State Farm Fire and Cas. Co. v. Simpson, 54606

• Decision Date: 14 August 1985
• Docket Number: No. 54606,54606
• Parties: STATE FARM FIRE AND CASUALTY COMPANY v. Robert C. SIMPSON and Gloria J. Simpson.
• Court: Mississippi Supreme Court

Page 242

477 So.2d 242

STATE FARM FIRE AND CASUALTY COMPANY v. Robert C. SIMPSON and Gloria J. Simpson.

No. 54606.

Supreme Court of Mississippi.

Aug. 14, 1985.

Rehearing Denied Oct. 2, 1985.

Harry R. Allen, Gail A. Crowell, Bryan, Nelson, Allen, Schroeder & Cobb, Gulfport, for appellant.

C.R. McRae, Henry P. Pate, Pascagoula, Alfred Felder, McComb, for appellee.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

PATTERSON, Chief Justice, for the court:

This is an appeal by State Farm Fire & Casualty Insurance Co. from a judgment of the Circuit Court of Jackson County pursuant to a fire loss. There a jury verdict favored Robert and Gloria Simpson in the sum of $22,876.25 as an award due under a policy of insurance issued to them by State Farm Fire & Casualty Co. (hereinafter State Farm). Additionally there was an award of $227,123.75 as compensatory damages and an award of punitive damages of $250,000.00. Following the verdict the trial court authorized a remittitur of $50,000.00 on the compensatory damage award and cancelled a mortgage of the Simpsons to Kimbrough Investment Company on the destroyed property.

State Farm urges numerous assignments of error which will be mentioned as required throughout the opinion. The Simpsons have cross-appealed contending the remittitur offered by the trial judge was improper.

BASIC FACTS

On August 12, 1977, Rex Foster, a State Farm Agent, received Robert Simpson's application for homeowners insurance on his residence in Gautier, Mississippi. The ensuing policy of insurance provided for coverage of $28,000.00 on Simpson's dwelling, $14,000.00 on the contents, and $6,140.00 for additional living expense. Four days before the fire which occurred on Wednesday, August 16, 1978, the Simpsons received notice of an automatic increase in coverage to $30,700.00 for the dwelling and $15,350.00 for the contents with notice of increased premium.

According to Simpson the fire was discovered when he and his family were returning at about 5:00 o'clock a.m. from a visit to the home of his sister, Mrs. Delores Freeman. A neighbor stated the firemen arrived at the scene approximately 13 minutes after their notification. At that time the structure was engulfed in flames and could not be saved. The house and contents were a total loss. Within two days following the fire State Farm advanced the Simpsons $1500.00 in additional living expenses and three days thereafter the Simpsons moved to Tuscaloosa, Alabama, to live in Robert Simpson, Sr.'s trailer park.

THE FIRE SCENE INVESTIGATION

Oren Haddock, a local State Farm Claims Representative, investigated the scene but could not determine the cause of the fire. Upon consulting with George Johnson, his supervisor, Haddock enlisted the aid of Systems Engineering Associates (hereinafter SEA) of Atlanta, Georgia, to investigate and determine the fire's origin.

On September 6, 1978, State Farm was given the report of SEA prepared by Phil Hampton, the cause and origin expert of SEA. This report had been reviewed and approved by Chief Fire Investigator Donald Zwick, an experienced fire investigator who qualified as an expert in this field. At the time he was in the employment of SEA but is now an independent investigator. Their report was well illustrated with a number of photographs supporting their determinations. The report concluded:

A flammable liquid burn pattern was uncovered in the dining room and was traced to the front door. A separate flammable liquid burn pattern was located on the kitchen floor in front of the appliances and originating from the built-in cabinet area. The blistering of the linoleum is a clear indication of an abnormally hot substance burned on top of the surface. The floor fire was so intense on On September 12, 1978, State Farm received an accelerant identification chemical analysis report from the SEA laboratories. The conclusion stated in it follows in pertinent part:

the living room floor that the concrete spalled. There was no connection between the two floor burn patterns on the linoleum floor shared by the dining room and kitchen. The burning to the inner side of the front door indicated the liquid was spread to the front door and then ignited. Based on the observations and analysis contained herein Systems Engineering Associates is of the opinion that the August 16, 1978 fire at the residence of Mr. Robert C. Simpson, Gautier, Mississippi was an intentional incendiary act by a person unknown. It is further the opinion of Systems Engineering Associates that a flammable liquid was poured on the kitchen, dining room, and living room floors to accelerate the fire. All accidental causes were considered and eliminated.

