Kugler v. Philadelphia Fire & Marine Ins. Co.

• Decision Date: 18 June 1953
• Docket Number: No. 14189.,14189.
• Citation: 204 F.2d 297
• Parties: KUGLER v. PHILADELPHIA FIRE & MARINE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

204 F.2d 297 (1953)

KUGLER v. PHILADELPHIA FIRE & MARINE INS. CO.

No. 14189.

United States Court of Appeals Fifth Circuit.

May 15, 1953.

Rehearing Denied June 18, 1953.

Joseph A. Gladney, Baton Rouge, La., for appellant.

Robert W. Williams, Jr., Baton Rouge, La., for appellee.

Before HOLMES, BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

Appellant brought suit to recover the face amount, $3,000, of a fire insurance policy which covered a two room dwelling upon the rear of his residence lot, together with statutory damages for delay and attorneys' fees. The complaint alleged the issuance of the insurance policy for a term of five years on February 14, 1950; a fire loss thereunder on August 3, 1950; a settlement of this claim for $189.00; a second fire loss on October 22nd, 1950, and an adjustment of it by the payment of $260.00. It was alleged that the latter fire rendered the building uninhabitable until necessary repairs could be effected and that the aforesaid repairs were in the process of being accomplished at the time of the total loss of the residence in January, 1951, and that in making such repairs, as was known to the defendant, he "was operating under clause (c)" of the endorsement Bureau Form No. 2e which granted permission "to make alterations, additions and repairs and to complete structures in course of construction * * *." In its answer, the appellee insurance company plead the violation by the insured of the vacancy clause of the policy which exempted the insurance company from liability for loss occurring "while a described building * * * is vacant or unoccupied beyond a period of sixty (60) consecutive days." Both the vacancy clause and the permission to make alterations, additions and repairs are required by statutes of Louisiana to be included in fire insurance policies in that State.

The defendant's motion to dismiss and for summary judgment was denied, as was a cross motion for summary judgment urged by plaintiff. The plaintiff sought to support his motion for summary judgment by affidavits of himself and others, as well as the depositions of the two insurance adjusters who had adjusted the losses of August 3rd and October 22nd, respectively.

The case was submitted to the court upon the pleadings, affidavits and depositions, for trial without a jury.

In a written opinion, reported in 105 F. Supp. 158, the court considered and discussed each of the legal and factual theories upon which the complainant relied and concluded that the plaintiff was in no event entitled to recover. Judgment was accordingly entered for the defendant. The trial court referred to the contention of the defendant that the settlement of the fire loss of October 22nd was induced by the false representation of the insured that the premises had, at that time, been vacant only two or three weeks, when, in truth, the...