Brewer v. Vanguard Insurance Co.

614 S.W.2d 360, 1980 Tenn. App. LEXIS 419
CourtCourt of Appeals of Tennessee
DecidedNovember 21, 1980
StatusPublished
Cited by13 cases

This text of 614 S.W.2d 360 (Brewer v. Vanguard Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewer v. Vanguard Insurance Co., 614 S.W.2d 360, 1980 Tenn. App. LEXIS 419 (Tenn. Ct. App. 1980).

Opinion

OPINION

FRANKS, Judge.

Plaintiffs, all named insureds in a policy of fire insurance, recovered judgment of $25,000.00 for the loss of the insured dwelling destroyed by fire. Defendant insurance company has appealed, contending the policy was rendered voidable by plaintiffs' concealment, misrepresentation or breach of warranty and conditions.

The plaintiffs are husband and wife, and Mrs. Davis, the mother of the wife. In 1952, plaintiffs, husband and wife, purchased the house in Memphis, Tennessee while Brewer was stationed near Memphis in the United States Navy. The couple, along with Mrs. Davis, resided in the house for approximately one year, until plaintiff Brewer was transferred. Thereafter, Mrs. Davis occupied the house alone until July 15, 1978. Brewer retired from the Navy in 1961 and, at the time of the fire, August 17, [362]*3621978, the Brewers were residing at Kingston, Tennessee, where they owned and operated a motel. Mrs. Davis had moved out of the house approximately 32 days prior to the fire and the house was being refurbished and repaired.

Brewer had maintained fire insurance on the house from the date of purchase but the first policy purchased from defendant was in 1971. Defendant initially issued a policy insuring the dwelling for a period of three years with a $12,000.00 limit of liability. The policy named insureds as Buey D. & Sara Davis Brewer and W. F. Davis, ATI-MA. Upon expiration of the first policy, defendant issued another for a three-year term commencing January 1, 1974, with coverage increased to $17,500.00. The named insureds were the same as in the original policy; however, the policy contained a condition not in the original policy: “the described premises is the only premises where the Named Insured or spouse maintains a residence other than business or farm properties....”. In January, 1977, defendant issued a one-page renewal declaration extending coverage through January 21, 1978. The renewal declaration listed the Brewers and Mrs. Davis, ATIMA, as the named insureds and increased the coverage for the dwelling to $23,00.00. It contained the same condition as to residence as the 1974 policy. Defendant issued a renewal declaration with the same conditions in January, 1978, extending coverage through January 21, 1979, with coverage increased to $25,000.00. The named insured was listed “Buey D. & Sara Davis Brewer & Mrs. W. F. Davis”; however, the letters “ATI-MA” did not appear. Defendant did not call to the insureds’ attention the change in conditions and Brewer testified he was not aware of the additional terms until he discussed the policies with his attorney after the loss.

Following the loss, the insureds claim was denied by defendant on the basis the Brewers did not occupy the house at any time during the policy period, which constituted a material misrepresentation as to the occupancy of the dwelling and Mrs. Davis had no insurable interest in the dwelling.

When suit was filed, defendant affirmatively raised the policy defenses and the trial judge, sitting without a jury, made the following findings:

[Tjhere is no evidence from which the court can find there has been an actual misrepresentation made by these parties. There is no application for insurance involved here in as far as proof is concerned.
The court, I suppose, is being asked to infer from the statement on the bottom of the declaration page that these plaintiffs did represent to the insurance company that they were maintaining this as their residence. The court cannot find in fact that any misrepresentation has expressly been made.
The court feels with the party plaintiff, Mrs. Davis, being named as an additional insured on the policy and on the fact that she lived there up until 1978, it is significant from that that the company would have to be aware that there was some unusual circumstances in this case. The court feels that there has been no material misrepresentation made that would in effect increase the loss under this particular policy with reference to the fire coverage and of course from the proof there has been no evidence that any tender of refunded premiums have been made.

Defendant contends Mrs. Davis made a factual misrepresentation to defendant’s agent shortly after the first policy was issued. This contention is based on Mrs. Davis’s testimony but we conclude from her testimony the defendant was chargeable with knowledge prior to expiration of the original policy that Mrs. Davis was the sole occupant of the dwelling. She testified:

Q. And, now, were you caring for the property during the time that they [the Brewers] were away?
A. Yes, yes.
Q. Did or not you have some furniture in the household?
A. All the furniture in there was mine.
Q. And, did you not have insurance on that furniture along with other insurance on the house?
[363]*363A. Yes, sir.
Q. I will ask you if some time before the fire if an insurance agent from the defendant company didn’t come to your home and look it over?
A. Yes, sir.
Q. Where all did he look around in the house?
A. Well, he just looked at the rooms and the yard and around.
Q. Did he make any pictures?
A. Yes, he made some pictures.
Q. I will ask you at that time if he didn’t ask you who lived in the house?
A. Yes, sir.
Q. What did you tell him?
A. I told him that I lived there, that I was taking care of the place while Mr. and Mrs. Brewer were out of the city.
******
Q. Have you ever in any way tried to misrepresent who lived in the house?
A. No.
Q. Or who owned the house?
A. No, I told them that Mr. and Mrs. Brewer owned the house and I was just living there taking care of it while they were out of the city.
Q. And, this was the insurance agent that you were talking to at that time?
A. Absolutely.

Defendant argues that Mrs. Davis’s statements to the agent were misleading. Residency was not a condition of coverage at the time of the conversation but, if material, defendant was furnished sufficient information to be put up on inquiry as to the Brewers’ residency. We find no material misrepresentation in Mrs. Davis’s testimony.

Defendant forcefully argues the policy in force at the time of the loss established the rights of the parties and the warranty as to residency was breached by the Brewers.

When an insurance policy renewal is made, unless otherwise provided and called to the attention of the insured, the terms of the original policy become a part of the renewal contract of insurance. See 13A Appleman, Insurance Law and Practice,

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Cite This Page — Counsel Stack

Bluebook (online)
614 S.W.2d 360, 1980 Tenn. App. LEXIS 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-vanguard-insurance-co-tennctapp-1980.