under this policy while in course of construction shall change from time to time in accordance with the actual values which have been put into each or any of such buildings or structure (in so far as they may have been completed at the time of loss); but in no event shall the amount of insurance under this policy with respect to these buildings or structures and materials, equipment or supplies, as provided in paragraph 3 hereof, exceed “this Company’s percentage of liability” of the “Estimated Completed Cost” of each as shown in this policy nor shall this Company’s liability for any loss hereunder exceed “this Company’s percentage of liability” of such loss. (Emphasis added.) The provisions printed on the back of this form are hereby referred to and made a part hereof.
*88 Prescribed by The State Board of Insurance.
NOTE TO AGENTS: In the blanks provided on the face of the policy for showing amounts of insurance, insert “See Form Attached. ” (Emphasis added.)

Paragraph four of Form 21 reads:

4. Expiration: It is understood and agreed that this insurance shall attach only while the building or buildings are in the course of construction, and until fully completed and occupied either in whole or in part. In no event shall this insurance extend more than thirty (30) days beyond the completion of the main building. The insurance on private garages and outbuildings shall not cease until the insurance on the main building with which they are to be used ceases. Machinery may be set up and operated solely for the purpose of testing the same without prejudice to the policy. Paragraph eight thereof reads:
8. Final Adjustment Clause: Since the premium under this policy has been based on the “estimated” completed cost of the building or buildings or structure insured hereunder, it shall be optional with the insured or company for the premium to be recomputed on the basis of “actual” completed cost and the premium adjusted accordingly. This Company or its duly appointed representative shall be permitted at all reasonable times during the term of this policy or within one year after liability hereunder has ceased, to inspect the property insured and to examine the insured’s books, records and policies in so far as they relate to any property covered hereunder, and to check actual cost of buildings insured. This inspection and/or examination shall not waive or in any manner affect any of the terms or conditions of this policy.

BUFORD’S PETITION

Buford alleged six causes of action: (1) breach of contract; (2) violation of Tex.Ins.Code Ann. art. 6.13 (1981); (3) violation of art. 21.21, § 16(a) Tex.Ins.Code Ann. and Board Regulation No. 41060 promulgated thereunder; (4) a Deceptive Trade Practice action, by violation of Section 17.41 et seq. Tex.Bus. & Com.Code Ann.; (5) breach of duty of good faith and fair dealing; and (6) gross negligence and negligent misrepresentation.

Plaintiff alleged actual damages of:

(1) $75,000, representing the face amount of the fire policy, and the reproduction cost, without deductions for depreciation
(2) Interest on damages at the rate of ten percent (10%) beginning 60 days after the loss until the present.

Plaintiff also pleaded, “to the court only,” treble damages under art. 21.21, Tex.Ins.Code, and additional damages under the deceptive trade practices cause of action. Buford also sought exemplary damages and attorney’s fees. The court granted an instructed verdict on the first cause of action, holding that art.

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Bluebook (online)
716 S.W.2d 86, 1986 Tex. App. LEXIS 8607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-general-fire-casualty-co-v-buford-texapp-1986.