Home Ins. Co. v. Olmstead
| Decision Date | 22 February 1978 |
| Docket Number | No. 49980,49980 |
| Citation | 355 So.2d 310 |
| Parties | The HOME INSURANCE COMPANY v. M. T. OLMSTEAD and Charline Olmstead. |
| Court | Mississippi Supreme Court |
Watkins & Eager, Velia Ann Mayer, P. N. Harkins, III, Jackson, for appellant.
John G. Corlew, Pascagoula, Frank J. Hammond, Jr., Moss Point, for appellees.
Before INZER, SUGG and WALKER, JJ.
WALKER, Justice, for the Court:
This is an appeal from a judgment entered by the Circuit Court of Jackson County, Mississippi, after a jury verdict in favor of the appellees, M. T. and Charline Olmstead, plaintiffs in the court below, against the appellant, Home Insurance Company. The amount of the judgment was $23,160 in actual damages, plus $4,340 in punitive damages, plus interest at the legal rate on the sum of $16,000 from the date of loss, September 7, 1969.
This case arose out of a fire loss sustained by the Olmsteads on September 7, 1969. Hurricane Camille struck the Mississippi Gulf Coast on August 18, 1969. At the time of Hurricane Camille, the Olmsteads' property was insured by the Hartford Insurance Company through the Davis Insurance Agency in Moss Point, Mississippi. On or about August 20, 1969, the Olmsteads went to the Gary Smith Agency in Pascagoula inquiring about fire insurance on their home. Mrs. Jean Langner, the Smith Agency underwriter for fire insurance, testified that she asked the Olmsteads if they had any damage as a result of Hurricane Camille, and they told her that they did not. Mrs. Langner was not asked at trial if she ever asked the Olmsteads whether they had water in the house from the hurricane.
The Home Insurance Company issued its policy to the Olmsteads on August 21, 1969, which provided $10,000 coverage on the Olmsteads' house and $6,000 on the contents. The policy had a mortgage clause payable to J. C. Wood. By the time of the trial, the mortgage had been paid off and the Olmsteads owed Mr. Wood nothing with respect to the property.
Sometime after noon on Saturday, September 7, 1969, the Olmsteads left their house to spend the weekend with Mr. Olmstead's brother in Fort Walton Beach, Florida. When they returned on Sunday night, all they found was a pile of ashes. It was the testimony of the Olmsteads that the house and all of its contents were destroyed and that they were not able to save anything.
Mr. Olmstead contacted his attorney, Mr. Hammond, who told him to report the fire to their insurance agent. On Monday morning, Mrs. Olmstead went to the Gary Smith Agency and reported the loss. Mr. J. C. Oliver, the adjuster for the Home Insurance Company, testified that he called Mrs. Olmstead on September 13, 1969, and she gave him directions to the house and told him that they had had approximately a foot of water in it from Hurricane Camille. After examining the house site and confirming the high water marks on the property, Mr. Oliver checked with the Davis Agency regarding the possibility of a claim having been made by the Olmsteads under the Hartford policy for damage from Hurricane Camille. Although neither the Hartford nor the Davis Agency could confirm that a claim had been made, someone at the Davis Agency did tell Mr. Oliver that they were of the opinion that a claim had been made for hurricane damage. At the trial, the Olmsteads denied making a claim under the Hartford policy. It was never determined whether or not Mr. Wood, the mortgagee, made a claim.
After discovering the possibility that a claim had been made by the Olmsteads for hurricane damage, Mr. Oliver went back to the Smith Agency and interviewed Mrs. Langner. He submitted all of the information he had to the Home Insurance Company and was instructed by the company to leave a non-waiver agreement at the Smith Agency for the Olmsteads, which he did around the first of October. Mr. Oliver was instructed to suspend his investigation until the Olmsteads executed the non-waiver agreement.
The appellant first assigns as error the refusal by the trial court to grant instruction D-16, which informed the jury that their verdict should be for appellant if they found that the Olmsteads declined to submit to an examination under oath scheduled for February 4, 1970, and did not offer to submit to such an examination until June 14, 1971. The facts relating to this assignment are that on January 16, 1970, Mr. Goodman, the Home's attorney, wrote the Olmsteads a letter, with a copy addressed to Mr. Hammond, the Olmsteads' attorney, demanding that the Olmsteads present themselves at the Jackson County Courthouse in Pascagoula at 11:50 a. m. on Wednesday, February 4, 1970, for an examination under oath. On February 2, 1970, Mr. Hammond called Mr. Goodman on the telephone and told him that the Olmsteads would not be able to make it on February 4, 1970, because they had to go out of town to take care of a sick relative. Mr. Hammond testified that at this time, and on several subsequent occasions, he attempted to make it clear to Mr. Goodman that he was not refusing entirely to submit his clients to the examination under oath, but that his refusal was only limited to February 4, 1970, and they would be available at any reasonable time thereafter. Mr. Hammond admitted, however, that he did not know what Mr. Goodman's understanding was and that he never suggested any specific dates to Mr. Goodman. Mr. Goodman did not testify at the trial.
On February 2, 1970, Mr. Goodman wrote Mr. Hammond confirming their telephone conversation of that date. Mr. Goodman also sent Mr. Hammond a proof of loss form as Mr. Hammond had requested in their telephone conversation. On March 6, 1970, Mr. Hammond wrote a letter back to Mr. Goodman enclosing the signed proof of loss. Mr. Hammond's letter of March 6, 1970, did not mention his offer to have his clients examined under oath after February 4, 1970. On March 9, 1970, Mr. Goodman replied to Mr. Hammond's letter of March 6, 1970, and asked Mr. Hammond to confirm in writing that his clients had refused to submit to the examination under oath on February 4, 1970. Mr. Hammond did not reply to this letter. The first reference to...
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