Farmers Home Mutual Fire Insurance v. Bank of Pocahontas

129 S.W.3d 832, 355 Ark. 19, 2003 Ark. LEXIS 624
CourtSupreme Court of Arkansas
DecidedNovember 20, 2003
Docket03-408
StatusPublished
Cited by8 cases

This text of 129 S.W.3d 832 (Farmers Home Mutual Fire Insurance v. Bank of Pocahontas) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers Home Mutual Fire Insurance v. Bank of Pocahontas, 129 S.W.3d 832, 355 Ark. 19, 2003 Ark. LEXIS 624 (Ark. 2003).

Opinion

Tom Glaze, Justice.

Appellant Farmers Home Mutual Fire Insurance Company (“Farmers”) has petitioned for review from a court of appeals opinion affirming the trial court’s ruling in favor of the appellee Bank ofPocahontas (“the Bank”). We are asked to interpret the phrase “on demand” in a standard mortgage clause in a home insurance policy.

The facts are as follows: Donna Hawkins obtained a mortgage loan from the Bank in order to purchase a home. The Bank approved the loan and issued a standard real estate mortgage that required an insurance policy naming the Bank as loss payee. Hawkins obtained an insurance policy through Farmers; the policy contained a mortgage and loss payable clause in favor of the Bank. In 1998, Hawkins mailed in her premium check to Farmers, but the check was returned marked “insufficient funds.” On May 26, 1998, Farmers sent Hawkins and the Bank a letter advising that Farmers would deposit the check again on May 31, 1998.

When Farmers redeposited the check, it bounced again. At that time, Farmers sent Hawkins and the Bank another letter, dated June 9, 1998, stating that the purpose of the letter was “to advise in writing that this policy has lapsed in coverage due to nonpayment of premium.” The letter went on to state that the policy could be reinstated provided that Hawkins submitted a money order or cashier’s check for the appropriate amount. Further, the letter informed Hawkins and the Bank that “[i]f no response has been received on or before June 18, 1998, we will assume that this coverage is not desired and all coverage will terminate permanently.” On June 23, 1998, Farmers wrote again to Hawkins, the mortgagor, and the Bank, the mortgagee, to “advise in writing that all coverage did terminate permanently on June 18, 1998.”

Hawkins’s home was entirely destroyed by fire on September 27, 1998. On October 12, 1998, Farmers notified the Bank that it would not pay the claim, contending that the insurance policy had been cancelled. The Bank made a demand on Farmers to satisfy the mortgage on the insured premises, and Farmers persisted in its refusal to pay the claim. As a result, the Bank sued Farmers, alleging that Farmers should be required to pay because (1) the Bank never received Farmers’ notice of cancellation, (2) the notice did not comply with the terms of the policy, and (3) Farmers never made a “demand” for payment from the Bank. In the alternative, the Bank argued that even if the notice was proper, and Farmers had effectively cancelled the policy on June 18, 1998, the policy was reinstated on June 29, 1998, via an “amended coverage endorsement” issued by Farmers.

At a bench trial, the trial court found in the Bank’s favor, and awarded the Bank $23,500, plus a 12% penalty and $4,000 in attorney’s fees. The court disagreed with the Banks’ argument that it had not been properly notified of the cancellation, finding that there was sufficient evidence that the notice of cancellation had been mailed to the Bank. However, the court found that Farmers never made a “demand” on the Bank for payment, in accordance with the terms of the policy. The court rejected Farmers’ argument that the policy language regarding a demand permitted Farmers to make demand only on Hawkins and not the Bank. The court reasoned that “at the least,” the policy language was ambiguous, which required resolution in favor of the insured. The court further provided that, notwithstanding the above arguments, it would otherwise find that coverage existed on the property, because of a “declarations of coverage” page that had been generated by Farmers, which appeared to indicate that coverage on Hawkins’s property was still in effect. From the court’s holdings, Farmers appeals and raises three points.

In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002). Disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. Ford Motor Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).

Arkansas’ law regarding the construction of an insurance contract is well-settled. The language in an insurance policy is to be construed in its plain, ordinary, popular sense. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002); Elam v. First Unum Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001); Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). On the other hand, if the language is' ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Harasyn, supra. Whether the policy language is ambiguous is a question of law to be resolved by the court. Norris, supra.

The mortgage clause of the insurance policy issued to Donna Hawkins contained the following relevant policy language regarding the mortgagee:

This clause applies only to the mortgagee ... and does not affect the insured’s rights or duties under this policy. Loss, if any, under this policy, shall be payable to the mortgagee.. .named on the Declarations page of this policy, as interests may appear, under all present or future mortgages upon the property herein described in which the aforesaid may have an interest as mortgagee ... , in order of precedence of said mortgages, and this insurance as to the interest of the mortgagee ... only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property ...; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee . . . shall, on demand, pay the same. (Emphasis added.)

This language constitutes a so-called “standard mortgage clause.” Both this court and the court of appeals have held that, generally, a standard mortgage clause serves as a separate contract between the mortgagee and the insurer, as if the mortgagee had independently applied for insurance. Dalrymple v. Royal-Globe Ins. Co., 280 Ark. 514, 659 S.W.2d 938 (1983); Columbia Mut. Ins. Co. v. Home Mut. Fire Ins. Co., 74 Ark. App. 166, 47 S.W.3d 909 (2001).

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Bluebook (online)
129 S.W.3d 832, 355 Ark. 19, 2003 Ark. LEXIS 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-home-mutual-fire-insurance-v-bank-of-pocahontas-ark-2003.