YHT, Inc. v. Progressive Insurance

7 Am. Samoa 3d 150
CourtHigh Court of American Samoa
DecidedAugust 18, 2003
DocketCA No. 92-00
StatusPublished

This text of 7 Am. Samoa 3d 150 (YHT, Inc. v. Progressive Insurance) is published on Counsel Stack Legal Research, covering High Court of American Samoa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
YHT, Inc. v. Progressive Insurance, 7 Am. Samoa 3d 150 (amsamoa 2003).

Opinion

OPINION AND ORDER

Plaintiff, YHT, Inc. (“YHT”’) seeks payment from Defendant Progressive Insurance Company (“Progressive”), its insurer, for damages caused by a fire at YHT’s office. We hold that YHT is not entitled to payment.

FACTUAL FINDINGS

Based on all the evidence adduced at trial, we make the following factual findings.

On February 23, 2000, a fire destroyed the contents of YHT’s office. The cause of the fire was undoubtedly arson. The signs were clear: an explosion was heard prior to the fire; gasoline containers were found in two different rooms; gasoline residue was found in the bathroom; YHT’s [152]*152president, Yu Chun Yung (“Yu”), admitted that there were no flammable materials in the building; the extent and speed of the fire indicated it was artificial; and the fire was at night, when it was less likely to be detected and extinguished.

.Shortly thereafter YHT looked to cash in on their policy, but Progressive balked. Among other things, Progressive suspected foul play. Specifically, Progressive suspected that YHT, through Yu, had a hand in the arson. Their own investigation, coupled with help of the local authorities, produced several suspicious factors.

At trial, two experts helped put these factors into perspective. The first was Peter Webb (“Webb”). Webb is a claims investigator and loss adjuster. He is trained in basic fire cause and origin investigation and investigation of arson insurance fraud. Throughout his twenty-year career, Webb has investigated hundreds of claims. The other expert was Gary Luff (“Luff’). Luff is a fire expert in New Zealand, and has 19 years experience in the field of fire scene investigation. He has examined over 1,600 fire scenes. Together, their testimony illuminated the suspicious conduct that implicates YHT.

YHT had taken out a $6 million insurance policy with Progressive just six weeks before the fire. The policy only covered damage due to fire and certain natural disasters; YHT did not seek any other coverage (e.g., theft). Furthermore, the policy was rather large, given that the office was modestly sized.

In the weeks leading up to the fire, Yu repeatedly asked a progressive underwriter, Tavita Tamua, whether Progressive could cover a $6 million claim Also during that time, YHT’s business was suffering. It was financially strapped. Yu had just learned that YHT would not be able to export for sale elsewhere in the United States its recently acquired stock of computer chips — which if they were actually in YHT’s office at the time of fire, had been smuggled into American Samoa. See YHT, Inc. v. Progressive Ins. Co., 6 A.S.R.3d 108, 110-11 (Trial Div. 2002). Moreover, Yu seemed generally unfamiliar with electronics manufacturing.

After the fire, it was determined that it was set from inside, with no signs of forced entry — the insinuation being that the arsonist entered with a key. Yet the only people who had a key to the office were three YHT principals: Yu, Francis Fomai’i (“Fomai’i”), the landlord of the YRT office building who became a YHT Vice President after the fire, and YHT Vice President Ki Seok Bae (“Sae”).

When seeking payment, YHT was evasive and inconsistent. Yu failed to answer 19 questions put to him by Webb and faded to complete the [153]*153Claim Form and Schedule of..Loss Form Webb furnished him. furthermore, in the original contradi, YHT claimed $60,000 for Plant and Machinery Business Fixtures and Fittings. Yet, at trial, YHT submitted that much of the $60,000 was for leasehold improvements. But Yu could not produce invoices or even details about these improvements.1 More importantly, Progressive’s policy with YHT clearly did not cover leasehold improvements.

YHT also failed to provide much documentation for the tangible property it claimed it lost,2 the defense being that its records were burned in the fire. Many of these items, such as office chairs and a television set, contained metal parts that would have left discoverable remains. But there were no remains of this kind found at the scene of the fire.

Finally, Luffs testimony also ruled out the possibility of vandalism or revenge. In his opinion, it would be unusual for a vandal or vengeful person to set a fire from within, or even go through the trouble of buying gasoline. And, as already noted, only three people possessed keys to the building. Without evidence of forced entry, Luff was at a loss for how a vandal could have gained access to the office.

DISCUSSION

Public policy dictates that if an insured sets fire to his property, either intentionally or willfully, he shall be denied the right to collect from his fire insurance. See, e.g., Allstate Ins. Co. v. Dorothy McGory, 697 So. 2d 1171, 1174 (Miss. 1997); 18 GEORGE J. COUCH, COUCH ON INSURANCE § 74:663 (2d ed. 1983) [hereinafter “COUCH”]; A.S.C.A. § 29.1571 (“An insurer is not liable for a loss caused by the willful act of the insured”). The majority rule places the burden on the insurer to prove its claim by a preponderance of the evidence. See Vexrastro v. Middlesex Co., 540 A.2d 693, 695-97 (Conn. 1988); Rena Inc. v. Brien, 708 A.2d 747, 751 (N.J. Super. A.D. 1998); Couch, § 74.667; 44 AM. Jur. 2d Insurance § 2017 (1982) [hereinafter “Insurance”].

There are three common elements to this defense: “1) incendiary fire, 2) motive on the part of the insured to destroy the property, and 3) opportunity on the part of the insured to set the fire or to procure the [154]*154setting of the fire by another.” Allstate, 697 So.2d at 1174, Rena Inc., 708 A.2d at 751 (citing Alexander V. Tenn. Farmers Mut. Ins. Co., 905 S.W.2d 177, 179 (Tenn. Ct. App. 1995)). As might be expected, direct evidence of arson is often elusive; instead, an insurer may rely on circumstantial evidence. See Don Burton, Inc. v. Aetna Life & Cas. Co., 575 F.2d 702, 706-07 (9th Cir. 1975); Elgi Holding Inc. v. Ins. Co. of N. Am., 511 F.2d 957, 959 (2d Cir. 1975); Allstate, 697 So. 2d at 1174; Rena Inc., 708 A. 2d at 751; Insurance, § 2017; 34 Proof of Facts 3d 291, Arson Defense § 4 (1995) (“Arson Defense").

A. Incendiary Origin

As already alluded, we have no doubt that the fire was caused by arson, i.e., that it had an incendiary origin. We need only repeat our findings of facts: an explosion was heard prior to the fire; gasoline containers were found in two different rooms; gasoline residue was found in the bathroom; Yu admitted that there were no flammable materials in the building; the extent and speed of the fire indicated it was artificial; and the fire was at night, when it was less likely to be detected and extinguished. The two experts, Webb and Luff, drew the same conclusion.

B. Motive to Destroy Property

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Related

Allstate Ins. Co. v. McGory
697 So. 2d 1171 (Mississippi Supreme Court, 1997)
Bennco Sales & Salvage, Inc. v. Gulf Insurance Co.
759 S.W.2d 336 (Missouri Court of Appeals, 1988)
Alexander v. Tennessee Farmers Mutual Insurance Co.
905 S.W.2d 177 (Court of Appeals of Tennessee, 1995)
Rena, Inc. v. Brien
708 A.2d 747 (New Jersey Superior Court App Division, 1998)
Verrastro v. Middlesex Insurance
540 A.2d 693 (Supreme Court of Connecticut, 1988)

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