Miller v. Underwriters at Lloyd's London, England

• Decision Date: 26 January 1981
• Docket Number: No. 13884,13884
• Citation: 398 So.2d 654
• Parties: Leroy MILLER v. UNDERWRITERS AT LLOYD'S LONDON, ENGLAND.
• Court: Court of Appeal of Louisiana — District of US

Page 654

398 So.2d 654

Leroy MILLER v. UNDERWRITERS AT LLOYD'S LONDON, ENGLAND.

No. 13884.

Court of Appeal of Louisiana, First Circuit.

Jan. 26, 1981.

Donald H. Lee, Seal, Lee, Branch & Brown, Bogalusa, for plaintiff.

William A. Porteous III, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendant.

Before ELLIS, COLE and WATKINS, JJ.

WATKINS, Judge.

This is a suit brought by Leroy Miller to recover for the destruction by fire of a certain tenant dwelling owned by plaintiff, which loss plaintiff contends was covered by a fire insurance policy issued by Underwriters at Lloyd's, London, England. Defendant contends there was no coverage because the policy described the property as "owner occupied" and because the property had been "vacant or unoccupied" for more than 60 days in violation of the "permission granted clause" in the policy. The trial court found there was coverage under the policy, and rendered judgment accordingly, awarding plaintiff the sum of $5,000.00. We reverse, and dismiss plaintiff's suit.

The property that was destroyed by fire on November 13, 1978, was located at 1505 Dan Street, Bogalusa, Louisiana. Plaintiff and his wife lived in the Pooles Bluff Community, some four miles away. Plaintiff's agent, James Stevenson, president of GAR Real Estate & Insurance Agency, Inc., Bogalusa, Louisiana had secured fire coverage on the tenant dwelling since 1969. He was fully aware of the fact it was not occupied by Miller. The last policy issued was a surplus line insurance policy with the insurer being defendant, Underwriters at Lloyd's. This policy which commenced February 1, 1978, was obtained by GAR through Dupuy Busching General Agency, Inc., Jackson, Mississippi, an insurance broker. The policy was delivered to First Financial Services, Bogalusa, mortgagee of the tenant property, and a certificate of insurance was delivered to Miller. Both the policy and certificate indicated the property was "owner occupied". In addition, a "permission granted clause" was contained in an endorsement attached to the policy, which clause read as follows:

"PERMISSION GRANTED CLAUSE (OCCUPANCY CLAUSE): In the event the property insured under this policy becomes vacant or unoccupied or if there is a change of occupancy from that indicated in the policy for more than 60 days, then the insured must notify the Company in writing and the insured's failure to so notify the Company in writing will render the coverage on that item null and void and the insured shall be entitled to a pro rata return premium as of that date, except, if this policy shall cover more than four dwellings of four families or less, the vacancy or unoccupancy period is extended to 90 days. Vacancy or unoccupancy of part of the units of a multiple family dwelling shall not be deemed as vacancy or unoccupancy."

The last tenant to reside on the premises was Gus Tynes, who moved out about June 27, 1978. All utilities were cut off, and all furnishings removed. Miller went to the V.A. Hospital intermittently for about a month after Tynes vacated the premises. He then commenced a rather protracted period of repairs to the premises, the repairs still having been in progress, although proceeding extremely slowly, at the time of the fire. Miller testified that he slept on the premises in a sleeping bag on several occasions.

We find that the premises were not owner occupied in compliance with the terms of the policy. Clearly the premises were occupied by a tenant, not by the owner at the time when the policy was issued and the certificate of insurance was delivered to Miller. Miller appears not to have called GAR's, Dupuy Busching's, or Underwriters' attention to the incorrectness of the description "owner occupied". We would find lack of owner occupancy alone sufficient reason to hold there was no coverage, but in addition, we see, Miller failed to notify Underwriters of the fact that the property had been "vacant or unoccupied" for more than 60 days, thereby violating the permission granted clause of the policy.

Appellee cites Burrell v. Seguros America Banamex, S.A., 316 So.2d 177 (La.App. 4th Cir.1975), writ refused 320 So.2d 561 (1975), to support his claim. In that case it was held that an apartment was not "vacant or unoccupied", as the daughter of the insured owner visited the apartment to clean it and to exchange clothes once a week. Appellee argues that similarly in the present case...