Ramsay v. Cooper, No. 76-1542

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore COFFIN, Chief Judge, ALDRICH and CAMPBELL; LEVIN H. CAMPBELL
Citation553 F.2d 237
PartiesHarold S. RAMSAY, Plaintiff, Appellant, v. Bessie M. COOPER, Defendant, Appellee.
Docket NumberNo. 76-1542
Decision Date30 March 1977

Page 237

553 F.2d 237
Harold S. RAMSAY, Plaintiff, Appellant,
v.
Bessie M. COOPER, Defendant, Appellee.
No. 76-1542.
United States Court of Appeals,
First Circuit.
Argued March 4, 1977.
Decided March 30, 1977.

Page 238

Russell F. Hilliard, Concord, N. H., with whom Maynard, Dunn & Phillips, Concord, N. H., was on brief, for plaintiff-appellant.

Howard M. Moffett, Concord, N. H., with whom Orr & Reno, Professional Assn., Concord, N. H., was on brief, for defendant-appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The will of Harold Ramsay's father left a life estate in a furnished house and land to Mrs. Bessie M. Cooper, and the remainder to Ramsay. Mrs. Cooper was to "keep said property in reasonably good repair and properly insured against fire loss." 1

The testator died in 1955. Thereafter Mrs. Cooper occupied the property. Initially she insured it against fire only to the extent of $9,000. On January 6, 1970, Harold Ramsay's attorney wrote to Mrs. Cooper that he and his client felt the buildings on the property were underinsured, and were "of the opinion that you should have not less than $25,000 coverage on the house and contents." Mrs. Cooper's attorney promptly replied, enclosing an endorsement to Mrs. Cooper's policy which increased the insurance to $25,000. In 1973, however, Mrs. Cooper unilaterally reduced the insurance to $20,000 without informing Ramsay. 2 The house burned on October 15, 1975 and was rendered uninhabitable. Ramsay commenced this action a month later, requesting payment of the insurance into court and a determination of the respective rights and interests of himself and Mrs. Cooper. Thereafter, the $20,000 in insurance proceeds was paid into an escrow account. By agreement of the parties, the property was sold for $16,200 and that amount was also paid into the escrow account, for a total of $36,200. The parties stipulated that an appraisal, done after the fire, put the value of the property before loss at $48,000.

Ramsay moved for summary judgment, contending that Mrs. Cooper's life estate had terminated as a matter of law. Mrs. Cooper cross moved for summary judgment, denying that her life estate had terminated.

Page 239

She requested division of the $36,200 on the basis of the actuarially computed value of her life interest "less any damages which the court determines may be due the plaintiff."

The district court ruled that Mrs. Cooper's life estate had not terminated. On the issue of damages, it held that Mrs. Cooper was clearly negligent in failing to insure up to $25,000, but that Ramsay was estopped from asserting an insurable value for the building in excess of $25,000, as he had proposed that amount in 1970. On the basis of actuarial computations which are not in dispute the court divided the escrow account, awarding approximately $24,000 to Ramsay and $12,000 to Mrs. Cooper. The court's division included an award of damages to Ramsay taken from Mrs. Cooper's life share amounting to the value of Ramsay's remainder interest in $5,000.

We reject Ramsay's contention that Mrs. Cooper forfeited the life estate for failure to keep the property adequately insured. The district court considered the question carefully and as we agree in substance with its analysis, we need not repeat it. See, in addition to the cases it cites, Borchers v. Taylor, 83 N.H. 564, 569, 145 A. 666 (1929) and Moore v. Moore, 69 N.H. 420, 422, 45 A. 233 (1898). Appellant insists that he cannot now be adequately recompensed for the underinsurance because "(t)he fund amounts to only 3/4 of the value of the building." But if the building had been properly insured and a loss had occurred, appellant would not have then received the whole value of the property. Either the property would have been restored, and the life tenant would have continued in possession of the restored property until her death, or else upon sale, the remainderman would have received, as in the present case, a part of the total proceeds based upon subtracting the actuarially computed value of the life interest. As the court below indicated, the escrow fund, while less than the whole value of the property, is sufficient to pay Ramsay the value of his interest, including damages for the loss of insurance. To pay Ramsay the entire fund would provide him with a windfall to the extent the fund exceeds what he would have received had there been appropriate fire insurance.

