American Ins. Co. of Newark, N. J., v. Robinson
| Decision Date | 29 August 1935 |
| Parties | AMERICAN INS. CO. OF NEWARK, N. J. v. Robinson |
| Court | Florida Supreme Court |
Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.
Suit at law by W. T. Robinson against the American Insurance Company of Newark, N. J. Judgment for the plaintiff, and defendant brings error.
Reversed and remanded.
Sutton, Tillman & Reeves, of Tampa, for plaintiff in error.
Harrison E. Barringer, of Sarasota, for defendant in error.
This was a suit at law wherein W. T. Robinson sued the American Insurance Company on a $3,000 policy of fire insurance issued on a building alleged to have been completely destroyed by fire under circumstances making the insurer liable for the full amount of the insurance. Verdict was directed in plaintiff's favor, and, from the judgment entered thereon, the insurance company has prosecuted this writ of error.
The case went to trial on defendant's sixth and tenth original pleas and three additional pleas. To defendant's pleas 1, 2, 3, 4, 5, and 7, demurrer was sustained, while plaintiff's motion to strike was granted as to the pleas 8 and 9. Since the court's rulings on some of the pleas are determinative of the present writ of error, no other questions will be discussed in this opinion save the pleadings in question considered in the light of the attacks directed against their sufficiency.
The defendant's sixth plea denied that plaintiff was indebted to one Armstrong, as mortgagee, in the amount set forth in the declaration, or any other amount; the declaration having alleged that a mortgage clause attached to the policy of insurance made the loss payable to said Armstrong as mortgagee, to the extent of his interest, which was alleged to be $950, plus 8 per cent. interest from February 23, 1932. The first additional plea averred that the condition of the insurance voiding the plaintiff's policy, if the insured's interest was other than obsolute ownership, had been breached, in that plaintiff held only the naked legal title and that the sole ownership was in others than the plaintiff. The second amended plea averred that plaintiff had breached the conditions of his policy in that he had concealed a material fact by not revealing that he was not the sole owner but merely held the naked legal title to the insured property. The third amended plea averred that fraud had been committed by the plaintiff in the procurement of his policy of insurance in that parties other than plaintiff were the beneficial owners, and that the beneficial owners had a record of previous fires, and that plaintiff had connived with the beneficial owners to defraud defendant by inducing the insurance company to issue a policy of insurance that it would not have issued to the beneficial owners directly. As has been heretofore stated, the trial of the cause in the court below was confined entirely to the defendant's sixth and tenth pleas, together with the three additional and amended pleas hereinabove summarized.
We pass now to a consideration of the defendant's other pleas to which either demurrers were sustained or motions to strike granted, in order that we may determine whether or not error was committed by the trial court in depriving the insurance company of a defense, which, under the law, it was entitled to insist upon and assert.
Under Florida's valued policy laws, sections 6240, 6241, C. G L., sections 4281, 4282, R. G. S., the value of a fire insurance policy, upon total loss by fire or lightning, must be paid to the insured. These statutes, however, do not preclude defenses based on criminal conduct of the insured or upon his affirmative fraud in procurement of insurance. Hartford Fire Ins. Co. v. Redding, 47 Fla. 228, 37 So. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118.
In an attempt to invoke the doctrine of the case just cited, the defendant's first and second pleas set up as a defense that the insured dwelling was infected with 'termites' or 'dry rot' at or before the issuance of plaintiff's policy and/or that after the issuance of said policy the insured dwelling became so infected.
There was no allegation in the first and second pleas of fraud or concealment on plaintiff's part in connection with the alleged condition of 'termites' or 'dry rot' hence the insurer cannot now be permitted to avoid its contract of insurance when it is admitted by the pleas in question that the condition of which it now complains existed at the inception of its contract and could readily have been ascertained by it had it caused to be made an inspection of the insured property.
As to defendant's second plea of depreciation by reason of 'termites' or 'dry rot' attacking the property insured after the policy of insurance was issued, the law is that valued policy statutes, such as ours, will not permit a reduction of the amount of insurance specified in the policy by reason of depreciation in value caused by use, decay, accident, casualty, or otherwise, where such change arises from a supervening cause occurring subsequent to the issuance of the policy, and the allowance of such reduction will not amount to a change of the value fixed by the parties pursuant to the statute at the time the contract of insurance was issued. 6 Cooley's Briefs on Insurance, 501. In this case, however, the property was valued at $3,000 at the time of the issuance of the insurance, and no fraud in procurement of the contract was set up in either the first or second pleas. So the demurrer to each of said pleas was properly sustained in a case where it appeared that the entire building had been lost and there was no supervening cause alleged to take anything of value away from it and save it from the fire so as to entitle the insurer to credit for the amount of the saving.
Demurrer was sustained to the third plea, which alleged that after the issuance of the policy the risk was increased without defendant's consent, in that plaster was removed from the walls which was or should have been known to plaintiff. The plea does not allege that the plaster remained off the walls at the time of the fire or that plaintiff, after having learned of the falling plaster, failed to make the necessary repairs.
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