Southern Trust Ins. Co. v. Braner, 66758
| Decision Date | 10 January 1984 |
| Docket Number | No. 66758,66758 |
| Citation | 169 Ga.App. 567,314 S.E.2d 241 |
| Parties | SOUTHERN TRUST INSURANCE COMPANY v. BRANER. |
| Court | Georgia Court of Appeals |
Dana F. Braun, Savannah, for appellant.
William J. Neville, Jr., for appellee.
Braner sued Southern Trust Insurance Company (Southern Trust) to recover fire loss benefits under an insurance policy. The insured property was a second residence for Braner who took possession of it January 1, 1982. The policy was issued by Southern Trust to Braner in December 1981 and provided coverage on the dwelling place in the amount of $40,000. On March 23, 1982, Braner increased the coverage on the dwelling place to $55,000 and obtained additional coverage of $44,000 for appurtenant private structures, unscheduled personal property, and additional living expense. On April 5, 1982, the dwelling place was completely destroyed by fire.
Braner filed the instant action August 30, 1982, after Southern Trust neither paid nor denied his claim. Southern Trust filed its answer, making a general denial of Braner's right to recover under the policy, and admitting that the policy was in effect on the date of the fire and that Braner had timely notified it of the loss and requested proof of loss forms. Braner filed a motion for summary judgment. Southern Trust filed a motion to compel Braner to answer interrogatories seeking certain financial information. Both motions came on for hearing on the same day. The trial court granted summary judgment in favor of Braner and denied Southern Trust's motion to compel. Southern Trust appeals.
1. Appellant contends that the trial court erred by granting appellee's motion for summary judgment, arguing that questions of fact existed as to its defense of arson. Braner's motion for summary judgment was supported by an affidavit setting forth facts to demonstrate fulfillment of the policy's conditions precedent to recovery. Southern Trust submitted evidence, including Braner's sworn statement in his proof of loss, showing the following: Braner had increased the overall coverage on the property from $40,000 to $99,000 two weeks before the fire; Braner's checking account was overdrawn between January 21, 1982 and May 20, 1982, the date of the fire being April 5, 1982; Braner had left the house locked the day before the fire and was the only person with access to it; and Braner had insisted upon an arson investigation saying that he knew of no other reason the fire could have occurred.
"[I]t has been held that to establish a prima facie case of incendiarism for the purpose of denying coverage under a fire policy it is sufficient to show: arson by someone; motive by the suspect; and unexplained surrounding circumstantial evidence implicating the suspect." 21B Appleman, Insurance Law & Practice 90-91, § 12682. Giving appellant, as the party opposing the motion for summary judgment, the benefit of all favorable inferences, McCarty v. Nat. Life, etc., Ins. Co., 107 Ga.App. 178, 179, 129 S.E.2d 408 (1962), we accept as true appellee's stated belief that the fire was caused by arson. However, "it is not that the fire is incendiary in origin that defeats recovery--it is that the Assured, either personally or through agents, has caused or procured the fire to be set." Hanover Fire Ins. Co. of N.Y. v. Argo, 251 F.2d 80, 81 (5th Cir.1958). Thus, there must be evidence linking appellee to the arson.
While a recent increase in coverage may be material to a showing of motive, (see Rudison v. Mich. Millers Mut. Ins. Co., 152 So.2d 407, 410 (La.1963)), the evidence in the instant case was uncontroverted that appellee increased his coverage to the amounts set forth above at the suggestion and on the advice of his insurance agent after appellee had made improvements to and furnished the dwelling place. The mere fact that appellee's checking account was in overdraft status in amounts ranging from $250 to $900 for the three months before the fire was insufficient to show a level of financial distress that would raise an inference of motive for arson. See Wallace v. State Farm Fire, etc., Ins. Co., 345 So.2d 1004, 1008 (La.1977); Headrick v. Penn. Millers Mut. Ins. Co., 232 So.2d 319 (La.1970); Barbari v. Firemen's Ins. Co., 107 So.2d 480 (La.1958); Graves v. M.F.A. Mut. Ins. Co. 446 S.W.2d 154, 158(3, 4) (Mo.1969). Appellant contends that appellee's sworn statement established that he was not financially able to purchase, maintain and make the payments on the subject property. However, we have found nothing in the statement or elsewhere in the record to support this contention. The uncontroverted evidence showed that appellee had made the payment on the property due on January 1, 1982, that the next payment was not due until January 1983, and that appellee and his wife both worked full-time, had substantial assets, and had financial back-up available from the wife's parents if needed.
Finally, no evidence of suspicious circumstances surrounding the occurrence of the fire was presented. Compare Rollins v. Great Southwest Fire Ins. Co., 162 Ga.App. 139(1), 290 S.E.2d 353 (1982); Smith v. Federated Mut. Implement & c. Ins. Co., 124 Ga.App. 693, 185 S.E.2d 588 (1971). Without more, the fact that appellee had exclusive access to the property, as many if not most property owners do, raises no inference of incendiarism on his part.
Whether a fire loss resulted from arson caused or procured by the insured is normally a question for the jury. See Argo, supra 251 F.2d at 82; Adams Machine, etc., Co. v. MFB Mut. Ins. Co., 479 F.2d 439, 440 (5th Cir.1973); Powell v. Merrimack Mut. Fire Ins. Co., 80 F.R.D. 431, 432 (N.D.Ga.1978). However, the evidence in the instant case was insufficient to raise even an inference of arson caused or procured by appellee that would have authorized a jury to find in favor of appellant. Appellee made out a prima facie case for recovery. "If the movant carries his initial burden, as was done in this case, and the respondent does not...
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