Kirk v. Safeco Ins. Co.

• Citation: 273 N.E.2d 919,28 Ohio Misc. 44
• Decision Date: 10 November 1970
• Docket Number: No. 234529,234529
• Parties: , 57 O.O.2d 49 KIRK et al. v. SAFECO INSURANCE CO. of America.
• Court: Court of Common Pleas of Ohio

Page 44

28 Ohio Misc. 44

273 N.E.2d 919, 57 O.O.2d 49

KIRK et al. v. SAFECO INSURANCE CO. of America.

No. 234529.

Court of Common Pleas of Ohio, Franklin County.

Nov. 10, 1970.

Nelson Lancione, Columbus, for plaintiffs.

Thomas E. Palmer, Columbus, for defendant.

WILLIAMS, Judge.

This matter was tried to the court, a jury having been waived by all parties. The case involves an alleged breach of an insurance contract commonly known as a 'Homeowner's Policy.' It was agreed that the plaintiffs were insured by the defendant and that the policy does cover unscheduled personal property by reason of theft within certain limitations specifically set forth in the terms of the policy.

Sucinctly stated, two questions were presented to the court for determination as follows:

1. What losses, if any, were sustained by the plaintiffs?

2. Were the actions of the defendant such as to be a breach of contract amounting to a wilful, wanton and malicious tort?

With reference to the actual losses of property, it is the finding of the court that all the items listed in plaintiff's exhibit 2 (A through F) were lost as a result of a theft occurring at the home of the plaintiffs during the evening and night hours of March 30, 1968.

All of the testimony presented substantiated the losses incurred. Even the defendant's expert witness, Charles Laisure, testified that two men could do a good job of moving the property out in three hours and could have done it in one and one-half hours if it were 'just throwed in.' The time of the theft was clearly established as between the hours of 6:30 p. m. and 11:30 p. m., a period of four hours and well within the limitations indicated by Laisure.

The measure of damages for the loss of household effects and used wearing apparel generlly is the value of its use to the owner who suffers from its deprivation and such value is not what a second-hand dealer would pay or what it would bring at a forced sale.

In determining the value of such property, the insured may give testimony which was based on prices procured from furniture stores on articles exactly like those lost. American General Ins. Co. v. Bell, 116 S.W.2d 877 (Tex.Civ.App).

Plaintiffs in this case did an unusually through job in ascertaining their losses and determining replacement prices for new articles of like kind. However, the court has some difficulty in finding that many items, such as certain tools used years ago at North American Aviation and virtually untouched since, were of full value of their use to plaintiffs at the time of the loss. The same problem arises to a lesser degree with all the property listed. The court,...