Hughes v. Nationwide Mutual Fire Ins.

56 Va. Cir. 313, 2001 Va. Cir. LEXIS 464
CourtNorfolk County Circuit Court
DecidedAugust 8, 2001
DocketCase No. (Law) L00-1272
StatusPublished

This text of 56 Va. Cir. 313 (Hughes v. Nationwide Mutual Fire Ins.) is published on Counsel Stack Legal Research, covering Norfolk County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hughes v. Nationwide Mutual Fire Ins., 56 Va. Cir. 313, 2001 Va. Cir. LEXIS 464 (Va. Super. Ct. 2001).

Opinion

By Judge Marc Jacobson

In the instant action, Ann Hughes and Nationwide Mutual Fire Insurance Company have stipulated that Plaintiff was traveling by airplane from the City of Norfolk to Palm Beach, Florida, on July 25, 1998. See Defendant’s Letter Dated February 22, 2001, (Defendant’s Letter), at 1. On that date, Plaintiff checked in at the Delta Airlines counter at the Norfolk Airport with her daughter, where both women checked one piece of luggage each and received sequentially numbered claim receipts for the bags. See id. When the women’s flight arrived in Florida, neither bag arrived with the flight. See id. Plaintiffs daughter’s bag arrived on a subsequent flight, but to date, Plaintiff s bag has not been located or found. See id.

As a result of the loss, Plaintiff has initiated suit against Defendant under the homeowner’s insurance policy issued by Defendant in favor of Plaintiff that was in effect at the time of the loss (Policy). Plaintiff has sued for the value of the bag and its contents, claiming that the loss was covered because the Policy insured Plaintiffs loss against “theft, including attempted theft” as well as “[l]oss of property from a known location when it is likely the property was stolen.” See Policy at 7. The parties have stipulated to the estimated value of the bag and its contents, and the sole issue remaining to be decided at this juncture is whether Plaintiff can recover for the loss of the bag under the aforementioned theft provisions of the Policy. Plaintiff contends that the circumstances under which her bag disappeared indicate the probability of [314]*314theft, or, at the very least indicated the “loss of property from a known location when it is likely the property was stolen” and she is therefore covered for the loss. Defendant contends that the circumstances indicate a mere “disappearance” of the luggage, a circumstance of loss for which Plaintiff has no coverage by Defendant. The parties agree that the policy contains no inclusion nor exclusion of coverage for a “mysterious disappearance” as is found in many insurance contracts.

Counsel for both parties have orally argued their respective positions before the Court and have submitted authority to the Court in support of their respective positions. Counsel for both parties have examined and submitted only one and the same authority to this Court, the case of Travelers Indemnity Co. v. Universal Time, Inc., 430 So. 2d 987 (Fla. App. 3 Dist. 1983), in which case an appellate court in Florida ruled that a litigant in circumstances somewhat like Plaintiffs could not recover under a similar contract. The court noted that “[i]t simply cannot be said that an airline’s mere nondelivery of a checked piece of luggage, without more, may more rationally be attributed to its having been stolen rather than lost or mislaid.” See id. The Florida court, in making this determination, examined a North Carolina case in which a plaintiff sought to recover under a similar provision for a missing piece of jewelry. See Adler v. Lumber Mutual Fire Ins. Co., 280 N.C. 146, 185 S.E.2d 144 (1971). In that case, the court noted that the evidence indicated plaintiff last saw the jewelry on her nightstand and that there was no other indication of what ultimately happened to the item. See id. The court held that the plaintiff had offered no evidence to show the likelihood of theft, and, therefore, the loss was not covered by the policy. See id.

