Texas General Indem. Co. v. Speakman, 05-86-00334-CV

• Decision Date: 13 August 1987
• Docket Number: No. 05-86-00334-CV,05-86-00334-CV
• Citation: 736 S.W.2d 874
• Parties: TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Jerry L. SPEAKMAN and Donald E. Coffman, Appellees.
• Court: Texas Court of Appeals

Page 874

736 S.W.2d 874

TEXAS GENERAL INDEMNITY COMPANY, Appellant, v.Jerry L. SPEAKMAN and Donald E. Coffman, Appellees.

No. 05-86-00334-CV.

Court of Appeals of Texas Dallas.

Aug. 13, 1987.

Donald D. Wren, Dallas, for appellant.

William F. Billings, Dallas, for appellees.

Before STEPHENS, HECHT and BAKER, JJ.

STEPHENS, Justice.

Texas General Indemnity Company(TGI) appeals from the trial court's judgment awarding $134,950 to Jerry L. Speakman(Speakman) and Donald E. Coffman(Coffman) in payment of an insurance claim resulting from the total destruction by fire of a house and its contents owned by Speakman and Coffman.The trial court also awarded Speakman and Coffman $44,983.33 as reasonable attorney's fees, and $18,892.99 as prejudgment interest.The case was tried before the court.The sole issue at trial was whether the fire occurred either as a result of arson or as a result of a hazard "increased by any means within the knowledge and control of the insured, provided such increase in hazard is not usual and incidental to the occupancy ...," thereby excusing TGI from paying under the insurance policy.At the conclusion of the trial, the court rendered judgment for the defendant, TGI, and ordered that plaintiffs, Speakman and Coffman, take nothing.Speakman and Coffman timely filed a "motion to correct judgment or for new trial" and a "first amended motion to correct judgment or for new trial."The trial court granted the motion filed by Speakman and Coffman, vacated and set aside its earlier judgment in favor of TGI, and rendered judgment in favor of plaintiffs Speakman and Coffman for their insurance claim, attorney's fees, and prejudgment interest, for a sum totaling $198,826.32.TGI filed a "motion to correct judgment or for new trial" and this motion was overruled by the trial court.TGI then perfected this appeal.

TGI asserts fifteen points of error on appeal.TGI's first seven points of error are argued together in TGI's brief, and challenge the legal and factual sufficiency of the evidence in support of the trial court's judgment.TGI groups its eighth through eleventh points of error together because each of these points of error contest the trial court's award of attorney's fees.TGI's twelfth through fifteenth points of error attack the trial court's award of prejudgment interest.

We disagree with TGI's first eleven points of error.We hold that the evidence is both legally and factually sufficient to support the trial court's implied finding of no arson.We also hold that the evidence is both legally and factually sufficient to support the trial court's award of $44,983.33 in attorney's fees.The appellees concede that the prejudgment interest was erroneously calculated.Consequently, appellant's twelfth through fifteenth points of error are sustained.The judgment of the trial court is reformed to the extent that a remittitur of prejudgment interest in the amount of $5,294.47 is ordered.If appellees timely file the above remittitur, the judgment of affirmance will be reformed to that extent.If appellees fail to file the remittitur, the judgment of affirmance will be set aside and the judgment of the trial court reversed and the cause remanded.

I.SUFFICIENCY OF THE EVIDENCE REGARDING ARSON

TGI argues in its first seven points of error that the evidence is legally and factually insufficient to support the judgment of the trial court.

