Foster v. Blue Ridge Insurance

377 So. 2d 500, 1979 La. App. LEXIS 3315
CourtLouisiana Court of Appeal
DecidedNovember 12, 1979
DocketNo. 7142
StatusPublished
Cited by1 cases

This text of 377 So. 2d 500 (Foster v. Blue Ridge Insurance) 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
Foster v. Blue Ridge Insurance, 377 So. 2d 500, 1979 La. App. LEXIS 3315 (La. Ct. App. 1979).

Opinion

CULPEPPER, Judge.

This is a suit for benefits under a homeowner’s insurance policy. Plaintiff, Louis Foster, alleges items of personal property were stolen from his camp house. Defendant, Blue Ridge Insurance Company, denies coverage on the basis of a policy exclusion. The trial court granted judgment for plaintiff. Defendant appeals.

The sole issue on appeal is the correctness of the trial court’s finding that plaintiff was “temporarily residing” at his camp at the time of the loss.

The homeowner’s policy described only plaintiff’s home in Mansura. Plaintiff also owned a camp on Little River in Avoyelles Parish, which was not a described property in the policy.

The policy in question provides in Paragraph C of the General Theft Exclusions as follows:

“This policy does not apply to loss away from described premises of:
“(1) Property not in any dwelling or premises thereof owned, rented or occupied by an insured, except while an insured is temporarily residing therein.”

The parties to the present suit accept as correct, and we agree, that the above quoted exclusion clause was correctly construed in Bryan v. Granite State Insurance Company, 185 So.2d 310 (4th Cir. 1966). In that case, the homeowner’s policy described the insured premises as a home near Lacombe, Louisiana. The insured rented an apartment in New Orleans as a place to spend the night from time to time when they went to the city for social gatherings, visits, etc. The apartment was burglarized, resulting in the loss of jewelry, clothing, etc. Plaintiffs had not visited the apartment for at least four days prior to the burglary. Holding that the loss was not covered under the policy, the court stated:

“The policy exclusion is plain and free from ambiguity. The policy does not cover temporary residences per se and in all events. It covers thefts from premises other than the described premises only “while an insured is temporarily residing therein.” To hold that the policy covers temporary residences per se, as plaintiffs contend, would be to read out the plain and unequivocal language of the policy, and to read into it something that is not there at all.
We shall not attempt to define the phrase “residing in.” Its meaning is plain. A person who maintains a permanent abode in New Orleans may own or lease a “temporary residence” on the Gulf Coast which he occupies during the summer months, but he cannot be said to be “residing therein” at a time when he is not occupying the place but is living in the home in New Orleans. As a matter [DLXXXII]*DLXXXIIof fact a person may have several cottages, camps or other places of residence in addition to the premises described in the policy which he may occupy from time to time, but he cannot “reside in” all of them at the same time.”

In the present case, the camp, a fully furnished three bedroom structure, was used regularly by plaintiff and his sons and nephews for hunting and fishing. He also entertained business clients at the camp. Occasionally, he spent four or five days at a time there. Plaintiff’s work schedule, as an insurance agent, was such that he went to the camp during the week as well as on weekends.

Plaintiff was the only witness at trial who testified as to his use of the camp at the time of the loss. He stated that he had been at the camp for a weekend “plus a few days.” After returning home, he received a call from a Leonard Luneau informing him that an outside butane tank at the camp was missing. He did not investigate the report until that same evening, because he had intended to return to the camp that evening anyway. Upon arriving at the camp, he discovered that the door to the camp had been “busted open” and all of the furniture and furnishings removed. Plaintiff was unable to recall whether he reported the theft that night or the next morning. He was sure, however, that he did make a report on one of those two occasions. He also said that, as best he could recall, it seemed like there might have been two or three days between his call and an actual investigation. The plaintiff stated throughout his testimony that he was unable to be specific about dates.

The defendant disputes the above version of the facts, contending that plaintiff’s trial testimony is inconsistent with information contained in a statement made to defendant’s insurance adjustor on July 27, 1978 and in plaintiff’s deposition, taken on November 29, 1978. Defendant submits these records as evidence that plaintiff had not been at his camp since the weekend before the theft and did not discover the theft until he returned on the weekend following a whole week away from the camp.

In support of this position, the defendant relies on the following language contained in plaintiff’s July 27 report of the loss to defendant:

“. . . There was no one occupying the camp house at the time the theft occurred. I first discovered that my camp had been broken into about 4 or 5 days later when I went back out . .” (Emphasis supplied)

Defendant also points to the following from plaintiff’s deposition:

“Q. Okay. When was the last time you’d been to your camp before the loss. Do you remember?
A. The week — the week-end before that.
Q. And this was on a week-end when you went the first time?
A. Larry, I don’t know—
Q. Was it a week—
A. It was about a week, you know, week before that.”

The briefness of the above statements makes it difficult to consider them conclusive. The issue of plaintiff’s presence at the camp received only slight attention at the deposition, which was primarily concerned with a value estimate of loss. Furthermore, the July adjustor’s report was not actually written down by the plaintiff. The signatures on the report show that the adjustor wrote the statement for plaintiff to sign. There is a possibility that the report does not accurately reflect plaintiff’s words or meaning. The language of the July report is strikingly similar to language used at trial, from which another meaning may be drawn.

At trial, the plaintiff stated:

. . quite often I go out there at least once or twice a week, sleep in over there, go fishing, go hunting from that particular location and every once in a while I would spend three, four or five days at a time out there. On this particular occasion is that I had spent that amount of time out there and then when I went back on the fourth or the fifth day [DLXXXIII]*DLXXXIIII noticed that my tank, . . was gone.” (Emphasis supplied)

In both the July report and at trial, the plaintiff stated that he “went back” to the camp within four or five days. But the more lengthy trial response indicates that the return occurred on the last of four or five consecutive days at the camp and not after an interruption of four or five days elsewhere.

While defendant is correct in arguing that plaintiff’s testimony at trial is frequently confusing, one thing that remains consistent throughout the testimony is the reference to a number of consecutive days residing at the camp, followed by the discovery of the theft.

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Bluebook (online)
377 So. 2d 500, 1979 La. App. LEXIS 3315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-blue-ridge-insurance-lactapp-1979.