Thomas Investment Co. v. United States Fidelity & Guaranty

716 S.W.2d 395, 1986 Mo. App. LEXIS 4465
CourtMissouri Court of Appeals
DecidedJuly 29, 1986
DocketNo. 50539
StatusPublished
Cited by1 cases

This text of 716 S.W.2d 395 (Thomas Investment Co. v. United States Fidelity & Guaranty) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas Investment Co. v. United States Fidelity & Guaranty, 716 S.W.2d 395, 1986 Mo. App. LEXIS 4465 (Mo. Ct. App. 1986).

Opinion

PUDLOWSKI, Judge.

Respondent, Thomas Investment Company [hereinafter Thomas], a wholly owned subsidiary of Hoel-Steffen Construction Company, Inc., whose president, director and principal stockholder was Robert F. Hoel, filed a Petition for Declaratory Judgment in the Circuit Court of the City of St. Louis. Thomas sought a declaration that a commercial policy of insurance issued by appellant, United States Fidelity and Guaranty Company [hereinafter USF&G], covered damage to property owned by Thomas at 4100-4102 Hartford in the City of St. Louis. Although USF&G denied coverage under the policy, the trial court declared that Thomas was entitled to coverage for the loss sustained in December of 1983 when subfreezing temperatures caused the rupture of the plumbing pipes and radiators on the property and water damage resulted. We affirm.

In July of 1982, respondent, a real estate holding company, purchased the two-family flat on Hartford as a business venture. The building was to be gutted, completely renovated and eventually sold as two individual condominium units. The following month, Mr. Hoel contacted Thomas Ricci, an agent with C. J. Thomas Insurance Agency, who was authorized to represent USF&G. It had been respondent’s practice for twenty-five years to insure property with USF&G under a “Master Policy” [396]*396which permitted the addition or deletion of coverage on property as needed. Mr. Hoel informed Mr. Ricci that he had purchased the building and requested builder’s risk coverage on the property during the construction.

By September of 1983, the construction was complete. During the annual review of coverage with Mr. Ricci, Mr. Hoel requested that the builder’s risk coverage be deleted on the Hartford property as of October 1,1983, and that on the same date, the completed condominiums be covered under the standard policy provisions.

Mr. Hoel testified that although he did not specifically tell the agent that no one would be living in the building, he did inform him that the rehabilitation was complete, that he intended to sell the property and that he wished to carry $100,000.00 insurance on it until it was sold. Mr. Ricci stated that he was not certain whether the insured had indicated whether the property was to be sold or rented, but he had assumed, based on his knowledge of past property transactions by the insured, that it would be rented. However, with the exception of one other residential property, respondent owned only commercial property which it leased to businesses.

After an unsuccessful attempt to sell the property, the respondent entered into an agreement to list the condominiums with a realtor on October 27,1983. Mr. Hoel, who had been holding open house on Saturday and Sunday afternoons, removed his table, chairs, television and radio on that date, but left nine live plants in the condominiums. He instructed the realtors to leave the heat on and the thermostats set at fifty-five degrees.

Mr. Hoel visited the property on December 24, 1983 and discovered that someone had turned the thermostats off. All the water pipes and radiators had ruptured as a consequence of the extremely frigid weather and the loss of heat. Major water damage to the walls, carpeting and floors had resulted.

When notified of the loss, USF&G sent an investigator to inspect the condominiums. He concluded that the property had been vacant and unoccupied for a period of more than sixty days at the time of the loss and that, therefore, on the basis of a condition in the Master Insurance Policy, Form MIP-101, the loss was not covered. Form MIP-101, subtitled "Standard Fire Insurance Policy,” covered only the perils of fire and lightning. The investigator also denied coverage based upon an attachment to the master policy, Form CF 0013, which provided extended coverage for perils other than fire and lightning.

The pertinent section of this form excludes:

4. leakage or overflow from plumbing, heating, air conditioning, or other equipment or appliances (except fire protective systems) caused by or resulting from freezing while the building is vacant or unoccupied, unless the named Insured shall have exercised due diligence with respect to maintaining heat in the buildings or unless such equipment and appliances had been drained and the water supply shut off during such vacancy or unoccupancy_ (emphasis added).

The investigator testified that all coverage written under the master policy was subject to the conditions of Form MIP-101. Mr. Ricci, the agent, testified that in his opinion Form MIP-101 applied only to the perils of fire and lightning and that Form CF 0013 provided extended coverage for other perils including freezing pipes.

The trial court found in part: (1) that the issue was whether Thomas was entitled to coverage under the terms of the policy or whether coverage was excluded by the standard sixty day vacancy provision of Form MIP-101 or the due diligence exclusion of Form CF 0013; (2) that the sixty day vacancy exclusion applied to losses from freezing and was not limited to the peril of fire; (3) that USF&G abandoned its affirmative defense that Thomas failed to exercise due diligence; and (4) that Thomas was covered under the master policy because USF&G waived the sixty day vacancy provision since its agent knew the prop[397]*397erty was not likely to be occupied within the sixty day period when he issued the endorsement adding the condominiums to the standard policy coverage.

USF&G’s first point on appeal is that the court erred when it found that USF&G did not cancel the builder’s risk coverage on October 1,1983. It is clear from the record that due to the insurer’s error the coverage was not cancelled as requested, but because we agree with the trial court that the loss was not covered under the builder’s risk endorsement, there is no need for an extended discussion of this point.

Second, USF&G argues that the standard policy did not cover Thomas’s loss because the condominiums were vacant or unoccupied as a matter of law in violation of the sixty day clause. The trial court’s order was based on its finding that appellant’s agent waived Thomas’s compliance with the sixty day provision because the agent knew that the property was not likely to be occupied within that period when he insured the property under the standard policy on October 1, 1983. The trial court did not make a specific finding with respect to whether the building was vacant or unoccupied, and an extended discussion of the law with regard to vacancy or unoccu-pancy is not necessary to the final determination of this dispute.

Appellant’s third contention is that the trial court erred in holding that the insured’s compliance with the sixty day provision had been waived. The sixty day vacancy or unoccupancy exclusion in Form MIP-101 is not the applicable provision with respect to this loss; therefore, there is no need to address this issue. “An appellate court opinion should be limited to those questions essential to a proper disposition of the appeal.” Community Title Co. v. Roosevelt Federal Savings & Loan Association, 670 S.W.2d 895, 899 (Mo.App.1984).

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Bluebook (online)
716 S.W.2d 395, 1986 Mo. App. LEXIS 4465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-investment-co-v-united-states-fidelity-guaranty-moctapp-1986.