Theriot v. Lanier

425 So. 2d 351, 1982 La. App. LEXIS 8816
CourtLouisiana Court of Appeal
DecidedDecember 22, 1982
DocketNo. 82-398
StatusPublished
Cited by2 cases

This text of 425 So. 2d 351 (Theriot v. Lanier) 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
Theriot v. Lanier, 425 So. 2d 351, 1982 La. App. LEXIS 8816 (La. Ct. App. 1982).

Opinion

GUIDRY, Judge.

This suit involves an affirmative defense of arson to a claim under a fire insurance policy. The policy in question was issued by State Farm Fire and Casualty Company (hereafter State Farm) to Mr. and Mrs. Lonzo Lanier, covering their residence at 905 11th Street, Lake Charles, Louisiana.

The property destroyed by fire was acquired by Mr. and Mrs. Lonzo Lanier from Jeanette Litteral Theriot and her children on March 2, 1978. Mrs. Theriot and her children were holders of a promissory note executed by the Laniers to secure payment of the credit portion of the purchase price. The note was secured by a vendor’s lien and mortgage on the above mentioned property. The Laniers were late on their May, 1980 payment. On May 6, 1980 Mrs. Theriot made a written demand for the entire balance due on the note. On May 27,1980, the Lanier home was damaged by fire. On May 28, 1980, Mrs. Theriot and her children foreclosed on their mortgage and then filed this suit against the Laniers to recover the deficiency. The Laniers filed a third party demand against State Farm seeking recovery under their policy of insurance and penalties and attorney’s fees for the insurer’s alleged arbitrary failure to timely pay the claim. State Farm answered alleging arson as a defense. Pico Finance Company of Lake Charles, Inc. (hereafter Pico) intervened seeking judgment against the Lani-ers for the balance due on a note which it held. This note was secured by a second [352]*352mortgage on the property and Pico sought to recover from the insurance proceeds by preference the amount owed it. Prior to the taking of evidence, the Laniers stipulated judgment in favor of Mrs. Theriot and her children. On January 25,1982, the trial court rendered judgment in favor of the Theriots and Pico against the Laniers and dismissed the Laniers’ third party demand against State Farm. The Laniers appealed the judgment of the trial court rejecting their third party demand against State Farm.

The only issue presented on appeal is did the trial judge err in his factual determination that the defendant proved its defense of arson; and, if so, are the Laniers entitled to recover penalties and attorney’s fees from State Farm for its arbitrary failure to timely pay their claim.

The trial judge based his conclusion of arson on the following factual findings recited in his written reasons for judgment:

“There were two points of origin of the fire. One point of origin was the small room in which the water heater was located, and the other point of origin was in the kitchen, the room adjacent to the water heater closet, and more specifically, in the kitchen cabinet above the second shelf in the cabinet immediately under the stove. All experts agreed, and logic dictates, that two or more points of origin of a fire indicate the fire was intentionally set. This conclusion of two points of origin in supported by the evidence a) that a hole had been punched in the gas tubing under the stove; b) the burn pattern; and c) there was no communication between the two points of origin.
The conclusion that the fire was of incendiary origin is further supported by the evidence that it was a fast fire, indicating the use of an accelerant in the water heater closet. The fire burned vertically, with little lateral movement, also indicating a fast, accelerated fire. Additionally, there was a minimal amount of soot build-up on the windows, indicating a fast fire. Having reached the conclusion that the fire was incendiary in origin, it remains to be determined whether Lanier was responsible for the fire.
Mr. and Mrs. Lanier testified positively that both were absent at the time of the outbreak of the fire. They both testified that they left the house simultaneously in separate cars at approximately 8:00 A.M. the morning of the fire. The house is located on 11th Street, which runs east and west. They testified they proceeded in a westerly direction on 11th Street to Common Street, and then to a warehouse. Each denied returning to the home until later that afternoon, after the occurrence of the fire.
The testimony of Lanier in this regard is refuted by Morris Hickox. Hickox lives in the second house to the east of the Lanier home, approximately 75 yards away. On that morning, he was sitting in his back yard, with a clear view of Lanier’s house and driveway. He testified that at approximately 9:00 A.M., La-nier came from the rear of his house onto the driveway and got in his truck. He backed the truck out of the driveway and went east on 11th Street, not west, as Lanier had testified, passing in front of the Hickox home. As Lanier passed in front of Hickox’s house, Hickox saw smoke coming from the vent on top of the Lanier home. He told his wife to call the fire department. The fire department’s records show that she reported the fire at 9:06 A.M.
The court accepts as both truthful and accurate the testimony of Hickox. The testimony of Lanier cannot be reconciled with that of Hickox. Either Lanier did not leave the house with his wife but remained there after she left until 9:00, or if he did leave with her earlier, he returned later to the house. Lanier was present at the house at the outbreak of the fire. That fact, in and of itself, may not under other circumstances be conclusive evidence that he set the fire. But his denial of his presence and his recitation of a completely different set of facts than those given by Hickox, coupled with the [353]*353fact that the fire was of incendiary origin, leads to the inescapable conclusion that he set the fire. He and no one else had the opportunity to set the fire. He had a financial motive in doing so, although it would appear from the evidence that he exercised poor judgment in choosing this means of relieving the financial pressure. The insurer has met its burden of producing evidence so convincing that it will sustain no other reasonable hypothesis but that plaintiff was responsible for the fire.”

Findings of fact by the trial judge, particularly those involving credibility of witnesses, will not be disturbed on appeal unless clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir.1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975). The standard of proof in cases involving an affirmative defense of arson was enunciated in Rist v. Commercial Union Ins. Co., 376 So.2d 113 (La.1979):

“By raising the affirmative defense of arson, the insurer has the burden of establishing, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. An insurer need not prove its case beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68 (1952). In addition, we stated in Sumrall:
Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire....

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Related

Childs v. Zurich American Ins. Co.
476 So. 2d 403 (Louisiana Court of Appeal, 1985)
Theriot v. Lanier
430 So. 2d 82 (Supreme Court of Louisiana, 1983)

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Bluebook (online)
425 So. 2d 351, 1982 La. App. LEXIS 8816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theriot-v-lanier-lactapp-1982.