It is the opinion of the chemical laboratory of SEA Investigations Division, Inc., that no hydrocarbon accelerant was isolated from Exhibit One (1). The chemical residues of low volatility isolated from Exhibit One (1) and the comparison sample, Exhibit Two (2) were found to compare favorably with each other. Therefore the chemical residue isolated from Exhibit One (1) is not foreign.

The fact that no hydrocarbon accelerant was isolated can be interpreted by one of two ways: (1) a hydrocarbon accelerant was never present in the debris or (2) a hydrocarbon accelerant was present in the fire debris, at one time, but due to the small amount used or the intense heat of the fire, it has all been consumed.

State Deputy Fire Marshall Norman Cowart investigated the fire scene on September 18, 1978. His report largely confirms SEA's findings that the fire was started by use of a flammable liquid which seemed to have been poured in a trail from the front door to the dining room and hall area of the house. We observe the formal report was completed in early 1979, subsequent to State Farm's denial of the Simpsons' claim on November 21, 1978. However, there is some indication that State Farm had knowledge of the contents of the report before it denied the claim. The appellee disputes this and contends the contents of the report were unknown to the appellant until after the claim was denied. The record is uncertain on this point, leaving it in some doubt.

THE SWORN STATEMENTS

After receiving the SEA report State Farm concluded that sworn statements should be required as authorized by the policy. The statements of the Simpsons were taken on October 6, 1978, in Tuscaloosa, Alabama. Initially it need be noted there was no evidence in any of the reports of a break-in, and the Simpsons stated the doors to their residence were locked and no appliances were on when they left the house prior to the fire.

Simpson stated that when he returned home from work on Tuesday evening before the fire, the family decided to attend a movie. Upon leaving the movie around 11:30 or 12:00 p.m., they went to the home of his sister, Mrs. Delores Freeman. When they arrived only his sister was at home and, instead of going dancing as suggested by Gloria Simpson, they remained with Delores until her husband, Larry, arrived from his shift at Ingalls Shipyard about 12:30 a.m. They drank a six pack of beer and visited until 3:00 a.m., when the Simpsons went to a restaurant for breakfast leaving their sleeping children with the Freemans. They returned around 4:30 a.m. when Mrs. Freeman was to arise for her day's work beginning at 5:30 a.m.

Simpson also related that Glenn Reed, a real estate salesman, listed his house for sale in late 1978, and although Reed located a buyer Simpson decided not to sell because the sale was inconveniently close to the beginning of the new school year and would net only approximately $1500.00. Simpson denied he had ever told anyone As to his finances, Simpson stated he had a truck loan payment of $106.00 per month, a personal loan with monthly payments of $97.00 per month and a house payment of $250.00--$300.00 per month. At the time of the fire he acknowledged employment as a stock boy in a grocery store. He and his wife earned some income in their part-time employment as a musician and baby-sitter, respectively. Simpson emphatically denied an awareness of the cause of the fire.

that he was considering moving to Alabama and denied any of the contents of the house were removed before the fire.

The statement of Gloria Simpson was retaken on October 24, 1978, after the court reporter lost the notes of her previous statement. Her account paralleled that of her husband's except she placed the time of return from the restaurant to the Freemans' home at slight variance from that of her husband. She also related that it took approximately 13 minutes for the firemen to arrive at their flaming home from the time the fire was discovered. She was positive that neither she nor her husband had discussed moving to Alabama with anyone prior to their removal. As to finances, she stated that part of the personal loan made by her husband was to bring current three past due house payments.

UNSWORN STATEMENTS

Oren Haddock of State Farm obtained an unsworn transcribed statement from Mrs. Delores Freeman, Robert Simpson's sister, on October 6, 1978. She stated that the Simpsons came by her home about 10:30 or 11:00 p.m. and asked her to keep their children while they went dancing. She agreed and the Simpsons left, returned about 4:30 in the morning for the children and immediately departed. After the Simpsons left to go dancing Mrs. Freeman awaited her husband's return from work, and they retired about 1:00 a.m. ¹

On October 2, 1978, there was a telephone conversation, later transcribed, between Ms. Laurie Cantonwine and State Farm Attorney Harry Allen. The substance of the conversation follows: a friend of Simpson's called "Gurley" told Ms. Cantonwine that Simpson said he burned the house by pouring cooking oil on the stove and kitchen floor. She also stated that "Gurley" told her that Simpson had to restart the fire several times before it began burning well and that he had nearly suffocated in the house...