Washington County Farmers Mutual Fire Insurance Co. v. Phillips

807 S.W.2d 940, 34 Ark. App. 198, 1991 Ark. App. LEXIS 258
CourtCourt of Appeals of Arkansas
DecidedMay 1, 1991
DocketCA 90-359
StatusPublished
Cited by2 cases

This text of 807 S.W.2d 940 (Washington County Farmers Mutual Fire Insurance Co. v. Phillips) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington County Farmers Mutual Fire Insurance Co. v. Phillips, 807 S.W.2d 940, 34 Ark. App. 198, 1991 Ark. App. LEXIS 258 (Ark. Ct. App. 1991).

Opinion

Melvin Mayfield, Judge.

Appellant Washington County Farmers Mutual Fire Insurance Company appeals from a jury verdict finding appellees entitled to recover $7,227.00 under an insurance policy.

On August 6,1987, the appellant issued a policy insuring the appellees’ dwelling and their household and personal effects against fire and other named perils. The policy defined “household and personal effects” as follows:

(2) HOUSEHOLD AND PERSONAL EFFECTS usual and incidental to the occupancy of the premises as a dwelling (but excluding accounts, bills, currency, deeds, abstracts, evidence of debt, money, securities, diamonds, antiques, motor vehicles, aircraft, radio and television antenna and masts, windchargers, citizen band radios, scanners, lawn mowers, animals and pets, outdoor equipment, fences, trees, shrubs, plants and lawns) belonging to the insured, or at the option of the insured, belonging to the members of his household, all while on the premises herein described.

On November 26, 1988, a fire occurred at appellees’ residence causing damages to the porch and wall of the residence and a total loss to seventeen stamp vending machines stored on the porch. Farmers Mutual denied coverage for damage to the vending machines, and on March 10, 1989, appellees filed a complaint seeking to recover fire damages to their residence totaling $282.23 and damages to the vending machines totaling $7,227.00, plus an additional 12% penalty and attorneys fees. Subsequent to the filing of the complaint, Farmers Mutual paid the full amount of loss to the residence, and that portion of the complaint was dismissed with prejudice.

On August 16, 1989, appellant filed a motion for summary judgment on the basis that, as a matter of law, the stamp vending machines which were to be put to business use in the future were not covered under the policy’s definition of “household and personal effects usual and incidental to the occupancy of the premises as a dwelling.” The trial court denied appellant’s motion, on the holding that the question as to whether or not the policy covered the stamp machines was a question of fact to be determined at trial.

On April 9,1990, immediately prior to trial, appellant asked the court for a ruling on whether or not the applicable contract language was ambiguous. The trial court stated:

Well, in reading the contract terms, I think that is a matter for the jury to determine. Now if it’s clear and there is no doubt then I think the Court can rule one way or the other. But in reading the terms at this time, I am going to decline to instruct them as to whether it is ambiguous or not ambiguous and allow them to make that determination by means of an instruction that I give them.

At the close of the appellees’ case, appellant moved for a directed verdict asserting there was no evidence of any ambiguity and appellees had admitted the vending machines were going to be put to a business use. The trial court overruled appellant’s motion stating that it had previously ruled that it was a fact question as to whether or not the machines were covered under the insurance policy, and there was no policy language excluding business property. At the close of all the evidence, the motion was renewed and again denied. The case was then submitted to the jury which returned a verdict for the appellees in the amount of $7,227.00.

On appeal, appellant argues that the jury’s, verdict is not supported by substantial evidence. Appellant also argues the trial court erred (1) in denying appellant’s motions for summary judgment and directed verdict, (2) in refusing to rule whether or not the policy language was ambiguous and leaving it to the jury to decide, and (3) in giving jury instructions number 7 and 8. These instructions stated:

JURY INSTRUCTION NUMBER 7
Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, and be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense. However, where the terms or words of policy are of doubtful meaning or have more than one meaning, that construction most favorable to the insured will be adopted.
JURY INSTRUCTION NUMBER 8
You are instructed that if you find that the term “household and personal effects usual and incidental to the occupancy of the premises as a dwelling” is of doubtful meaning or has more than one meaning, then you must construe the phrase in favor of the plaintiffs, Darrel Phillips and Alma Lane Phillips, and against the defendant, Washington County Farmers Mutual Fire Insurance Company.

In the first place, our supreme court has held that the denial of a summary judgment is not reviewable where the denial is followed by a trial on the merits. The American Physicians Insurance Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968). As to appellant’s contention that it was entitled to a directed verdict, this contention is based on its argument that the policy was not ambiguous and therefore there was no question for the jury to decide. Appellant does not argue that the stamp vending machines were not “personal effects. . . belonging to the insured ... on the premises.” The contention is that they were not personal effects “usual and incidental to the occupancy of the premises as a dwelling.” These terms, however, are not defined by appellant’s policy.

In reviewing the denial of a motion for directed verdict, we give the proof its strongest probative force. Such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought and if there is any substantial evidence to support the verdict we will affirm the trial court. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). Here, the appellee Alma Phillips testified that she purchased the vending machines in April 1988 because her husband wasn’t able to work, and she wanted some way for him to have extra income. She testified that when the machines arrived they were put on the porch of appellees’ house by UPS; that at the time of the fire in November of 1988, the machines were not being used in a business; that they were still in boxes and Mrs. Phillips was waiting for information on how to load, unload and maintain the machines. She testified she hadn’t set any of the machines up but had talked to several merchants who indicated they might like to have a machine located at their places of business. Mrs. Phillips testified further that she thought the stamp machines were “an incidental happening” to her living in the residence, that it was not something that happened every day, and in fact at the time of the trial, she had some furniture in her house that she had bought for someone else. She said she did “store” things at her house and had things at her house “besides the things she used everyday.”

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Cite This Page — Counsel Stack

Bluebook (online)
807 S.W.2d 940, 34 Ark. App. 198, 1991 Ark. App. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-county-farmers-mutual-fire-insurance-co-v-phillips-arkctapp-1991.