There is likewise no merit in the claim that Mrs. Cooper's failure to restore the property after the fire worked a forfeiture because it violated the condition in the will that she "keep said property in reasonably good repair". Her liability to the remainderman in the event of non-wilful fire damage is measured by the fire insurance provision, not by the duty to keep the property in reasonable repair. The property was sold by agreement of both parties shortly after the fire, with no...

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17 practice notes
  • Bangor Baptist Church v. STATE OF ME., ETC., Civ. A. No. 81-0180-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 26, 1982
    ...facts in dispute, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Ramsay v. Cooper, 553 F.2d 237, 240 n. 8 (1st Cir.1977), and that defendants are entitled to judgment as a matter of law in light of all undisputed facts and any reasonable infe......
  • Stewart v. Ryan, No. 930329
    • United States
    • North Dakota Supreme Court
    • July 18, 1994
    ...See Pfeil v. Rogers, 757 F.2d 850 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Ramsay v. Cooper, 553 F.2d 237 (1st Cir.1977). See generally 10A Wright & Miller, Federal Practice and Procedure 2nd, § 2722 (1983); 6 Moore's Federal Practice, p 56.22 (199......
  • Massaro v. Vernitron Corp., Civ. A. No. 80-2263-G.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 1, 1983
    ...to issues on which plaintiffs Massaro and Slater would have the burden of proof should the case go to trial. Ramsay v. Cooper, 1 Cir.1977, 553 F.2d 237, 240-41 n. 8; Adickes v. S.H. Kress & Co., 1970, 398 U.S. 144, 159-161, 90 S.Ct. 1598, 1609-1610, 26 L.Ed.2d 142. All inferences from the f......
  • Coleman v. BAC Servicing, 2100453.
    • United States
    • Alabama Court of Civil Appeals
    • September 7, 2012
    ...setting forth such facts as would be admissible in evidence,” could not be considered under Rule 56, Fed.R.Civ.P.); Ramsay v. Cooper 553 F.2d 237, 240 (1st Cir.1977) (holding that “consultant's report ... not sworn to nor accompanied by a proper affidavit [was].... not competent to be consi......
  • Request a trial to view additional results
17 cases
  • Bangor Baptist Church v. STATE OF ME., ETC., Civ. A. No. 81-0180-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 26, 1982
    ...facts in dispute, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Ramsay v. Cooper, 553 F.2d 237, 240 n. 8 (1st Cir.1977), and that defendants are entitled to judgment as a matter of law in light of all undisputed facts and any reasonable infe......
  • Stewart v. Ryan, No. 930329
    • United States
    • North Dakota Supreme Court
    • July 18, 1994
    ...See Pfeil v. Rogers, 757 F.2d 850 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Ramsay v. Cooper, 553 F.2d 237 (1st Cir.1977). See generally 10A Wright & Miller, Federal Practice and Procedure 2nd, § 2722 (1983); 6 Moore's Federal Practice, p 56.22 (199......
  • Massaro v. Vernitron Corp., Civ. A. No. 80-2263-G.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 1, 1983
    ...to issues on which plaintiffs Massaro and Slater would have the burden of proof should the case go to trial. Ramsay v. Cooper, 1 Cir.1977, 553 F.2d 237, 240-41 n. 8; Adickes v. S.H. Kress & Co., 1970, 398 U.S. 144, 159-161, 90 S.Ct. 1598, 1609-1610, 26 L.Ed.2d 142. All inferences from the f......
  • Coleman v. BAC Servicing, 2100453.
    • United States
    • Alabama Court of Civil Appeals
    • September 7, 2012
    ...setting forth such facts as would be admissible in evidence,” could not be considered under Rule 56, Fed.R.Civ.P.); Ramsay v. Cooper 553 F.2d 237, 240 (1st Cir.1977) (holding that “consultant's report ... not sworn to nor accompanied by a proper affidavit [was].... not competent to be consi......
  • Request a trial to view additional results

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