Nationwide Mutual Fire Insurance Co. v. Citizens Bank & Trust Co.

2014 Ark. 20, 431 S.W.3d 292
CourtSupreme Court of Arkansas
DecidedJanuary 23, 2014
DocketCV-13-333
StatusPublished
Cited by11 cases

This text of 2014 Ark. 20 (Nationwide Mutual Fire Insurance Co. v. Citizens Bank & Trust Co.) 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
Nationwide Mutual Fire Insurance Co. v. Citizens Bank & Trust Co., 2014 Ark. 20, 431 S.W.3d 292 (Ark. 2014).

Opinion

DONALD L. CORBIN, Justice.

|, Appellant, Nationwide Mutual Fire Insurance Company, appeals the order of the Crawford County Circuit Court granting summary judgment to Appellee, Citizens Bank & Trust Company, on Appellee’s complaint for wrongful denial of its claim as a named mortgagee and additional insured on a dwelling fire policy. Appellant contends that the circuit court erred as a matter of law because Appellant’s rescission of the fire policy due to the insureds’ fraud voided ab initio the policy. The Arkansas Court of Appeals certified this case to us as one involving an issue of first impression that is of significant public interest; jurisdiction is therefore properly in this court pursuant to Arkansas Supreme Court Rule 1—2(b)(1), (b)(4), and (d)(2) (2013). We find no error in the circuit court’s order granting summary judgment to Appellee, and we affirm.

This case was decided on cross-motions for summary judgment, and the parties stipulated jointly to the following facts. Danny Ludwick completed an application and ^supplemental application for insurance coverage from Appellant on a home located in Van Burén, Arkansas. Appellant relied on the information in the application and supplemental application, and issued a policy insuring the dwelling and its contents for the period May 6, 2009, through May 6, 2010. The policy in question named Appellee as the “First Mortgagee” and contained a standard mortgage clause. The dwelling was destroyed by fire on December 16, 2009, and Appellee had a valid mortgage on the dwelling at the time of the application and at the time of the fire.

The parties jointly stipulated further to the following facts. During Appellant’s investigation of the fire, Appellant learned of two previous fire losses sustained by Danny and Tracy Ludwiek that were not disclosed on their application and supplemental application for insurance. Appellant’s underwriting department determined that, according to Appellant’s underwriting guidelines, Appellant would not have issued the policy in question if the two undisclosed fire losses had been disclosed at the time the Ludwicks submitted their application. Based on the material misrepresentations in the application and supplemental application, Appellant voided the policy back to its inception and refunded the premiums paid by the Ludwicks.

The parties jointly stipulated still further to the following. Appellee submitted a timely claim to Appellant. Appellant denied Appellee’s claim, not on the basis of a policy exclusion, but on the basis that the policy was void back to its inception.

As noted, the parties filed cross-motions for summary judgment on the foregoing joint stipulation of facts. Appellant contended in its motion that its rescission of the policy voided | sthe policy ab initio and thereby extinguished not only the Lud-wicks’ interest but also Appellee’s interest as mortgagee. In support of its motion, Appellant offered the affidavit of Rodney Boles, who had conducted an investigation on behalf of Appellant of the Ludwicks’ claim regarding their fire loss on December 16, 2009. Boles averred that “[a] data base search was conducted for prior losses associated with the Ludwicks,” which revealed that “the Ludwicks made a fire claim with Farm Bureau on December 16, 2009.... [and] with Allstate on February 19, 2007.” Boles also averred that, pursuant to his requests from the Van Burén Rural Fire District No. 6, he learned that “[tjhree prior fire reports, in addition to the report on the current claim by the Ludwicks ... indicated fires occurred on February 18, 2007, February 16, 2008, April 21, 2009, and December 16, 2009.” Boles opined that, based on his investigation, he determined there had been a total of three prior undisclosed fire losses.

Also in support if its motion, Appellant offered the affidavit of Mason Green, an authorized underwriter for Appellant. Green averred that at the time of application, the Ludwicks had disclosed one prior fire loss to an “outside shop” only that occurred in 2007. Green further averred that Appellant relied on the accuracy of this information when it issued the policy, and that if all the prior fire losses had been disclosed, the policy would not have been issued.

The circuit court entered its order, without explanation, granting Appellee’s motion and denying Appellant’s motion. This appeal followed.

Summary judgment may only be granted when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548. Ordinarily, on a summary-judgment appeal, when determining if there are genuine issues of material fact in dispute, we would view the evidence in the light most favorable to the party resisting the motion, and resolve any doubts and inferences against the moving party. Id.; Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. However, when, as here, the parties agree on the facts, we simply determine whether the appellee was entitled to summary judgment as a matter of law. Hobbs, 2012 Ark. 293, 412 S.W.3d 844; Barton Land Servs., Inc. v. SEECO, Inc., 2013 Ark. 231, 428 S.W.3d 430. As to the issues of law presented, our review is de novo. Hobbs, 2012 Ark. 293, 412 S.W.3d 844.

For reversal, Appellant contends that the circuit court erred in granting summary judgment to Appellee because, when Appellant properly rescinded the policy, the policy was void ab initio; therefore, there was no policy in which Appellee had an interest. Stated another way, Appellant contends that, after proper rescission, the policy was void ab initio as if the policy never existed, and Appellee cannot rely on a provision in a policy that no longer exists. Citing Black’s Law Dictionary 1568 (7th ed.1999), Appellant relies on the following definition of “void ab initio:” “null from the beginning, as from the first moment when a contract is entered into.” If the policy is void and a nullity, contends Appellant, Appellee can have no interest in it.

The law is clear that Appellant had a common-law right to rescind its policy on the basis of the material misrepresentation or omission of prior fire losses. See Ferrell v. Columbia Mut. Cas. Ins. Co., 306 Ark. 533, 537, 816 S.W.2d 593, 595 (1991) (citing Old Colony Life Ins. Co. v. Fetzer, 176 Ark. 361, 3 S.W.2d 46 (1928) (“It is undisputed that at common law an insurance company could retroactively rescind coverage because of fraud or material misrepresentation.”)). Appellant emphasizes that rescission of a contract and cancellation of a contract are two distinct remedies based on different grounds. Appellant cites the following:

Rescission of a contract and cancellation of a contract are two distinct remedies, based on different grounds, 17 G.J. Couch, Couch Cyclopedia of Insurance Law, §§ 67:33, 67:54 (R.A. Anderson, ed., 2d rev. ed.1983). Cancellation takes effect only prospectively, while rescission voids the contract ab initio.

Ferrell, 306 Ark. at 537, 816 S.W.2d at 595.

Appellee does not dispute Appellant’s right to rescind the Ludwicks’ policy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rick Merechka v. Vigilant Insurance Company
26 F.4th 776 (Eighth Circuit, 2022)
Union Pacific Railroad v. Seeco, Inc.
2016 Ark. App. 466 (Court of Appeals of Arkansas, 2016)
Hobbs v. McGehee
2015 Ark. 116 (Supreme Court of Arkansas, 2015)
Bly v. Collister
2014 Ark. App. 476 (Court of Appeals of Arkansas, 2014)
Brooks v. Terry Abstract Co.
2014 Ark. App. 212 (Court of Appeals of Arkansas, 2014)
Hoosier v. Interinsurance Exchange of the Automobile Club
2014 Ark. App. 120 (Court of Appeals of Arkansas, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
2014 Ark. 20, 431 S.W.3d 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-fire-insurance-co-v-citizens-bank-trust-co-ark-2014.