Rockingham Mut. Ins. Co. v. Hummel, 770879
| Decision Date | 12 January 1979 |
| Docket Number | No. 770879,770879 |
| Parties | ROCKINGHAM MUTUAL INSURANCE COMPANY v. Mildred HUMMEL. Record |
| Court | Virginia Supreme Court |
James V. Lane (Donald D. Litten, Conrad, Litten, Sipe & Miller, Harrisonburg, on brief), for plaintiff in error.
No brief or argument for defendant in error.
Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
In this fire insurance case, a husband intentionally burned a dwelling jointly owned and insured by both husband and wife. The innocent wife claims entitlement to a share of the insurance proceeds. The issue on appeal arose in the following manner.
Appellant Rockingham Mutual Insurance Company sued Harold Lee Hummel and appellee Mildred Hummel, his wife, to recover $21,600 paid to the Hummels as the result of an April 1975 fire which destroyed the dwelling in question located in Rockingham County. The court below sustained the wife's demurrer to an amended motion for judgment and continued the case as to the husband. We awarded the insurer a writ of error to the trial court's March 1977 order dismissing the action as to the wife.
These are the facts revealed by the insurer's amended complaint, which incorporated by reference a copy of the insurance contract, a "Homeowners Policy", in force at the time of the loss. The real estate in question was owned by the Hummels as tenants by the entirety. The policy identified "Harold Lee and Mildred Hummel" as the "Named Insured", without further defining the latter phrase. The contract's "General Conditions" provided, however, that the "unqualified word 'Insured' includes (1) the Named Insured and (2) if residents of his household, his spouse, the relatives of either, . . . ." Under the policy, property of the Hummels, including the dwelling, was insured against loss by fire and other specified perils. The contract contained the language of the Virginia Standard policy, as mandated by Code § 38.1-366, of which two clauses are relevant here:
This entire policy shall be void, . . . in case of any fraud or false swearing by the insured relating thereto.
This Company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by: . . . neglect of the insured to use all reasonable means to save and preserve the property at and after a loss, . . . .
Subsequent to the fire and after a proof of loss executed by the Hummels was filed, the insurer issued a check jointly payable to them and a Harrisonburg bank as lienholder in payment of the claim. Thereafter, the insurer discovered that the dwelling burned as the result of the intentional act of the husband. The wife was innocent of any wrongdoing in connection with the fire or the filing of the claim. When the Hummels rejected the insurer's demand for reimbursement of the amount paid to them, this suit followed.
In sustaining the wife's demurrer, the trial court agreed with a portion of the wife's argument made below. The court determined that the action against her should be dismissed because "the Amended Motion for Judgment does not allege any fraud, false swearing, or neglect to use reasonable means to save and preserve the property or any other breach of a policy condition by Mildred Hummel, nor does it allege that Mildred Hummel was paid any amount in excess of her insurable interest in the property, . . . ."
The question presented on appeal is whether under this insurance policy an innocent spouse is entitled to a share of the fire insurance proceeds payable for the destruction of real property held by husband and wife as tenants by the entirety and insured jointly, when the loss results from the wrongful and fraudulent act of the other spouse.
Although this issue is one of first impression for this court, the question has been addressed in other states. Generally, the right to compensation under a fire insurance policy in cases involving arson by one coinsured depends upon whether the interests of the coinsured are joint or severable. See Annot., 24 A.L.R.3d 450, 451. When the interests of the insureds are deemed joint and nonseparable, the courts have held that the innocent insured may not recover under the policy following a fraudulent act on the part of the other coinsured. Id.
For example, in Klemens v. Badger Mutual Insurance Co. of Milwaukee, 8 Wis.2d 565, 99 N.W.2d 865 (1959), the relevant facts and the pertinent policy provisions were almost identical to those in this case....
To continue reading
Request your trial
-
Hedtcke v. Sentry Ins. Co.
...See, e.g., Fuselier v. United States Fidelity an Guaranty Company, La.App., 301 So.2d 681 (1974); Rockingham Mutual Ins. Co. v. Hummel, 219 Va. 803, 250 S.E.2d 774 (1979); Cooperative Fire Ins. Assoc. of Vermont v. Domina, 137 Vt. 3, 399 A.2d 502 (1979); Short v. Oklahoma Farmer's Union Ins......
-
Republic Ins. Co. v. Jernigan, 86SC13
...(1979). Other cases deny recovery because the wrongdoing of one spouse is imputed on the other, see, e.g., Rockingham Mut. Ins. Co. v. Hummel, 219 Va. 803, 250 S.E.2d 774 (1979), or because a spouse cannot profit from the other spouse's wrongdoing, see, e.g., Fuselier v. United States Fidel......
-
Error v. Western Home Ins. Co.
...511 (Tex.Civ.App.1952) (relying on Jones, 250 S.W.2d 281), overruled in substance, Kulubis, 706 S.W.2d at 955; Rockingham Ins. Co. v. Hummel, 219 Va. 803, 250 S.E.2d 774 (1979); Cooperative Fire Ins. Ass'n v. Domina, 137 Vt. 3, 399 A.2d 502 (1979).3 See generally 5 J. Appleman & J. Appleman......
-
Maravich v. Aetna Life and Cas. Co.
...1217 (Okla.1980); Cooperative Fire Insurance Association of Vermont v. Domina, 137 Vt. 3, 399 A.2d 502 (1979); Rockingham v. Hummel, 219 Va. 803, 250 S.E.2d 774 (1979); Klemens v. Badger Mutual Insurance Co. of Milwaukee, 8 Wis.2d 565, 99 N.W.2d 865 (1959), overruled by, Hedtcke v. Sentry I......