The record reflects that Speakman and Coffman jointly owned a house in Tool, Texas, which was destroyed by fire on December 31, 1983.Three months before the fire Speakman and Coffman ceased living in the house on a full-time basis and instead spent a majority of their time at a townhome in Dallas which they had purchased together.Speakman and Coffman, after spending three or four consecutive weeks in Dallas, drove from Dallas to Tool on the morning of December 31, 1983.They visited Coffman's mother, who lived across the street from their home in Tool, and they visited some neighbors, Nan and David Merchant, before returning to their home in Tool at approximately 4:30 or 5:00 p.m.While visiting the Merchants, Speakman and Coffman decided to spend the night in Tool.The Merchants then gave Coffman and Speakman two five-gallon jugs of water because the water pipes were frozen and none of the homes in the area had water.Speakman borrowed the Merchants' van and left at approximately 5:30 or 5:45 p.m. to drive to Dallas and pick up the dog he and Coffman owned who was locked in their Dallas townhouse.At approximately 6:30 p.m. Coffman went across the street to his mother's house.Coffman took his mother out to eat dinner at K-Bob's Steakhouse and took her to buy groceries.Coffman and his mother arrived back at his mother's house at approximately 9:15 or 9:30 p.m. Coffman helped his mother unload the groceries and then walked across the street to his house at approximately 9:30 p.m. Coffman testified that he intended to go home and get one of the five-gallon jugs of water the Merchants had given to him and Speakman and take it to his mother since he and Speakman would not use two five-gallon jugs of water in one night.Coffman testified that he opened his front door and "smoke just boiled out of the entry hall of the house."Coffman did not recall whether the front door was locked, but testified that his normal procedure was to keep the door locked while he was out.Coffman then returned to his mother's house across the street, and the fire department was called.Coffman testified that the smoke in the entry hall was thick and black and that, therefore, he was unable to enter the house to discover what was on fire or attempt to extinguish the fire.The fire department arrived approximately ten to twelve minutes later, and Coffman met them in the street.The firemen put on their masks and equipment and entered the house.The firemen worked for approximately thirty or forty minutes to put out the fire.The firemen then showed Coffman where the fire originated, in the back bedroom on a bed.The actual fire damage was confined to the back bedroom although there was smoke damage throughout the house.The firemen had opened all of the house's 32 windows and had chopped up a portion of the bedroom floor to ascertain whether the fire had spread below the floor.Coffman testified that one of the firemen told him to check the house every hour for the remainder of the night.

Coffman testified that he left his house at the same time the firemen departed, and walked across the street to his mother's house to await Speakman's return.Approximately twenty minutes later Coffman saw Speakman drive up.Coffman "intercepted" Speakman before he entered their house and Coffman, Speakman, and the dog returned to Coffman's mother's house.As Coffman and his mother explained the events of the evening to Speakman, Coffman's mother noticed that the house was on fire again.Coffman testified that he looked out his mother's front door and "flames were shooting out of the top of the house."Coffman told his mother to call the fire department while he and Speakman ran across the street to attempt to remove articles from the house.However, Coffman and Speakman were unable to save any of their home's furnishings from the second fire.The fire department arrived at approximately 11:15 p.m. and finally extinguished the second fire.The house and its contents, with the exception of one painting, were destroyed.Coffman testified that the painting hung in the entry hall, and that after the firemen arrived for the first time, he reached inside the front door and retrieved the painting.

Coffman testified that he and Speakman did not keep anything unusually dangerous or inflammatory in their home.Coffman said that he and Speakman had lit four or five scented candles when they first arrived at their home in Tool, to remove the dank smell a "tied up" house acquires.According to Coffman, the house contained a wet bar which was well stocked with approximately seven or eight gallons of liquor.There were two shotguns and some shotgun shells in the house.There was an empty gas can used to store gas for the lawnmower and a can of "deck sealant" used to treat their wood deck in the garage.The garage was used as a storage room and the garage was so full that a car would be unable to fit into the garage unless the garage was first cleaned out.

On the date of the fire, Coffman and Speakman's house was insured for $84,500, and Coffman and Speakman had $50,700 of unscheduled personal property insurance coverage.Coffman testified that, in his opinion, the house was worth $90,000 in excess of the insurance policy coverage.Coffman testified that the value of their personal property contained in the house exceeded $57,700, the amount of personal property insurance coverage.

At the time of the fire, the house in Tool was not carrying a mortgage and the town house in Dallas had a $30,000 mortgage.Coffman and Speakman put the house in Tool up for sale on two occasions prior to the fire; once several years before the fire and once seven or eight months before the fire.The house in Tool was not for sale at the time of the fire, and Coffman testified that he and Speakman were planning to keep the house and possibly add a hot tub and greenhouse.

Bill Forester testified that he has been employed with the Dallas Fire Department for twenty-seven years.Forester was chief of the Tool Volunteer Fire Department at the time of the fire in question.Forester related that he helped fight both the first and second fires.Forester testified that after the first fire was extinguished, he sent someone into the attic to be certain the fire had not spread upward into the attic.Forester was unable to remember who checked the attic.Forester was unable to determine how the first fire originated.Forester testified that he was surprised when he was called a second time and asked to return to the scene...