All Phase Const. Corp. v. Federated Mut. Ins. Co., 1--1075A173

• Decision Date: 03 February 1976
• Docket Number: No. 1--1075A173,1--1075A173
• Citation: 340 N.E.2d 835,168 Ind.App. 19
• Parties: ALL PHASE CONSTRUCTION CORPORATION, Plaintiff-Appellant, v. FEDERATED MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 835

340 N.E.2d 835

168 Ind.App. 19

ALL PHASE CONSTRUCTION CORPORATION, Plaintiff-Appellant, v. FEDERATED MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 1--1075A173.

Court of Appeals of Indiana, First District.

Feb. 3, 1976.

Robert L. Baker, Baker, Barnhart & Andrews, Bloomington, for plaintiff-Appellant.

Richard S. Erving, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for defendant-appellee.

ROBERTSON, Chief Judge.

This is an appeal from a summary judgment in favor of the defendant-appellee (Federated) and against plaintiff-appellant (All Phase).

The issue concerns whether or not All Phase, as a subcontractor, had an insurable interest in drywall materials, both installed and awaiting installation, which were destroyed by a fire of undetermined origin at an apartment construction project. Federated had rejected All Phase's claim for the lost material.

Federated argues that by the terms of the contract All Phase signed with the general contractor, All Phase relinquished title to the materials upon delivery to the job site and All Phase also agreed, through the contract, to waive all lien rights.

All Phase contends that the contract also provided that it could not be paid until their work was accepted by the contractor. Because the fire occurred after installation, but before acceptance, All Phase asserts the existence of a pecuniary loss for that material as well as uninstalled materials destroyed.

While the existence or non-existence of title and lien rights may be helpful in determinign an insurable interest they need not be the determining factor. The primary consideration is stated as follows:

'Anyone has an insurable interest in property who derives a benefit from its existence or would suffer a loss from its destruction whether or not he has title or a secured interest in the property. A right of property is not essential. Any limited or qualified interest or any expectancy of advantage is sufficient.' Ebert v. Grain Dealers Mutual Insurance Company (1973), Ind.App. 303 N.E.2d 693, at 697.

Or stated in another way:

'The usual rule customarily followed is that an interest exists when the insured derives pecuniary benefit or advantage by the preservation or continued existence of the property or will sustain pecuniary loss from its destruction. Reasonable expectation of benefit from preservation of the property is thus sufficient; or liability to loss from damage to it will be sufficient.' (Footnotes Omitted.) 4...