Rist v. Commercial Union Ins. Co.

• Decision Date: 08 October 1979
• Docket Number: No. 64330,64330
• Parties: Charles Ray RIST v. COMMERCIAL UNION INSURANCE COMPANY.
• Court: Louisiana Supreme Court

Page 113

376 So.2d 113

Charles Ray RIST v. COMMERCIAL UNION INSURANCE COMPANY.

No. 64330.

Supreme Court of Louisiana.

Oct. 8, 1979.

Steven H. Beadles, Cook, Clark, Egan, Yancey & King, Shreveport, for defendant-applicant.

Harvey P. DeLaune, DeLaune & Blondeau, Bossier City, for plaintiff-respondent.

MARCUS, Justice.

Charles Ray Rist instituted this action to recover under a ten thousand dollar fire insurance policy issued by Commercial Union Insurance Company after his vacant home near Sarepta, Louisiana, was totally destroyed by fire on August 21, 1976. Commercial Union's answer generally denied the allegations of the petition and set forth affirmatively the defense of arson. Commercial Union also asserted a reconventional demand against Rist for $5,006.13, the amount paid to his mortgagee under a loss-payee clause in the policy.

The trial court rendered judgment in favor of Rist and against Commercial Union for $4,993.87 (balance of policy proceeds) together with legal interest and costs, finding that, although the fire was of incendiary origin, Commercial Union had failed to establish that Rist was responsible for it. The court of appeal affirmed. ¹ On Commercial Union's application to this court, we granted certiorari to review the correctness of this decision. ²

By raising the affirmative defense of arson, the insurer has the burden of establishing, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. An insurer need not prove its case beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68 (1952). In addition, we stated in Sumrall :

Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire. . . . Accordingly, the questions presented in matters of this sort are answered by the particular facts of the controversy. (cases omitted)

The sole issue presented for our determination is whether, under the facts of this case, Commercial Union established by a clear preponderance of the evidence that the fire in question was of incendiary origin and that Rist was responsible for it. If so, Commercial Union would have sustained its defense to Rist's demand and, if not, Rist would be entitled to recover under the policy.

First, we must decide whether the insurer established that the fire was of incendiary origin. Although there were no eyewitnesses as to who started the fire, a neighbor who lived across the road from the Rist home testified that the fire began about 3:00 a. m. Saturday, August 21, 1976. He stated that the fire appeared to have begun from within the house and an explosion occurred shortly thereafter causing a large window frame and several window screens to be blown from the burning structure out into the yard. Because the gas, electricity and water were not connected at the time of the fire, the state fire inspectors concluded that an accelerant had been placed in the house to cause an explosion severe enough to blow an entire window frame from the structure. Rist admitted that he had no explosives of any kind in the house prior to the fire. The trial court found, and we agree, that the evidence clearly supports the conclusion that the fire was of incendiary origin.

Next, we must determine whether the insurer proved that Rist was responsible for the fire. This presents a closer question. First, the insurer introduced proof of Rist's motive for destroying his house. The evidence was uncontradicted. Rist's house had been vacated for approximately six months before the fire because Rist had been living with his girlfriend; Rist had been unsuccessful in his attempts to sell the house for $10,000. The policy Rist purchased from Commercial Union, also for $10,000 in amount, became effective June 1, 1976, approximately two and a half months before the fire, although there was some reference by Rist that he had had insurance on the property at some time in the past. In addition, Rist had previously declared bankruptcy and had a bad credit rating requiring him to make credit purchases using his parents' name. The insurer also showed that Rist had several debts that he had been unable to pay, including a nineteen hundred dollar judgment; Rist admitted that he had tried to sell the house in order to pay off the judgment.

The record also reveals that Rist had purchased several items of new furniture, including a washer, dryer, queen-size bed, sofa and chair, and a television. Shortly before the fire, Rist moved several...