Childs v. Zurich American Ins. Co.

476 So. 2d 403
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1985
Docket17131-CA, 17132-CA
StatusPublished
Cited by10 cases

This text of 476 So. 2d 403 (Childs v. Zurich American Ins. 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
Childs v. Zurich American Ins. Co., 476 So. 2d 403 (La. Ct. App. 1985).

Opinion

476 So.2d 403 (1985)

Huey P. CHILDS, Huey Childs Builder, Inc., Appellant,
v.
ZURICH AMERICAN INSURANCE COMPANY, et al., Appellee.

Nos. 17131-CA, 17132-CA.

Court of Appeal of Louisiana, Second Circuit.

September 25, 1985.
Writ Denied December 20, 1985.

*404 Campbell, Campbell & Johnson by James M. Johnson, Minden, for Huey P. Childs.

Bienvenu, Foster, Ryan & O'Bannon, by David E. Walle, New Orleans, for Zurich.

Kennedy, Goodman & Donovan, by John M. Frazier, Shreveport, for Alexander & Alexander, Inc.

Before HALL, SEXTON and NORRIS, JJ.

NORRIS, Judge.

Plaintiffs Huey P. Childs and Huey Childs Builder Inc. (the "corporation") appeal from a judgment in favor of defendant, American Guaranty Ins. Co., rejecting demands for fire insurance proceeds based on the defense of arson. The trial court, in an excellent and well considered written opinion, concluded the evidence preponderated to show the fire was of incendiary origin, that plaintiff had motive to burn his residence or have it burned, and that there was no other reasonable hypothesis but that plaintiff was responsible for the fire. Plaintiffs contend on appeal the trial court was clearly wrong in holding that the insurer had satisfied its burden of proof. Finding no manifest error in the trial court's factual conclusions, we affirm for the reasons set forth by the trial court, which we adopt in full but restate for the purpose of brevity.

FACTS

On the morning of September 12, 1980, the new home of housebuilder Huey P. Childs was destroyed by fire. Located on a rural lot on scenic Black Bayou in eastern Bossier Parish, the house was Mr. and Mrs. Childs' "dream home," large, comfortable and well appointed. The actual owner of the house was the corporation, which was closely held and wholly owned by Mr. and Mrs. Childs. Mr. Childs had actively directed and participated in the building effort, providing his services without charge to the corporation; since he and his wife had completed the home and moved in late in 1979, he was planning to transfer the title to himself very soon, when interest rates were more favorable. In an issue that is not before us on appeal, the trial court found that Mr. Childs had an insurable interest in the house. See LSA-R.S. 22:614 B.

Mr. Childs minutely reconstructed the activities of everyone in his family on the day of the fire. The night before, he and Mrs. Childs had stayed in the house along with their daughter Becky and their grandson, Todd. Early on the morning of the fire, Becky's husband, David Emerson, came by the Childs' home for coffee. David Emerson left first, heading for his job in Shreveport. Mr. Childs left briefly to drive an employee to a construction site; he returned quickly. Becky then left with Todd; she first dropped off Todd at school and then proceeded to her job in Bossier City. At 7:45, Mr. and Mrs. Childs left in their separate cars. Before leaving, Mrs. Childs testified she made sure all the appliances were turned off, the house was securely locked, and then activated the alarm system.

The burglar alarm system merits attention. It consisted of two separate units. First was the perimeter unit that connected all the windows and doors in the residence; if any of them was opened, an alarm would sound not only at the house but also at the office of the system's installer, Skyco. Skyco received no alarm that morning. Next was the backup unit. It consisted of an activator alarm under the carpet in the hall. The backup had separate controls from the perimeter unit and Mrs. Childs recalls not activating the backup that *405 morning. Her testimony at trial was the first time she mentioned not activating the carpet alarm system. The perimeter unit, however, was activated, and was apparently in working order. The perimeter unit could be deactivated by a combination that was known only to Mr. and Mrs. Childs. Likewise, only they had keys to the house.

When he left the house, Mr. Childs proceeded to the construction site where he was building a new home for his daughter and son-in-law, the Emersons. Mrs. Childs ran some errands and then went to the Emerson job site. Mrs. Childs and one of Mr. Childs' employees then proceeded in their separate vehicles back to the Childs' home to get some additional supplies. This was when she discovered the fire. She summoned the firemen, who were unable to contain the blaze; the firemen testified that the fire burnt remarkably fast for a new house. It was a total loss.

In addition to the testimony of Mr. and Mrs. Childs, their family members and the construction workers, there was the testimony of two high school students who were waiting for a bus at a nearby bus stop. At about 8:05 a.m., they saw a man running through the woods, away from the Childs residence. He jumped into a maroon pickup truck with a side stripe and shielded his face as he drove off. Mr. Childs' son-in-law, David Emerson, owned a pickup truck very similar to the one described; however, one of the boys said he knew Emerson and recognized that neither the fugitive nor the truck was Emerson or Emerson's. The other boy testified the truck was indeed similar in appearance to Emerson's truck.

After the area cooled, Mr. and Mrs. Childs began sifting through the rubble. They found a decorative table safe which they testified had contained jewelry and money. The Childs further testified the safe was open and some of the contents were found scattered and charred, but much was never recovered. Other evidence, however, indicated the safe had not in fact been forcibly opened. Other valuables, such as guns and silverware, located in other parts of the house, were not touched.

The day after the fire, the insurer, American Guaranty and Liability Ins. Co.,[1] began a thorough examination. A chemical analysis of the debris showed that accelerants had been planted in several locations in the house. A forensics expert said the ashes contained traces of volatile hydrocarbons such as kerosene. He also observed irregular burn patterns and "spalling" of the concrete slabs, all indicative of an incendiary fire. An arson investigator found melted copper tubing; this, he said, was unlikely in a natural fire, which seldom attains temperatures of over 1300°; with accelerants, however, a fire can easily reach the requisite 2000°" needed to melt copper. He also noted the rapidity with which the house burned according to Mrs. Childs' testimony as further indication of the use of accelerants. There was no evidence that the fire was due to faulty wiring. All these findings led the insurer to conclude that the fire was incendiary. Thus the insurer refused to pay the proceeds, asserting the defense of arson. After trial, the trial court had no difficulty confirming this conclusion which, from our review of the evidence, is not clearly wrong. In fact, appellants virtually concede the incendiary origin of the fire and make no issue of this factual conclusion on appeal.

The insurer next asserted that Mr. Childs had a motive to destroy his home. The evidence on this point is so voluminous that it almost defies brief summary. Mr. Childs' financial position was very unenviable at best. Like all homebuilders at the time, he had suffered business reverses. The corporation's gross receipts had declined from over $800,000 in 1978 to $184,132 in 1980. The corporation's 1981 figure, reckoned on a fiscal year, was zero. Mr. Childs' personal income had also plummeted. In 1978, he earned over $50,000 from his business; in 1980, it was not quite *406 $18,000. The 1981 income is listed at $9,186.

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476 So. 2d 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childs-v-zurich-american-ins-co-lactapp-1985.