Damron v. Auto-Owners Ins. Co., AUTO-OWNERS
| Decision Date | 03 April 1991 |
| Docket Number | No. 90-5745,AUTO-OWNERS,90-5745 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Gardner Fain DAMRON, Jr., Plaintiff-Appellant, v.INSURANCE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
On Appeal from the United States District Court for the Western District of Tennessee, No. 87-01158; Todd, J.
Before MILBURN and BOGGS, Circuit Judges, and DEMASCIO, Senior District Judge *.
Plaintiff-appellant Gardner Damron, Jr., appeals from a judgment entered on a jury verdict for defendant-appellee Auto-Owners Insurance Company ("Auto-Owners") in this diversity action alleging liability for fire damage under a homeowner's insurance policy. For the reasons that follow, we affirm.
On August 25, 1987, plaintiff filed this action in the Circuit Court of Weakley County, Tennessee. Auto-Owners removed the action to federal district court on the basis of diversity of citizenship. Beginning April 25, 1990, the case was tried before a jury. On April 27, 1990, the jury returned a defendant's verdict. The district court entered judgment on the jury verdict on April 30, 1990, and plaintiff filed a notice of appeal to this court on May 30, 1990.
In the early morning hours of March 27, 1987, a fire damaged plaintiff's home located at 505 Church Street in Martin, Tennessee. The dwelling was occupied by plaintiff and his roommate of approximately one year, Larry Smith. Plaintiff's home was insured by Auto-Owners under a policy which was in full force and effect at the time of the fire with the coverage limited to $30,000 on the dwelling, $15,000 on the contents, and an additional $6,000 for living expenses. Auto-Owners paid off plaintiff's mortgage but refused to pay plaintiff's claim for damages.
The fire originated on the back porch of the dwelling which was enclosed and used as a utility room. There was a washer and dryer on the back porch as well as a 220 volt electrical outlet. None of the appliances, however, were plugged into the outlet, and there had been no prior electrical problems on the back porch.
At the time of the fire, the doors and windows of the house were locked, and there was no evidence afterward of forced entry. Appellant testified that on the night of the fire he retired at approximately 12 midnight. He was awakened by his roommate at about 4 or 5 a.m. and told that the house was on fire. Plaintiff exited the dwelling through the side exit completely unclothed accompanied by his roommate who was clad only in a pair of gym shorts. Plaintiff testified that as he exited the dwelling he observed flames in the utility room. Plaintiff stated that his roommate broke out a window in the front of the home and retrieved some clothing for plaintiff.
After plaintiff clothed himself, he left in his automobile headed for the fire department. On his way, plaintiff met a police officer, J.D. Sanders, and informed him of the fire. Plaintiff then drove to his restaurant which his mother and father were preparing to open for the day. In the meantime, Officer Sanders contacted the fire department and proceeded on toward the house to arrive at the dwelling before the fire department. Upon his arrival at the house, Sanders found a person clad only in a pair of gym shorts who identified himself as an occupant of the home. Plaintiff, driven by his father, arrived back at the burning house shortly afterward.
When fire chief Buster Williams arrived at the scene, efforts were already being made to combat the fire. As soon as the flames were extinguished, Williams entered the back porch where the fire appeared to have originated. Williams cleaned the porch and washed away the debris in an attempt to determine the cause of the fire. Williams' suspicions were raised because of "the amount of fire that was on the back porch at the time the fire department arrived" and because a fireman found a window broken out in the front of the house with glass on the inside of the house.
Later that morning, Williams returned to the scene accompanied by Mr. Bill Yates and Mr. Jerry Riggs of the state fire marshal's office. After "inventorying the premises" and "looking around in the debris," the three men did not find any signs of arson.
Thereafter, at Auto-Owners' request, Riggs and Yates returned to the scene to conduct a more extensive investigation. Both Riggs and Yates observed a burn pattern on the floor of the utility room. They also found a hole in the north wall of the utility room near the 220 volt outlet. One of the wires leading to the outlet was severed with a bead of material at each end of the wire indicating that the wire had melted. Riggs and Yates learned that dirty clothes had been piled on the floor of the utility room at or near where the fire began. They concluded that the presence of the clothes was consistent with the possibility that the clothes held heat in and created the burn pattern found on the floor. Although Riggs and Yates could not identify the cause of the fire, both stated that it was not arson.
Auto-Owners then asked Gary Haun, a former employee of the state fire marshal's office, to investigate the fire. Haun visited the scene eight days after the fire and found a two-gallon gasoline can still sitting near the door of the utility room. Haun took a series of photographs and samples. Samples of carpet and shavings from the rear utility room were sent to a forensic chemist and found to contain evidence of gasoline. From burn patterns on the windows and rear door entrance of the utility room, Haun surmised that the fire was exiting the windows and doorways from the top downward, indicating a fire that was highly concentrated in the utility room. Charring of the walls all the way down to the floor indicated that the fire originated on the floor of the utility room.
According to Haun, burn patterns on the floor were the distinctive markings of a flammable liquid pour pattern. Haun discounted the possibility that the fire originated with an electrical malfunction citing several reasons. No appliances were plugged into the outlet at the time of the fire to cause an overload. Haun also found it significant that the structural wood around and above the outlet was still intact. According to Haun's analysis, fires burn upward and outward in a "V" pattern. If the fire had originated at the outlet, Haun surmised, the structural supports above the outlet would have been consumed and very little damage would have been evident below the outlet. In this case, damage below the outlet was much the same as the damage above the outlet.
Based on Haun's observations at the scene, his experience, and the laboratory analysis indicating the presence of an accelerant, Haun offered the professional opinion that the fire was deliberately started by pouring gasoline on the floor of the utility room. Plaintiff's explanation of the presence of gasoline in the utility room was that clothes piled on the floor of the utility room included those of his roommate, some of which the roommate had worn while repairing a vehicle.
At trial, evidence was offered concerning the plaintiff's motive to burn the house. Besides paying plaintiff for the contents of the house and some incidental expenses, the policy would have paid plaintiff and his mortgage company $30,000 if the house were a total loss. If plaintiff could have collected on the policy, he could have netted approximately $6,000 above the purchase price of $23,500.
At the time of the fire, plaintiff had been the owner and operator of a restaurant (where his parents were working on the morning of the fire) for approximately two years. The restaurant was losing money as evidenced by plaintiff's tax returns. Plaintiff's 1985 return showed a loss of $5,000, and his 1986 return showed a loss of approximately $3,000. Plaintiff's mother and father worked in the restaurant to help reduce expenses.
The restaurant was plaintiff's sole source of income, and, besides making payments on the restaurant equipment, plaintiff was obligated to make payments on his automobile and his house. The record also shows that on March 13, 1987, two weeks before the fire, plaintiff was bound over to the grand jury of Weakley County on charges of possession of marijuana with intent to resell and possession of a schedule II drug....
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