Brooks v. Blue Ridge Ins. Co.

• Decision Date: 15 August 1984
• Docket Number: No. 07-82-0335-CV,07-82-0335-CV
• Citation: 677 S.W.2d 646
• Parties: Roger M. BROOKS and Jean K. Brooks, Appellants, v. BLUE RIDGE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 646

677 S.W.2d 646

Roger M. BROOKS and Jean K. Brooks, Appellants, v. BLUE RIDGE INSURANCE COMPANY, Appellee.

No. 07-82-0335-CV.

Court of Appeals of Texas Amarillo.

Aug. 15, 1984.

Rehearing Denied Sept. 11, 1984.

R.A. Wilson, Amarillo, for appellee.

Cary Schachter, Theresa Collier, Amarillo, for appellants.

Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.

REYNOLDS, Chief Justice.

Roger M. Brooks and his wife, Jean K. Brooks, are aggrieved by a take-nothing judgment rendered on a jury verdict in their action to hold Blue Ridge Insurance Company liable under its policy of insurance for the fire loss of their furniture and other personal property. Because we conclude that on the theories litigated, the Brooks failed to establish their right to recover as named insureds, but they were wrongfully denied a proper submission of the theory that their lost personalty was insured under the policy's unscheduled personal property provision, we affirm in part and reverse and remand in part.

The Brooks owned a home in Amarillo covered by a standard homeowners policy of insurance issued by Blue Ridge. The policy provided coverage of unscheduled personal property in this language:

COVERAGE B--UNSCHEDULED PERSONAL PROPERTY owned, worn or used by the Insured, including members of his family of the same household and, at the option of the Insured, property of others (except roomers or tenants) while on the premises of the described dwelling.

The policy remained in force at all times during the occurrences giving rise to the Brooks' alleged causes of action.

The Brooks contracted to sell their home to Dr. and Mrs. Boyd. The contract provided for the Boyds' assumption of the existing property loan, proration of insurance to the date of closing, and delivery of possession to the Boyds on 16 December 1977.

The sale was closed on 15 December 1977. On that date, title to the property was conveyed to the Boyds by the Brooks' execution of a warranty deed in which it is recited that they "do hereby transfer and assign to the [Boyds] ... all insurance policies now owned by us or held for our account by the holder of the above described note [evidencing the assumed existing property loan]." At the same time, Mr. Brooks testified, the Brooks signed an undated form authorizing the holder of the note "to transfer the insurance policy or policies held with said loan to the said buyer [the Boyds] together with all funds now in the reserve for ... insurance premiums ...."

Ordinarily, the Brooks' delivery of their deed would have given possession of the premises to the Boyds, Huddleston v. Fergeson, 564 S.W.2d 448, 453 (Tex.Civ.App.--Amarillo 1978, no writ); however, to permit Mr. Brooks to make arrangements to move the contents of the home, the Brooks and the Boyds agreed in writing sometime prior to closing that, among other things,

Possession will be extended to not later than December 23, 1977. Seller [the Brooks] will be charged $13.36 daily from December 16, 1977 daily (sic ) to posession (sic ) date when Sellers are moved out of the house. The money for the repairs and the rent will be held in escrow by the title company and paid to the Boyd's (sic ) when they possess.

Following the December 15 closing, the Brooks' furniture and other personal property remained in the house, keys to which were possessed by both the Brooks and the Boyds.

Two days later in the early morning of Saturday, December 17, the house and the Brooks' personal property situated therein were destroyed by fire. On the following Monday, December 19, the agent issuing Blue Ridge's policy of insurance, with knowledge of the fire, formally assigned the policy to the Boyds, showing December 16 as the effective date.

Blue Ridge denied the Brooks' claim made under the policy for their loss. The denial was grounded on the assertion that the policy was not in effect as to the Brooks when the fire occurred.

Then, the Brooks instituted suit against Blue Ridge and its agent. They sought to recover from Blue Ridge as insureds under the policy, alternatively alleging other theories of recovery, one of which was under Coverage B. Alternatively, the Brooks alleged that if their loss was not covered by the policy, the agent was liable to them on the theory of negligence.

Blue Ridge and its agent separately answered with denials and defenses. Blue Ridge specifically pleaded that the Brooks had assigned all interests in the policy and were no longer assured under the policy at the date of the fire, and that their personal property was excluded from coverage under Coverage B because they were the tenants of the Boyds.

