Huckabee v. Lomas & Nettleton Co.

• Decision Date: 07 April 1977
• Docket Number: No. 5690,5690
• Citation: 550 S.W.2d 371
• Court: Texas Court of Appeals
• Parties: Marion HUCKABEE, and Doris Huckabee, Appellants, v. The LOMAS & NETTLETON COMPANY, Appellee.

Page 371

550 S.W.2d 371

Marion HUCKABEE, and Doris Huckabee, Appellants, v.The LOMAS & NETTLETON COMPANY, Appellee.

No. 5690.

Court of Civil Appeals of Texas, Waco.

April 7, 1977.

Rehearing Denied May 19, 1977.

Michael R. Knox, Thompson, Coe, Cousins & Irons, Dallas, for appellants.

John Guittard, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.

OPINION

McDONALD, Chief Justice.

This is an appeal from summary judgment plaintiffs Huckabee and wife take nothing in their suit against defendant Lomas & Nettleton for wrongfully and negligently not having plaintiffs' personal property insured against loss by fire.

Plaintiffs owned a home in Mesquite, Texas which they purchased in 1963.Bettes Company had a deed of trust on the property which required it to accept funds with regular payments, to be held in escrow, and to pay insurance premiums therewith.Plaintiffs had the home insured for $17,000. and their belongings insured for $6,800.Lomas & Nettleton succeeded to the interest of Bettes.

In 1971plaintiffs' insurance company cancelled plaintiffs' insurance effective November 22, 1971.Plaintiffs requested Mesquite Insurance Agency to issue a replacement policy in like amounts, which they wrote with American States Insurance Company for $17,000. on the house and $6,800. on the belongings, effective November 19, 1971 and which they mailed to Lomas & Nettleton.Lomas & Nettleton refused to accept the policy and returned it to Mesquite Insurance Agency, although sufficient funds were in the escrow account to pay for same; but instead purchased a policy on the house for $17,000. from their own insurance agency written with Republic Insurance Company effective November 22, 1971.No insurance was purchased on plaintiffs' belongings.

On June 8, 1972, plaintiffs' house burned, being damaged $5,614.73, and plaintiffs lost personal property in excess of $6,800.

Plaintiffs' damages and loss not being paid, plaintiffs filed suit March 19, 1973 against both American States and Republic Insurance Companies, for $5,614.73 damage to the house and $6,800. loss of belongings.

American States Insurance Company filed Third Party Action against Lomas & Nettleton alleging plaintiffs had sued it on its policy; denied that its policy was in effect; alleged Lomas & Nettleton wrongfully refused to accept its policy; that Lomas & Nettleton were thus directly liable to plaintiffs; and that if it had any liability it was entitled to indemnity from Lomas & Nettleton.

Thereafter Republic Insurance Company paid plaintiffs $2,807.36 ( 1/2 of the house damage) and plaintiffs nonsuited as to Republic; and thereafter American States Insurance Company advanced plaintiffs $2,807.37, plus 80% of the $6,800. sued for; recited such as a loan without interest repayable only if plaintiffs were successful in prosecuting a claim against Lomas & Nettleton.

Plaintiffs dismissed with prejudice as to American States, and filed its 1st amended original petition against Lomas & Nettleton alleging Lomas & Nettleton wrongfully refused to accept the tendered policy with American States though escrow funds were available to pay its premium; that plaintiffs' house burned and plaintiffs were damaged in the loss of their belongings.

Lomas & Nettleton filed motion for summary judgment asserting plaintiffs had sued American States Insurance Company on the policy issued by it; that plaintiffs received from American States and Republic Insurance Companies 100% of their real property damage and received from American States 80% of their personal property damage claim; that by such action plaintiffs elected as their remedy claim on the insurance company policy; by settling they affirmed the contract; and have waived and are estopped to assert claim against Lomas & Nettleton for failure to take actions to render the policy effective.

The trial court granted such motion and rendered judgment plaintiffs take nothing.

Plaintiffs appeal on 7 points contending:

The trial court erred in ruling that the acceptance of a compromise settlement by plaintiffs constituted an election of remedies as a matter of law.

The controlling facts succinctly stated are:

Plaintiffs own a home upon which they had $17,000. insurance plus $6,800. insurance on their belongings.Lomas & Nettleton serviced the lien and were required by the Deed of Trust to make insurance premium payments.Plaintiffs' insurance carrier cancelled; plaintiffs' secured replacement policy for the $17,000. on the house and $6,800. on their belongings and caused it to be sent to Lomas & Nettleton, who refused the...