American Hardware Mut. Ins. Co. v. Mitchell, 92-SC-687-DG

• Decision Date: 28 October 1993
• Docket Number: No. 92-SC-687-DG,92-SC-687-DG
• Citation: 870 S.W.2d 783
• Parties: AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Appellant, v. Shirley MITCHELL, Forest D. Mitchell, The Bank Josephine, City of Prestonsburg, Kentucky, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 783

870 S.W.2d 783

AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Appellant, v. Shirley MITCHELL, Forest D. Mitchell, The Bank Josephine City of Prestonsburg, Kentucky, Appellees.

No. 92-SC-687-DG.

Supreme Court of Kentucky.

Oct. 28, 1993.

Rehearing Denied March 24, 1994.

David B. Sloan, Michael K. Ruberg, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, KY, for appellant.

Jerry A. Patton, Prestonsburg, KY, for appellee, Shirley Mitchell.

Hugh Richards, London, KY, for appellee, The Bank Josephine.

Jimmy M. Hammond, Prestonsburg, KY, for appellee, Floyd County.

Larry Brown, Prestonsburg, KY, for appellee, City of Prestonsburg.

Forest D. Mitchell, pro se.

KATHRYN BURKE, Special Justice.

This case arose out of the destruction of a house owned by the Appellee, Shirley Mitchell. The home was insured by a homeowner's insurance policy issued to Shirley Mitchell and her then husband, Forest D. Mitchell. The policy listed both Forest and Shirley Mitchell as insureds. The record reveals that Shirley Mitchell was the owner of this property, having owned it at a time prior to her marriage to Forest D. Mitchell. The policy was issued on January 13, 1986 and the home was destroyed on September 29, 1986, at a time when the Mitchells were visiting relatives in Michigan. An investigation indicated that gas had leaked into the home and the gas was ignited by candles that had been left burning in the home. Forest D. Mitchell had been the last person to leave the home before they had travelled to Michigan. Forest D. Mitchell was charged with arson and acquitted. No criminal charges were brought against Shirley Mitchell.

The Appellant denied coverage to the Mitchells.

The Bank Josephine held a mortgage on the subject matter property. When The Bank Josephine filed a foreclosure action against the Mitchells, Shirley Mitchell filed a Third Party Complaint against the Appellant seeking to recover the proceeds from the homeowner's policy. Subsequent to the filing of the Third Party Complaint, the Appellant retired the indebtedness of the Mitchells with the Bank. At that time the Appellant took an assignment and subrogation agreement succeeding to all of the rights of the Bank.

Forest D. Mitchell did not respond to the suit and a Default Judgment was entered against him. A Summary Judgment was then entered against Shirley Mitchell which was appealed and the Court of Appeals reversed and remanded the matter to the trial court. The Appellant, after being denied a Petition for Rehearing, filed a Motion for Discretionary Review which was granted by this court.

The question of whether the obligations of co-insureds are joint and several appears as a case of first impression in this jurisdiction.

Principles of public policy generally prohibit recovery by an insured who fraudulently and intentionally sets fire to property covered by an insurance policy. However, several jurisdictions have held that a defense of arson will not defeat recovery under an insurance policy unless the insured directly set the fire; had knowledge and authorized its setting; or later ratified the intentional act. At least one court has held that it was not violative of public policy or of the terms of an insurance policy to permit recovery by one spouse where the evidence demonstrated that the spouse was completely free of any wrongdoing. Hildebrand v. Holyoke Mutual Fire Ins. Co., Maine, 386 A.2d 329 (1978).

The Appellant argues that for the purposes of insurance, the interests insured were joint, arising from the Mitchells' legal identity as husband and wife. Therefore the argument is that this joint interest is only one interest for the purposes of a policy of insurance. Therefore, the act of one spouse is the act of the other and there is a bar to any recovery by either of the joint interests.

This court has consistently moved away from the concept that husbands' and wives' legal status is unified as one by reason of their marriage relationship. Rather the court has recognized that the legal status of wives is separate and apart from that of their husbands. Hoye v. Hoye, Ky., 824 S.W.2d 422 (1992).

Therefore a wife and husband are individually responsible for their own separate acts and not for the acts of the other. As stated by the dissent in the case of Short v. Oklahoma Farmers Union Ins. Co., Okla., 619 P.2d 588 (1980):

"Where the property of an insured is tortiously destroyed by his or her spouse, the wrongful conduct cannot be attributed to the insured in order to prevent recovery on the policy because of the marital relationship." Id. at 593.

Therefore, the proper rule should be that an innocent spouse should not be denied coverage under any policy of insurance simply because of the marital relationship. Since insurance policies are contracts of adhesion and interpreted most strongly against the party preparing same, the policy could have been written to negate the collection of insurance by a co-insured. An insurance policy which covers the interests of more than one insured should be considered several or separate as to each person insured.

The resolution of this issue brings us to the next issue, as to whether or not a material issue of fact existed and, whether the entry of the Summary Judgment was proper. For one spouse to recover the proceeds of a policy when there is evidence that the other spouse...