Although the parties suggest that there is no direct precedential case law on this issue, it appears that cases from other jurisdictions do address the issue. For example, in Manopla v. Travelers Ins. Co., 525 N.Y.S.2d 997, 139 Misc. 2d 30 (1988), the New York City Civil Court examined a claim very similar to Plaintiffs. There, the plaintiff had failed to recover his luggage from a flight from New York to Mexico City and sued his homeowner’s insurance company for the loss. The applicable provision allowed coverage for “lost property when the probability of theft exists.” See id. The court noted “Plaintiff is not required to produce evidence to show that the property was, in fact, stolen but rather, proof to show that the loss was more likely than not caused by theft.” See id. Plaintiff offered at trial a letter from the Mexican Airline stating that since the luggage had not been found within six months, it was most likely stolen. The court ruled that this declaration was sufficient to prove that the luggage was probably stolen, even though no other evidence of theft was ever adduced.

[315]*315In the case of Watkins v. Nationwide Mutual Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966), the Georgia Court of Appeals examined a case where the plaintiff sued her homeowner’s insurance carrier to recover for lost items from her suitcases. There, the plaintiff was staying in a hotel in Turkey when she packed her suitcase for a flight to Rome. She checked her bags with the airline, and when she arrived at her destination, the jewelry packed in her suitcase was missing. There was no evidence to suggest what happened to the jewelry, only that her suitcases were left unattended both during the plaintiffs breakfast in Turkey and while on the plane to Rome. In order to recover, the plaintiff had to show under her policy that the jewelry had been lost during the commission of the burglary of her hotel room in Turkey. In reversing the lower court’s grant of summary judgment to the defendant, the court held that although the petition contained alleged facts suggesting both burglary and a disappearance other than by burglary, the question of what happened to the jewelry was ultimately a fact for the jury. See id.

In Delta Air Lines, Inc. v. Barnard II, 2001 Ala. Civ. App. LEXIS 185 (Ala. Civ. App. May 4, 2001), an appellate court in Alabama examined the plaintiffs claim for the loss of his golf clubs when traveling by air. The plaintiff sued the airline for conversion and breach of the parties’ contract of carriage, and he recovered a judgment at trial. See id. Although the judgment was later reversed and remanded on preemption grounds,1 Barnard is illustrative in that its facts are quite similar to those of the instant case. The plaintiff checked his luggage at the Brunswick, Georgia, airport for his flight to Mobile, Alabama. His golf clubs were stored in a hard-plastic carrying case, and each club bore a sticker showing his name, address, and telephone number. A sticker and an identification tag were also placed on the hard case. Like Ms. Hughes, Barnard “actually watched the ticket agent push the hard-case carrier into the luggage chute that opened directly onto the tarmac.” Id. at *5. When Barnard arrived at the Mobile airport, he went to retrieve his luggage. Upon discovering that the case containing his golf clubs had not arrived, he immediately filed a “Lost Bag Claim.” Id.

[316]*316In BarnardII, Delta’s system for storing and tracking passengers’ luggage is very similar to that in the instant case.

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Related

Adler v. Lumber Mutual Fire Insurance Company
185 S.E.2d 144 (Supreme Court of North Carolina, 1971)
Delta Air Lines, Inc. v. Barnard
799 So. 2d 208 (Court of Civil Appeals of Alabama, 2001)
Libralter Plastics, Inc v. Chubb Group of Insurance Companies
502 N.W.2d 742 (Michigan Court of Appeals, 1993)
Lovas v. St. Paul Insurance Companies
240 N.W.2d 53 (North Dakota Supreme Court, 1976)
Watkins v. Nationwide Mutual Fire Insurance
149 S.E.2d 749 (Court of Appeals of Georgia, 1966)
Manopla v. Travelers Insurance
139 Misc. 2d 30 (Civil Court of the City of New York, 1988)
Travelers Indemnity Co. v. Universal Time, Inc.
430 So. 2d 987 (District Court of Appeal of Florida, 1983)

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Bluebook (online)
56 Va. Cir. 313, 2001 Va. Cir. LEXIS 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-nationwide-mutual-fire-ins-vaccnorfolk-2001.