Tennessee Farmers Mut. Ins. Co. v. Farrar

337 S.W.3d 829, 2009 Tenn. App. LEXIS 162, 2009 WL 1162603
CourtCourt of Appeals of Tennessee
DecidedApril 30, 2009
DocketE2008-00779-COA-R3-CV
StatusPublished
Cited by13 cases

This text of 337 S.W.3d 829 (Tennessee Farmers Mut. Ins. Co. v. Farrar) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tennessee Farmers Mut. Ins. Co. v. Farrar, 337 S.W.3d 829, 2009 Tenn. App. LEXIS 162, 2009 WL 1162603 (Tenn. Ct. App. 2009).

Opinions

OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and JON KERRY BLACKWOOD, SP. J., joined.

This case involves an alleged misrepresentation on an application for a policy of homeowners’ insurance (“the policy”). Following a fire, the applicant — the defendant Gerald Farrar (“the Claimant”) — filed a claim with the insurer, Tennessee Farmers Mutual Insurance Company (“the Company”), seeking $92,043 for smoke and fire damage. The Company declined the claim and brought a declaratory judgment action. Following a bench trial, the court held, as particularly pertinent to this appeal, (1) that the Claimant had made a non-intentional misrepresentation on the application, but one that increased the Company’s risk of loss and voided the policy; (2) that the Company was not es-topped to assert the1 Claimant’s misrepresentation; (3) that the Claimant was bound by the representations' in the application and could not rely upon the fact that he did not read the application when he signed it; and (4) that Gary Vollheim, an occupant in the house and the one who started the fire, was not an insured. The trial court declared the policy void ab ini-tio and dismissed the Claimant’s counterclaim. He appeals. We affirm.

[832]*832I.

The Claimant’s house was insured under a policy of homeowners’ insurance issued by the Company. The structure was damaged by fire on June 22 or 23, 2006.1 The Company denied coverage based upon an alleged misrepresentation on the Claimant’s application for the policy. It subsequently filed a declaratory judgment suit against the Claimant seeking a declaration of the parties’ rights under the policy.

II.

The Claimant had lived in the house since 2001. He initially shared the residence with Roy Vollheim and his son, Gary Vollheim. Gary Vollheim had been disabled since the 1960s and had a history of alcoholism and mental illness. When the Claimant first moved into the house, Roy Vollheim owned the property. The property had been insured by the Company for a number of years. When Roy Vollheim died, Gary Vollheim inherited the property.

After Roy Vollheim’s death, and consistent with his wishes, Gary Vollheim quit-claimed the property to the Claimant, retaining a life estate. Thereafter, the Claimant paid all of the household expenses, including taxes, utilities, and repairs. Following Roy Vollheim’s death, the Claimant and Gary Vollheim continued to live in the house.

Sometime after Roy Vollheim’s death, the Claimant and Gary Vollheim made an appointment to see Michael Dyer, an agent of the Company, for the purpose of advising him of Roy Vollheim’s death. The Claimant told Mr. Dyer that he wanted to obtain a new insurance policy covering the house. The Claimant testified that he brought copies of tax records for the property as well as his copy of the deed to the meeting. The tax records and the deed show that Gary Vollheim quitclaimed the property to the Claimant, retaining a life estate. All agree that Gary Vollheim was present at the meeting.

Mr. Dyer, as the agent for the deceased, had the old policy number. During the meeting, Mr. Dyer filled out an application for insurance. Mr. Dyer asked the questions on the application form and wrote down the Claimant’s answers. Question 13 asked, “[Does] [a]ny other party have an ownership or other interest, of any type, in this property?” The application reflects the Claimant’s answer as, “No.”

The Claimant testified that he told Mr. Dyer that Gary Vollheim had a life estate. The Claimant stated that, “[Mr. Dyer] asked does your ex-wife have any interest in the property or does anybody else have any interest in the property other than you and Gary right here?” The Claimant also testified that he told Mr. Dyer that the living conditions in the house had not changed — that he and Gary both were still living in the house. Mr. Dyer testified that he does not remember what the Claimant brought with him to the meeting and that he does not remember the specifics of the conversation with him, except for what he wrote down on the application. After the meeting, the Company issued an insurance policy on the house and its contents. A year later, the policy was renewed. The insured’s name on the renewal certificate is reflected as “Gerald B. Farrar,” ie., the Claimant.

In June 2006, the Claimant was an over-the-road truck driver. While the Claimant [833]*833was away, Gary Vollheim intentionally cut his wrists. A neighbor, Ronald Mills, testified that on the night of Gary Vollheim’s death, Mr. Vollheim called him at 12:30 a.m. According to Mr. Mills, Mr. Vollheim was agitated about some letters. Mr. Mills, who lived in close proximity to Mr. Voll-heim, told him that they would talk the next morning.

The next day, in the morning, Mr. Mills walked out of his house to get the newspaper. As he walked down his driveway, he saw that there was blood “all over the back of my pickup truck.” He returned to his house and “called [his] next door neighbor across the street.” When the neighbor arrived, they followed a trail of blood leading from the truck up to and onto the porch of the Claimant’s house. They did not go any further but instead decided to call the sheriffs department. When an officer arrived, he discovered a fire in the house and called the fire department. When the fire department arrived, the fire was out, but the firemen found Gary Voll-heim dead on the side porch of the house. Lacerations to Mr. Vollheim’s wrists were consistent with suicide. A suicide note was found on the kitchen table.

The experts that investigated the scene said that papers were piled in a hallway and set on fire. An expert for the Company, Stephen Ale, testified that the fire began in two locations, but the Rhea County Fire Department investigator, Charles Kinney, found only one initiation point for the fire. Both witnesses said that the fire went out because there was no ventilation in the house. Mr. Ale said that lamp oil had been used to ignite one of the piles of letters but there was no evidence of lamp oil on the other. Further, there was no evidence that an accelerant had been spread around the house or used to light the letters. Because the fire burned itself out, most of the damage was smoke-related. The damage was significant.

III.

The Claimant raises the following issues by the two questions posed in the “Issues” section of his brief:

1. Did the Claimant make a material misrepresentation on his application for a homeowners’ insurance policy?
2. Assuming there was a material misrepresentation, is the Company es-topped to assert same as a defense to the Claimant’s claim under the policy?

In its brief, the Company responded to these issues and raised two of its own:

1. Should a'witness for the Company on the subject of underwriting have been permitted to testify regarding the differences between the application in this case and an application involved in an unrelated decision of this Court?
2. Is the claim in this case barred by a provision in the policy excluding coverage for “any action, other than accidental, committed by or at the direction of any insured: (a) resulting in a loss or (b) with the intent to cause a loss”?

IV.

Our review is de novo

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Tennessee Farmers Mut. Ins. Co. v. Farrar
337 S.W.3d 829 (Court of Appeals of Tennessee, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
337 S.W.3d 829, 2009 Tenn. App. LEXIS 162, 2009 WL 1162603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tennessee-farmers-mut-ins-co-v-farrar-tennctapp-2009.