Boes v. Elmwood Federal Savings & Loan Ass'n

595 So. 2d 1189, 1992 La. App. LEXIS 560, 1992 WL 42589
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1992
DocketNo. 91-CA-761, 91-CA-762
StatusPublished
Cited by1 cases

This text of 595 So. 2d 1189 (Boes v. Elmwood Federal Savings & Loan Ass'n) 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
Boes v. Elmwood Federal Savings & Loan Ass'n, 595 So. 2d 1189, 1992 La. App. LEXIS 560, 1992 WL 42589 (La. Ct. App. 1992).

Opinion

DUFRESNE, Judge.

This appeal involves two consolidated suits. The first was filed by Boes Iron Works, Inc. against Elmwood Savings and Loan association (now in receivership with the Resolution Trust Corporation) seeking damages and alleging that Elmwood failed to procure fire insurance, after representing that it would do so, on a building owned by Boes which burned. The second was a suit by Elmwood against Roger T. Boes (owner of Boes Iron Works) for payment of a promissory note. A jury awarded Boes Iron Works $60,000 on the insurance related claim, and awarded Elmwood $25,859.74 in principal and interest, and $6,464.93 in attorney fees, in the suit on the note. All parties have appealed.

For the following reasons, we vacate the award of $60,000 to Boes Iron Works and grant judgment in favor of Elmwood in the insurance related claim. We also increase the award in favor of Elmwood in the suit on the note to $34,945.72. In all other respects, the judgment is affirmed.

The pertinent dealings between the parties as to the insurance matter began in early 1984, when Boes borrowed $169,000, from Elmwood. This loan was secured by a mortgage on property described as lots 3, 10, 11, 12, 13, 14 and 15, square 457, in the first district of New Orleans. The act of mortgage included a standard hazard insurance clause whereby the borrower was required to maintain fire insurance on all improvements, and provided that if this were not done, the lender was authorized to purchase such coverage and charge the costs to the borrower. The incontrovertible intent of this clause was to protect the lender’s security interest, rather than that of the borrower.

[1191]*1191At the loan closing in February, 1984, Boes presented two fire policy binders. The first, for about $45,000, covered four houses on lots 12, 13, 14 and 15. It was not shown whether this binder ever matured into a final policy, but in any case Boes testified that these houses were torn down with Elmwood’s approval shortly after the loan was made. The second binder was for $75,000, and covered an old church, the building at issue here, which occupied lots 10 and 11. A final policy did issue on this building, as per the binder, by American Guarantee and Liability Insurance Company, effective February 15, 1984, through February 15, 1987.

It was further shown that Boes operated his iron fabrication business from several modern metal buildings on lots adjoining the mortgaged properties, and that he used the church building for storage. These other buildings were insured by Liberty Mutual Insurance Company. In early 1986, Boes attempted to place coverage for the church building with Liberty Mutual as well, but was informed by John Schindler, this insurer’s representative, that his company would not undertake that risk because of the building’s age of about 60 years. Schindler testified that he was familiar with the church because he had visited Boes’ shop “many, many times”, and had looked over the structure.

It is not clear whether the American Guarantee policy was still in effect at this time, but nonetheless, in March, 1986, Boes contacted Robert Rodrigue, an independent agent, in regard to insuring the church. Rodrigue came to the site to discuss the matter, and Boes made an application wherein he requested $45,000 hazard coverage for the building and $20,000 for the contents. Rodrigue was able to get a binder from Lloyds of London for these amounts, but this underwriter demanded that a number of improvements be made on the structure before it would issue a final policy. Boes duly received this list of requirements, which included repairs on crumbling masonry on the front of the building, installation of fire extinguishers, repair of window panes (all of which had been broken by vandals), re-connection of the burglar-alarm system, and general clean-up and maintenance. He testified that he made all of these repairs and improvements, and so notified Rodrigue.

Rodrigue testified that he did not recall whether or not he received this information, but in either case it did not reach the underwriters timely, and they therefore canceled the binder as of June 8, 1986. Notice of cancellation was sent by ordinary mail to the address of the church, rather than to Boes’ office next door. Although the letter was never returned to the sender, Boes testified that he never received it. Assuming this to be true, the only expectation Boes could thus have had at that time was that the building was insured for $45,-000 through March of 1987.

In early May of 1987, Ms. Becnel, a loan service employee of Elmwood, noted that Boes’ loan file did not show current insurance on the church. Whether Elmwood’s records showed an expiration date of February 15, 1987, as per the old American Guarantee policy, or March 18, 1987, as per the canceled Lloyd’s binder, is not shown in the record. In any case, on May 12, 1987, Ms. Becnel sent Boes a letter informing him of the lack of evidence of fire insurance, and stated as follows:

If I do not receive a policy within two weeks, I will assume you are not presently covered. Therefore, I will obtain insurance for you and charge the premiums to your escrow account.

Boes did not respond to this letter in any way, and stated that he never received either a policy or a bill for the premiums from Elmwood between receipt of the letter and the fire at the church on October 2, 1987. Neither did he recall ever attempting to contact Schindler or Rodrigue about this situation.

Ms. Becnel testified that when she received no response to her letter, she contacted another insurance agent about coverage, and several days later this agent told her that he was unable to place the policy. At that point, she turned the matter over to her supervisor, Pamela Lemley. Ms. Lemley stated that she could not recall [1192]*1192whether any further efforts were made to procure the coverage, or whether she ever contacted Boes again about the problem.

After the church burned, it became clear that it was not in fact insured. Boes sued Elmwood alleging that he had relied on the May 12, 1987 letter and assumed that the building would be insured, and that the bank’s failure to place the policy renders it liable to him for the loss. The bank’s position is, first, that the letter did not absolve Boes of his legal obligation under the loan agreement to maintain hazard insurance, or obligate the bank to do so. Second, it urges that by his own admissions Boes knew that the building was uninsured when it burned, and therefore could not have been relying on the letter as grounds to believe otherwise. Finally, it proposes that if it is liable, its liability cannot exceed $45,000, the amount of coverage for which Boes had applied in regard to the Lloyds policy of March, 1986.

Our review of the record convinces us that Boes knew at the time of the fire that the building had not been insured by Elmwood, and that the jury’s apparent finding to the contrary was manifestly erroneous. We therefore find merit in Elm-wood’s second argument, and on the facts of record reverse the finding of liability against it.

The applicable standard of review is set forth in Rosell v. ESCO, 549 So.2d 840 (La.1989) as follows:

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Related

Boes v. Elmwood Federal Savings & Loan Ass'n
597 So. 2d 1034 (Supreme Court of Louisiana, 1992)

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Bluebook (online)
595 So. 2d 1189, 1992 La. App. LEXIS 560, 1992 WL 42589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boes-v-elmwood-federal-savings-loan-assn-lactapp-1992.