Cambridge Mutual Fire Insurance Co. v. Newton

638 S.W.2d 75, 1982 Tex. App. LEXIS 4845
CourtCourt of Appeals of Texas
DecidedJune 9, 1982
Docket21021
StatusPublished
Cited by19 cases

This text of 638 S.W.2d 75 (Cambridge Mutual Fire Insurance Co. v. Newton) 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
Cambridge Mutual Fire Insurance Co. v. Newton, 638 S.W.2d 75, 1982 Tex. App. LEXIS 4845 (Tex. Ct. App. 1982).

Opinions

[78]*78ALLEN, Justice.

This is a suit on a Texas standard homeowners broadform insurance policy. Bob and Pamela Newton (Newtons) and Fort Worth Mortgage Corporation (mortgagee) brought this action against Cambridge Mutual Fire Insurance Company (Cambridge Mutual) seeking to recover damages sustained as the result of a fire that destroyed the Newton home. Following a trial to a jury on special issues, the Newtons were awarded $19,104.00 under the terms of the policy. A take-nothing judgment was rendered on the mortgagee’s claim against Cambridge Mutual. On appeal, Cambridge Mutual contends that (1) they were not liable under the policy as a matter of law; (2) the trial court erred in awarding damages for unscheduled personal property; (3) the trial court erred in awarding damages for expenses incurred by the Newtons; (4) the trial court presented an incorrect damage submission to the jury; and (5) the trial court erred in failing to submit defendant’s special issues to the jury. Fort Worth Mortgage Corporation cross-appeals claiming that its right to recover the unpaid balance of its mortgage was not barred by the statute of limitations. For the following reasons we affirm the judgment of the trial court in part, and reverse and render in part.

The record reflects that on February 8, 1978, a dwelling house at 822 North Mont-clair, Dallas, Texas, sustained fire damage. The dwelling was owned by Bob and Pamela Newton and Fort Worth Mortgage Corporation was the dwelling mortgagee. The house was insured by Cambridge Mutual under a Texas standard homeowners broad-form insurance policy. The relevant provisions of the Texas standard homeowners broadform insurance policy are as follows:

“DECLARATIONS OF THE INSURED:
2. The above premises of the described dwelling are the only premises where the Named Insured or spouse maintains a residence, other than business property and farms.
PROPERTY INSURED
COVERAGE A — Dwelling, as described on Page 1 of this policy, while occupied by the Insured principally for dwelling purposes.
VACANCY. If the Insured ceases to reside in the described dwelling and the unscheduled personal property or a substantial portion thereof is removed therefrom, the dwelling shall be deemed vacant and the coverage applicable to said dwelling as provided under Section 1 of this policy and all coverage under the Dwelling Extension shall be suspended effective 60 days after date of removal of such unscheduled personal property and remain suspended during such vacancy.”

Bob Newton testified that, at the time of the fire, he and his wife were in Aztec, New Mexico assisting a relative with his business. He stated that they traveled to New Mexico in September 1977, at the request of this relative and moved into his trailer home on a temporary basis. Approximately 80% of their unscheduled personal property was left in the insured premises. Mr. Newton agreed to allow David Bright, a family friend, to occupy the dwelling. Bright promised to make the mortgage payments when he could. When Bright was unable to make two of the mortgage payments, the Newtons made them. Mr. Newton maintained that he retained the right of immediate possession to the dwelling and, on one occasion, returned to the residence during Bright’s occupancy. On the day preceding the fire, Bright abandoned the insured dwelling and absconded with a portion of the Newtons’ personal property. Mr. Newton stated that it was not until after they had learned of the fire that he and his wife decided to permanently change their residence to New Mexico.

Cambridge Mutual first contends that it is not liable to the Newtons under the terms of the policy. First, it claims that, as a matter of law, the residence was not occupied by the insured principally for [79]*79dwelling purposes at the time of the fire. It reasons that since the Newtons had moved to New Mexico in September 1977, the insured dwelling was not the only premises where the Newtons maintained a residence. Consequently, the dwelling extension provision of the policy was violated. In support of this argument Cambridge Mutual cites Bryan v. United States Fire Insurance Company, 456 S.W.2d 702 (Tex. Civ. App.—Corpus Christi 1970, writ ref’d n.r.e.) and Fisher v. Indiana Lumberman’s Mutual Insurance Company, 456 F.2d 1396 (5th Cir. 1972). We find that these cases are distinguishable from the instant case and thus reject Cambridge Mutual’s contention.

In Bryan, the insured sued on a Texas standard farm and ranchowners policy for recovery of fire damage to the insured dwelling. The evidence established that the insured and his wife had moved from the dwelling approximately four months prior to the fire loss. Upon vacating the premises, Bryan arranged to lease the dwelling to a third party under a month-to-month tenancy. Most of the Bryans’ personal property remained in the dwelling until the time of the fire. Although Bryan continuously demanded rental payments, the lessee never remitted same. After the fire, Bryan filed two sworn proof of loss statements with the insurance company asserting that the insured premises was occupied as a tenant dwelling and for no other purpose. Bryan testified that he had intended to move back into the insured dwelling, but had not done so at the time of the fire. On these facts the Corpus Christi Court of Civil Appeals held that, as a matter of law, the insured was not occupying the house principally for dwelling purposes at the time of the fire.

Fisher also concerned a ease brought under a Texas standard homeowners broad-form insurance policy. Prior to the fire the insured dwelling was undergoing extensive repairs in preparation for eventual occupancy by the insured. At the time of the fire the insured was living in another house several miles away and, by his own admission, he intended to move into the new house only after its renovation. In holding that the insured house was not occupied principally for dwelling purposes at the time of the fire, the United States Court of Appeals for the Fifth Circuit concluded that “[UJnder such circumstances Texas law clearly prescribes that by the explicit terms of the policy no liability for the loss ever arose (citing Bryan v. United States Fire Insurance Company, supra). Fisher v. Indiana Lumberman’s Mutual Insurance Company, supra at 1398.

Unlike Bryan the Newtons never declared that the insured premises was a tenant dwelling. They never entered into a formal rental agreement with a third party. Rather, Bright functioned as the caretaker of the insured dwelling, making the mortgage payments if he could. Additionally, the Newtons were free to continue to reside at the insured premises at all times. In fact, Mr. Newton returned to the house on one occasion during Bright’s occupancy. In contradistinction to Fisher, the Newtons had previously occupied the insured dwelling as their residence.

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Cambridge Mutual Fire Insurance Co. v. Newton
638 S.W.2d 75 (Court of Appeals of Texas, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
638 S.W.2d 75, 1982 Tex. App. LEXIS 4845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cambridge-mutual-fire-insurance-co-v-newton-texapp-1982.