Subsequently, the Brooks moved for a partial summary judgment on the issue of liability. Blue Ridge and its agent separately moved for summary judgment on the entire cause. The trial court denied the Brooks' motion, granted the motions of Blue Ridge and its agent, and summarily rendered judgment that the Brooks take nothing. The Brooks appealed.

On appeal, we affirmed that portion of the judgment decreeing that the Brooks After the reversal and remand, the Brooks amended their petition to seek recovery from Blue Ridge on the theory that their "personal property [situated in the residence and destroyed by fire] was insured under the policy [issued by Blue Ridge]." Upon a jury trial on the pleadings, the Brooks again suffered a take-nothing judgment. The judgment was rendered when the jury, answering the three numbered special issues submitted, found (1) that before the fire, the Brooks had transferred the ownership of the policy of insurance to the Boyds, (2) that at the time of the fire, the Brooks were tenants of the Boyds, and (3) that $23,600 was the pecuniary loss or damage caused by the fire to the Brooks' property. The Brooks again have appealed.

                take nothing from the agent, but we reversed that portion of the judgment decreeing that the Brooks take nothing from Blue Ridge and remanded that action to the trial court.  Brooks v. Blue Ridge Insurance Company, et al., No. 9288 (Tex.App.--Amarillo, Oct. 30, 1981, no writ).  In our unpublished opinion, we held that Blue Ridge failed to prove its entitlement to summary judgment because it did not establish conclusively each element of the tenancy exception it relied upon since it had not proved that the Brooks had the right to exclusive possession of the property, "[o]ne of the 'constituting and essential elements of tenancy' ...." Id. at p. 5.   Our judgment, from which no appeal was taken, became final
                

Before the jury submission, the Brooks moved unsuccessfully for an instructed verdict on the ground that Blue Ridge had failed to establish an assignment of the unscheduled personal property coverage, and they objected ineffectively to the submission of the first special issue because "it speaks of transfer the (sic ) ownership of the policy of insurance when in fact it should be the transfer of the ownership of the unscheduled personal property covered." In connection with the objection, the Brooks contended to the court "that there are two severable coverages and there must be a transfer that is clearly (sic ) as to both in order to be valid."

In presenting their appeal in relation to these matters, the Brooks have not complained by point of error of the submission of the first special issue, nor of the evidential support for the jury's finding thereon, nor of the refusal of the court to separately inquire about the transfer of the ownership of the unscheduled personal property coverage. Nor have they asserted by a point of error that the evidence conclusively establishes that they did not transfer or assign the Coverage B insurance. Instead, the Brooks drafted the fourth of their five points of error in this language:

Because the evidence was factually and legally insufficient to establish that plaintiffs [the Brooks] assigned their unscheduled personal property insurance, the court erred in failing to grant an instructed verdict and in submitting Special Issue No. 1 to the jury, and in entering judgment based upon the jury's finding in Special Issue No. 1.

And they contend, by their fifth point, that the court erred in excluding the proffered testimony by Mr. Brooks, which was preserved by bill of exception, that he did not intend to assign the unscheduled personal property coverage for their personal property located in the house.

A study of the record leads us to the conclusion that we are not authorized to consider whether the points have merit. The fourth point, although appearing at first light to be a multifarious one of ambiguous nature and offering sundry contentions of error, is in actuality, when measured by the development of it under the criterion of O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976), an insufficient evidence point of error. This nature of the point obtains from a critical reading of the point itself and the argument thereunder by the Brooks, who, reciting some record evidence of the transfer and assignment of the policy of insurance, submit with references to authorities speaking to factually insufficient evidence contentions that the evidence is too meager to create a It is to be noticed that the Brooks' trial theories of recovery, advanced via their general pleadings that their destroyed personal property was insured under the policy, which Blue Ridge pleaded had been assigned before the fire and otherwise furnished no insurance to the personalty, were these: (1) they were the named insureds under Coverage B since they had not intended to, and did not, assign that coverage, or (2) if they had assigned the policy coverage, their personal property still was insured, with the consent of the Boyds, under Coverage B. As previously mentioned, the Brooks did object to the submission of the first special issue because it did not submit their theory of recovery as insureds. However, although their objection was in the approved manner of pointing...