Reed v. Allstate Insurance Co.

376 So. 2d 1303, 1979 La. App. LEXIS 3092
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1979
DocketNo. 13940
StatusPublished
Cited by1 cases

This text of 376 So. 2d 1303 (Reed v. Allstate Insurance Co.) 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
Reed v. Allstate Insurance Co., 376 So. 2d 1303, 1979 La. App. LEXIS 3092 (La. Ct. App. 1979).

Opinion

HALL, Judge.

In this suit arising out of the destruction of plaintiff’s home by fire, the issues on appeal are whether the trial court correctly (1) sustained the defendant insurance companies’ arson defense, precluding plaintiff’s recovery under the insurance policies; and (2) held that the policy of Republic Underwriters Insurance Company was in effect on the date of the loss, resulting in a proration of the loss payable to plaintiff’s mortgagee between Republic and Allstate Insurance Company. We affirm the trial court’s decision on both issues.

On January 9, 1977 the home of plaintiff, John Robert Reed, was destroyed by fire. Plaintiff filed suit to recover the loss against Allstate which had issued a homeowner’s insurance policy to him. Allstate filed exceptions of nonjoinder of indispensable and necessary parties, alleging that plaintiff’s mortgagee, Federal Land Bank Association, was an indispensable party to the litigation and that Republic, which had also issued a homeowner’s insurance policy to plaintiff, was a necessary party to the litigation. The trial court ordered that Federal Land Bank and Republic be joined as parties defendant, which they were by supplemental petition filed by the plaintiff.

The Federal Land Bank, named as loss payee in a standard mortgagee clause in both policies, intervened alleging its entitlement as mortgagee to recover under both the Allstate and Republic policies the balance due on the mortgage which was $39,-261.62, plus interest.

Allstate denied liability to the plaintiff, alleging that plaintiff intentionally set fire to his home. Alleging that it had paid the Federal Land Bank its pro rata share of the Land Bank’s claim, Allstate reconvened against plaintiff for the amount paid to the Land Bank. Answering the intervention, Allstate denied any further liability to the Land Bank. Allstate did not file a third party demand against Republic.

Republic answered denying that the policy issued by it provided coverage because [1305]*1305the policy never was accepted by the plaintiff. Alternatively, Republic denied liability to the plaintiff because of plaintiff’s arson. Republic also reconvened against plaintiff for any amount it might be required to pay to the Land Bank.

After trial the district court, in written reasons for judgment, held the evidence clearly established plaintiff intentionally set fire to his home, precluding his recovery under the fire insurance policies. The district court further held that the Republic policy was issued with’ the consent and authority of the plaintiff in accordance with the customary practice of plaintiff and his long-time insurance agent and that the policy was in effect on the date of the loss. Accordingly, judgment was rendered (1) rejecting plaintiff’s demands against the two insurance companies; (2) rejecting interve-nor’s demands against Allstate; (3) granting judgment in favor of Allstate against plaintiff on its reconventional demand in the amount of $20,467.28; (4) granting judgment in favor of intervenor against Republic for its pro rata share of the balance of the Land Bank’s mortgage, $21,-361.39, plus interest; and (5) granting judgment to Republic on its reconventional demand against plaintiff for the amount due to the Land Bank.

Plaintiff and Republic appealed. The Federal Land Bank and Allstate did not appeal nor answer the appeal.

THE ARSON DEFENSE

Plaintiff owned his home located on an 82-acre tract of land in rural Jackson Parish. During the afternoon and evening of January 9, 1977 he was at home alone watching television. Plaintiff testified he stepped outside for about five minutes to check the weather. When he came back in the kitchen door he heard a “pop” and saw a ball of fire going throughout the house. In a matter of minutes the entire house became engulfed in flames. He ran through a hall into a bedroom and climbed out the window of the bedroom. He then went to his son’s trailer which was located nearby and called the volunteer fire department. Plaintiff conceded that if the fire was of incendiary origin he was the only one who could have started it.

The evidence establishes that the fire started at 7:00 p. m., that the fire department received a call at 7:07 p. m., and was on the scene at 7:17 p. m. When the fire department got to the scene the house was entirely engulfed in flames and was burning rapidly with intense heat. The house, valued at $33,542, was totally destroyed by ' the fire.

The defendant offered convincing and persuasive expert testimony that the fire was of incendiary origin. Grover Dunn of Dunn Laboratories in Atlanta, Georgia is a consulting engineer with many years experience in arson investigations, having investigated over 1,000 fires. Dunn made two inspections of the house on January 14,1977 and May 5, 1977, the first being about five days after the fire. He took samples from four places on the floor of the house which appeared to be points of origin. These samples were later analyzed at his laboratory and revealed the presence of accelerants such as gasoline or kerosene. Dunn testified that his inspection revealed numerous points of origin of the fire throughout the house. There were various areas where holes were burned completely through carpet padding and the tile on which it lay. There was spalling of concrete and irregular patterns or “splash patterns” in several places on the concrete slab which indicated an accelerant had been poured on the flooring. Based on melting of copper wire and other factors, Dunn determined that the fire burned with much greater heat than the ordinary house fire further indicating the presence of accelerants. The expert witness was of the opinion the fire was of incendiary origin. His testimony was strongly supported by that of Sidney Taylor, an experienced arson investigator with the state fire marshal’s office. Other expert witnesses negated the possibility that the fire could have been caused by the television set exploding or by a floor cleaning liquid that had been used on the carpet in the house a few days prior to the fire, possibilities suggested by the plaintiff but [1306]*1306not supported by evidence in the record. Plaintiff’s suggestion that several kerosene lamps in the house could have accounted for the presence of accelerants on the floor was negated by evidence as to the location of the lamps compared to the location of the points of origin where the accelerants were present. The expert testimony also demonstrates that plaintiff’s testimony as to what he observed when he walked in through the kitchen door was implausible and incredible. The house was all-electric, negating the possibility of a natural gas explosion.

The only expert testimony offered by plaintiff was that of Dr. Hans R. Fuehrer, a consulting engineer whose primary work is in accident reconstruction and who in his entire career has investigated only between 10 and 20 dwelling fires. Dr. Fuehrer made no investigation of the premises but only read the deposition of Dunn and then made some attempt to attack some of Dunn’s conclusions. The testimony of this expert was unpersuasive, being based on minimum familiarity with the facts of the case.

In brief plaintiff’s counsel vigorously attacks the testimony of defendant’s experts and the factual findings of the trial court. However, after careful review of the record it is this court’s conclusion that the findings of the trial court are fully supported by the evidence.

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Related

Reed v. Allstate Insurance
378 So. 2d 1382 (Supreme Court of Louisiana, 1980)

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376 So. 2d 1303, 1979 La. App. LEXIS 3092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-allstate-insurance-co-lactapp-1979.