Burnett v. Lloyds of London, 83-1176

Citation710 F.2d 488
Decision Date30 June 1983
Docket NumberNo. 83-1176,83-1176
PartiesW.A. BURNETT, d/b/a Burnett's Used Cars, Appellant, v. LLOYDS OF LONDON and Arkansas Surplus Lines, Inc., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Felver A. Rowell, Jr., Morrilton, Ark., for appellant.

Laser, Sharp, Haley, Young & Huckabay, Little Rock, Ark., for appellees.

Before LAY, Chief Judge, and ROSS and McMILLIAN, Circuit Judges.

PER CURIAM.

Appellant W.A. Burnett, d/b/a Burnett's Used Cars, brought this action against Lloyds of London 1 (hereinafter Lloyds) to recover under a fire insurance policy issued to him by Lloyds for the loss by fire of his tractor-trailer. As a defense to appellant's claim, Lloyds alleged that the fire which destroyed his property was the result of arson. The district court 2 tried these issues to a jury, which returned a verdict in favor of Lloyds and against appellant. On appeal appellant alleges that the district court erred in refusing to strike the testimony of Lloyds' expert witness and in denying his motion for a new trial. We affirm.

On March 19, 1980, Larry Burnett, appellant's son and employee, used appellant's tractor-trailer to transport several cars to California. Near Henrietta, Oklahoma, a fire broke out causing extensive damage to the tractor-trailer and several of the cars on the trailer. When appellant notified Lloyds of the fire, Lloyds hired Weldon Carmichael, an arson investigator, to determine the cause of the fire. Carmichael testified at trial as an expert witness that in his opinion, based upon his investigation and experience, the fire was of an incendiary origin caused by the ignition of flammable hydrocarbons such as gasoline or kerosene. Carmichael acknowledged that he could not possibly determine who set the fire. He further testified that in the course of his investigation he interviewed appellant's son, who told him that he was alone when the fire started. At the conclusion of Carmichael's testimony, counsel for appellant moved the district court to strike his entire testimony because Carmichael had not connected appellant in any way to the allegedly intentional burning. The trial court denied the motion, explaining that the jury had a right to consider Carmichael's testimony and could derive from it any reasonable inferences. We agree.

An insured's willful burning of his property is an absolute defense to an action upon a fire insurance policy. See Orient Insurance Co. v. Cox, 218 Ark. 804, 238 S.W.2d 757, 759 (1959). Consequently, the insurer must prove by a preponderance of the evidence that the insured burned his property or conspired with others to have it burned. MFA Mutual Insurance Co. v. Pearrow, 245 Ark. 795, 434 S.W.2d 269, 272-73 (1968). Carmichael's testimony in the case at bar provided direct evidence that the fire was due to arson rather than an...

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    • United States
    • U.S. Court of Appeals — Eighth Circuit
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    ...1171, 1174 (8th Cir.1984); Aimor Electric Works v. Omaha National Bank, 727 F.2d 688, 692 (8th Cir.1984); Burnett v. Lloyds of London, 710 F.2d 488, 489-90 (8th Cir.1983) (per curiam); Minnesota Mutual Life Insurance Co. v. Wright, 312 F.2d 655, 659-60 (8th Cir.1963); see generally C. Wrigh......
  • Federal Crop Ins. Corp. v. Hester
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    ...a trial court's determination of a motion for a new trial without a clear showing of abuse of that discretion. Burnett v. Lloyds of London, 710 F.2d 488, 490 (8th Cir.1983). Upon reviewing the record we find no abuse of the district court's discretion in denying the new trial motion. The di......
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    ..."preponderance of the evidence," rather than "clear, cogent, and convincing," is the proper burden of proof. See Burnett v. Lloyds of London, 710 F.2d 488, 489 (8th Cir.1983); First Nat. Bk of Decatur v. Insurance Co. of N.A., 424 F.2d 312, 317-18 (7th Cir.1970); Esquire Restaurant, Inc. v.......
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    ...determination. See, e.g., Aimor Electric Works, Ltd. v. Omaha National Bank, 727 F.2d 688, 692 (8th Cir.1984); Burnett v. Lloyds of London, 710 F.2d 488, 489-90 (8th Cir.1983); Minnesota Mutual Life Insurance Co. v. Wright, 312 F.2d 655, 659-60 (8th Cir.1963). As the Supreme Court has noted......
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