Sharplin v. Casualty Reciprocal Exchange

628 So. 2d 217, 1993 La. App. LEXIS 3665, 1993 WL 500516
CourtLouisiana Court of Appeal
DecidedDecember 1, 1993
DocketNo. 24985-CA
StatusPublished

This text of 628 So. 2d 217 (Sharplin v. Casualty Reciprocal Exchange) 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
Sharplin v. Casualty Reciprocal Exchange, 628 So. 2d 217, 1993 La. App. LEXIS 3665, 1993 WL 500516 (La. Ct. App. 1993).

Opinions

VICTORY, Judge.

Arthur Sharplin, mortgagee and loss payee, filed suit to recover for alleged insured losses to a metal warehouse under the vandalism provision in a commercial property policy issued by Casualty Reciprocal Exchange (CRE). Finding coverage under the policy, the trial court awarded Sharplin recovery, together with penalties and attorney’s fees. We reverse in part, and remand with instructions.

FACTS

On December 30, 1980, Sharplin sold a shell metal warehouse to Robert and Mildred Johnson by credit deed, creating a mortgage on the property in favor of Sharplin. The Johnsons finished the inside of the building and thereafter used it to conduct several businesses, primarily Titan Aluminum Co., which manufactured doors and windows. The Johnsons purchased insurance on the property from appellant, Casualty Reciprocal Exchange (CRE), naming Sharplin as the loss payee under the policy.

In 1989, Sharplin filed a foreclosure suit against the Johnsons for nonpayment. However, the Johnsons filed for bankruptcy and the foreclosure proceedings were stayed. In December of 1990, while in the midst of the bankruptcy proceedings, the Johnsons1 were ordered to relinquish the property to the bankruptcy trustee. When Sharplin examined the building shortly after their departure, he found the building “broom clean,” but stripped of virtually all of the improvements added by the Johnsons since 1980. As loss payee under CRE’s policy, Sharplin filed suit on June 6, 1991, claiming that CRE provided coverage for the replacement and installation costs of the items removed2 from [219]*219the premises and for property damage sustained.

Following trial, the trial court found CRE liable to Sharplin for $20,431.48 in “damages,” $2,043.14 in penalties, and $7,500 in attorney’s fees. The court did not allow recovery for an outdoor sign, which was not found to be a component part of the building, and the indoor glass panels, which were specifically excluded by policy language. CRE suspensively appealed the trial court’s judgment.

DISCUSSION

It is undisputed that at the time that the alleged events occurred Sharplin, as named mortgage holder of the insureds’ property, qualified as loss payee under CRE’s commercial policy. It is also clear that either the Johnsons or their employees were the parties that removed the items taken in December 1990. Further, it is undisputed that all of the items for which recovery was sought (excluding the outdoor sign) were component parts of the building subject to Sharplin’s mortgage since they were securely fastened to a wall or the foundation of the building, or served as part of the electrical, heating/cooling, or plumbing systems of the building. See LSA-C.C. Art. 466. The prime question before this court is whether the trial court erred in holding that the “vandalism” provision of the CRE-issued policy provided coverage for many of these items.

An insurance policy is a contract and the rules established for the construction of written instruments apply to contracts of insurance. The intention of the parties is to be determined in accordance with the plain, ordinary and popular sense of the language used in the agreement and by giving consideration on a practical, reasonable and fair basis to the instrument in its entirety. Commercial Union Ins. Co. v. Piker, 557 So.2d 717 (La.App. 2d Cir.1990); Dear v. Blue Cross of Louisiana, 511 So.2d 73 (La.App. 3d Cir.1987).

In an action on an insurance policy, a party seeking recovery has the burden of proving facts which bring his claims within the coverage of the policy. Commercial Union Ins. Co. v. Piker, supra; Oliver v. Saia, 510 So.2d 770 (La.App. 1st Cir.1987), writ denied, 514 So.2d 463 (La.1987).

The policy in question provides coverage for direct physical damage to or loss of covered property only if it is a result of specified types or causes of loss; i.e., fire, lightning, explosion, wind storm or hail, smoke, riot or civil commotion, vandalism, sprinkler leakage, etc. There is no coverage for losses occurring from other causes, including theft. The policy’s vandalism clause provides:

8. Vandalism, meaning willful and malicious damage to, or destruction of the described property. We will not pay for loss or damage to glass (other than glass building blocks) that is part of a building, structure, or an outside sign; (a) but we will pay for loss or damage to other property caused by or resulting from breakage of glass by vandals; (b) caused by or resulting from theft, except for building damage caused by the breaking in or exiting of burglars.

Despite Mrs. Johnson’s denials, the trial court found sufficient proof that the John-sons had a motive for committing intentional malicious acts, citing various evidence adduced at trial:

1. Johnsons’ history of late payments to Sharplin;
2. Sharplin’s strong language in demand letters;
3. Johnsons’ refusal to allow Sharplin entry to the building in December 1989;
4. Johnsons’ hotly contested bankruptcy proceeding; and
5. Johnsons’ failure to give notice of intent to vacate.

The court stated that the Johnsons’ deliberate actions amounted to purposeful and intentional acts calculated to cause property [220]*220damage or designed to diminish the value of Sharplin’s security.

Accepting the trial court’s finding of ■willful and malicious intent as supported by the record, we note that the vandalism section of the policy only covers property that is proven to have been maliciously and willfully destroyed or damaged. However, the trial court’s written opinion repeatedly refers to items damaged or removed. The trial judge apparently accepted appellee’s contention that the removal of a component part of a building was vandalism. However, such a contention was expressly rejected in Sterling v. Audubon Insurance Co., 452 So.2d 709 (La.App. 3d Cir.1984), writ denied, 456 So.2d 169 (La.1984). The Third Circuit held that an insured under a similar vandalism provision was not entitled to recover the value of the component parts removed (by burglars) from the insured premises, although the cost of installing the items was covered by the express language allowing recovery for “damage to the building(s) covered herein by burglars.”

Following Sterling, we conclude that the removal of the component parts of the metal building in this case does not constitute vandalism under the policy. Thus, appellant is entitled to recovery only for those items that he proved were either destroyed or damaged, but not those which were merely removed from the premises.

Sharplin produced photographs showing the condition of the premises in December 1989 as compared to photographs taken in December 1990, following the Johnsons’ departure. These photographs showed substantial damage to the circuit breakers and wiring in the main electrical panel. In addition, the photographs reveal that the wiring to the lights, telephones and electrical outlets were cut and pushed back into the wall after the removal of those items. Herbert Newman, manager of ABC Treadco, a neighboring business, testified that he witnessed Titan employees burning electrical wiring.

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Related

Dear v. Blue Cross of Louisiana
511 So. 2d 73 (Louisiana Court of Appeal, 1987)
Oliver v. Saia
510 So. 2d 770 (Louisiana Court of Appeal, 1987)
Sterling v. Audubon Insurance Co.
452 So. 2d 709 (Louisiana Court of Appeal, 1984)
Commercial Union Insurance Co. v. Piker
557 So. 2d 717 (Louisiana Court of Appeal, 1990)

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Bluebook (online)
628 So. 2d 217, 1993 La. App. LEXIS 3665, 1993 WL 500516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharplin-v-casualty-reciprocal-exchange-lactapp-1993.