First Southwest Lloyds Insurance Co. v. MacDowell

769 S.W.2d 954, 1989 Tex. App. LEXIS 827, 1989 WL 36886
CourtCourt of Appeals of Texas
DecidedApril 11, 1989
Docket9688
StatusPublished
Cited by43 cases

This text of 769 S.W.2d 954 (First Southwest Lloyds Insurance Co. v. MacDowell) 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
First Southwest Lloyds Insurance Co. v. MacDowell, 769 S.W.2d 954, 1989 Tex. App. LEXIS 827, 1989 WL 36886 (Tex. Ct. App. 1989).

Opinion

BLEIL, Justice.

First Southwest Lloyds Insurance Company appeals an adverse judgment on the verdict in a suit filed by James and Pauline MacDowell on a fire insurance policy. The MacDowells sued First Southwest to collect on their policy when it refused their claim, alleging arson. First Southwest contends that the trial court erred in excluding evidence of an earlier fire on other property owned by the MacDowells, and that because the MacDowells failed to secure jury findings regarding the proof of loss requirement, they are precluded from recovery on the policy. We resolve these contentions in favor of the MacDowells and affirm.

On December 22,1985, fire destroyed the Armstrong-McCall Beauty Supply Company in Paris, which was located in a building leased to the MacDowells. First Southwest insured the contents. Kenneth Bit-ting, a licensed engineer and certified arson investigator employed by First Southwest, investigated the fire and concluded that it was incendiary in nature. Rick Evans, the City of Paris fire marshal, agreed with Bitting that the fire was set and testified that, in his opinion, the MacDowells had set the fire. The MacDowells’ arson expert, Jerry Gilmore, disagreed, and testified to three possible causes of the fire: an electrical mishap in the central heating room, a defect in the central heating unit, or an improper storage of combustible materials in the heating closet.

First Southwest contends that the trial court erred in refusing to admit evidence of a fire at the MacDowells’ rental property in Fort Worth, which occurred eight months before the fire at their beauty supply business. First Southwest sought to establish the incendiary nature of the Fort Worth fire and the MacDowells’ connection to that fire. The trial court excluded this evidence. Generally, evidence of other wrongs or acts is not admissible to prove the character of a person to show that he acted in conformity therewith on a particular occasion. Tex.R.Civ.Evid. 404(a). Prior acts or transactions by one of the parties with other persons are irrelevant, immaterial and highly prejudicial. Tex. Farm Bur. Mut. Ins. Co. v. Baker, 596 S.W.2d 639, 643 (Tex.Civ.App.-Tyler 1980, writ ref’d n.r.e.). Evidence of other wrongs or acts may be admissible, however, to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R.Civ. Evid. 404(b). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Civ.Evid. 403.

In its offer of proof, First Southwest produced M.J. Standridge of the City of Fort Worth fire department, who testified that he believed the Fort Worth fire to be incendiary, giving the following bases: 1) a certain type of pipe used in the plumbing, ordinarily flame resistant, was obliterated, suggesting that a flammable liquid had been poured down the drain; 2) there was no reason to believe that the fire was electrical in origin because the house was vacant and the electricity was off; and 3) the physical evidence suggested many points of origin of the fire. The evidence linking the MacDowells to the fire at their Fort Worth property consists of statements made to *957 Standridge by the neighbor who reported the fire. The neighbor told Standridge that Mrs. MacDowell had visited the Fort Worth property the day before the fire and the morning of the fire. No arson charges were filed against the MacDowells.

In addition to Standridge’s testimony, First Southwest offered the testimony of James Hall, Aetna’s arson investigator. Hall agreed with Standridge’s conclusion that the fire was incendiary for two reasons. First, the pipe which had melted requires heat of 1140 degrees, indicating the use of a fire accelerant. Second, Hall identified pour patterns of a fire acceler-ant. He testified that use of a fire acceler-ant indicates that the fire did not arise accidentally.

In Tex. Farm Bur. Mut. Ins. Co. v. Baker, 596 S.W.2d 639, a case factually similar to the one before this Court, homeowners sued to collect on a fire insurance policy when their insurer denied their claim, alleging arson. The trial court excluded evidence concerning a previous fire loss suffered by the homeowners. The appellate court upheld the exclusion of evidence of the prior fire for these reasons: 1) there was no evidence of any wrongdoing connected with the fire; 2) the homeowner’s insurance agent was informed of the fire when the policy in question was purchased; 3) the prior fire was remote in time; 4) the prior fire was an isolated event rather than one of several in a continuing scheme; and 5) the prejudicial effect of the evidence of the prior fire outweighed its relevancy. Tex. Farm Bur. Mut. Ins. Co. v. Baker, 596 S.W.2d at 643. In short, the insurance company failed to show a sufficient nexus between the prior fire and the fire in question.

Here, the evidence fails to conclusively establish any wrongdoing on the part of the MacDowells regarding the Fort Worth fire. No criminal charges were filed against them. No litigation regarding the fire resulted between the MacDowells and Aetna. The only evidence linking the Mac-Dowells to the Fort Worth fire is the testimony of Standridge, who related the neighbor’s remark regarding Pauline MacDo-well's visit to the property on the date of the fire. The trial court could have properly determined that an insufficient nexus links the Fort Worth fire to the beauty supply fire, and that the prejudicial effect of admitting evidence of the Fort Worth fire would have outweighed its relevancy. We therefore find no error in the trial court's exclusion of the evidence.

First Southwest also maintains that the trial court erred in excluding testimony by Rick Evans, the Paris fire marshal, concerning a report by an eyewitness of the beauty supply fire, which report served as a partial basis for his conclusion that the fire was incendiary. While the trial court allowed Evans to state that an eyewitness account of the fire by Tommy Hudspeth contributed to his conclusion that the fire was incendiary, it refused to allow Evans to recount before the jury what Hudspeth had told him, namely that he had seen the fire begin from a nightclub across the street from the beauty supply and that a white male ran from the front of the beauty supply and sped away in a vehicle.

First Southwest contends that all testimony by Evans regarding Hudspeth’s eyewitness account, related to him, is admissible under Tex.R.Civ.Evid. 703 and 705, because it partially formed the basis for Evans’ expert opinion. First Southwest interprets these rules to allow disclosure of Hudspeth’s eyewitness account by Evans on direct examination, because Evans’ testimony establishes that arson investigators routinely and reasonably rely upon eyewitness accounts in forming their opinions.

Rule 703 provides that:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Rule 705 provides that:

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Cite This Page — Counsel Stack

Bluebook (online)
769 S.W.2d 954, 1989 Tex. App. LEXIS 827, 1989 WL 36886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-southwest-lloyds-insurance-co-v-macdowell-texapp-1989.