Viviano v. Travelers Ins. Co.

• Decision Date: 10 June 1981
• Docket Number: Civ. A. No. 80-2072.
• Citation: 533 F. Supp. 1
• Parties: Susan Adams VIVIANO, et al. v. TRAVELERS INSURANCE COMPANY, et al.
• Court: U.S. District Court — Eastern District of Louisiana

533 F. Supp. 1

Susan Adams VIVIANO, et al. v. TRAVELERS INSURANCE COMPANY, et al.

Civ. A. No. 80-2072.

United States District Court, E. D. Louisiana.

June 10, 1981.

John J. Messina, Metairie, La., for plaintiffs.

P. Albert Bienvenu, Jr., New Orleans, La., for defendants.

CHARLES SCHWARTZ, Jr., District Judge.

Plaintiffs Susan Adams Viviano and Billy G. Viviano, operators of Viviano's Grocery in Blond, Louisiana,¹ bring this suit against the Travelers Insurance Company and the Charter Oak Fire Insurance Company for payment of a claim pursuant to a fire insurance policy they held with the defendants. The Court, sitting without a jury, heard the evidence on April 2 and 3, 1981, and took the matter under submission pending the submission of post trial memoranda. Having considered the facts as revealed in the record, the arguments of counsel, and the applicable law, the Court now finds as follows. To the extent that any findings of fact may constitute conclusions of law, they are adopted as such; to the extent that any conclusions of law may state findings of fact, they are so adopted.

FINDINGS OF FACT

On March 16, 1979, the plaintiffs purchased a house, a grocery store with its stock, a "mechanic shop," a "washateria" building, and a swimming pool, all situated upon about four acres of land, for $72,200. They paid the previous owners, Earl B. Hunt and Vernie Jenkins Hunt, a down payment of $7000 and for the balance due executed a mortgage note pursuant to which they agreed to make monthly payments of $672.99. By agreement with the Hunts, the Vivianos had taken effective possession of the property and had begun operating the grocery as "Viviano's Trading Post" on February 1, 1979.

The Vivianos lived in the house² and operated the store until January 23, 1980, the date of the fire.³ In addition to their retail trade, they operated from their home a second business known as B&S Tax and Accounting Service.

The Vivianos had for several months prior to the fire employed Renee Hines, a neighbor, to help them operate the store. Mrs. Hines worked varying lengths of time, from only a couple of hours to eight hours a day, usually around five days a week. Although Mr. Viviano usually opened the store and Mrs. Viviano usually closed it, Mrs. Hines occasionally operated the store by herself and had done so once while the Vivianos had been out of town.

Another local, Clarence ("Monkey") Jenkins, sometimes did odd jobs for the Vivianos. They paid him no fixed salary, but gave him groceries and beer and occasionally a small amount of cash.

The policy upon which the Vivianos now sue became effective on January 15, 1980— nine days before the fire. The policy covered only the store and its contents; it did not insure the house or the other buildings.

The policy which the Vivianos took out was for $80,000, of which $50,000 was attributable to the grocery building and $30,000 was for its contents. Mrs. Viviano testified that she was persuaded to take the "deluxe package." The structure had an appraised value of $14,400 when the Hunts sold the property to the Vivianos less than a year before the fire; real estate appraisal expert Mary Fallon, who also did the earlier appraisal, testified that the building's value, were it intact today, would have increased by no more than six percent (i.e. to $15,264). The unsalvageable contents of the store for which reimbursement is sought are valued in plaintiff's own post-trial memorandum at only slightly over $24,000, which figure is disputed by the defendants.

Billy Viviano testified that his wife had handled all insurance arrangements. He further testified, however, that he knew that they had had a previous fire insurance policy which expired on January 15, 1980, and that Mrs. Viviano consequently was shopping for a new but similar policy. Susan Viviano, in turn, testified that she had purchased a previous insurance policy in July 1979, for which she had paid about $1200 in cash.

The Vivianos were unable to produce a copy of this insurance policy, which Mrs. Viviano stated was kept in a drawer of a desk in the store. Photographs introduced as exhibits, however, show that the desk, although burned on the exterior, remained structurally intact such that papers contained in its drawers would have survived the fire.⁴ Mrs. Viviano further pointed to an entry in her "Dome Book" of the store's accounts which reflected a cash expenditure for insurance in accordance with her testimony.⁵ That entry, however, was unique by virtue of its being in pencil. The Court also noted on the record at trial that the account book appeared to be little worn, indeed almost new, and that there seemed to be few changes of pens used (and those always coming at the end of, rather than within, a given month's records). Mrs. Viviano did testify that she sometimes made an entire month's entries simultaneously, but the Court nonetheless finds the uniformity of ink, handwriting, slant, and so forth, to be extraordinary.

Mrs. Viviano also testified that although she could not remember their previous insurance carrier's exact name, she did distinctly recall that the name "St. Paul" figured in it. The parties stipulated, however, that a representative for each insurance company licensed in Louisiana in 1978, 1979, or 1980 whose name includes "St. Paul" would testify that no such company received or wrote any fire insurance policy in the name of either or both of the Vivianos, Viviano's Trading Post, Viviano's Grocery Store, B&S Accounting and Tax Service, or the Hunts, the previous owners of the property. The Vivianos produced no evidence of the earlier policy save their own testimony.

In light of these very peculiar circumstances, the Court must find that the Vivianos had no insurance on their property prior to taking out the policy which is the subject of this litigation nine days before the fire.

The testimony concerning the circumstances surrounding the fire was confused and indeed confusing. All parties agree that a fire broke out at Viviano's Trading Post on the evening of January 23, 1980, but the accord there substantially ceases.

The Vivianos testified that they left Blond that evening prior to the outbreak of the fire for a long-planned trip to Cherokee, North Carolina. Because they stayed with relatives there, the cost of the trip was not great. They took their two children, one of whom, Billy, Jr., was in school at the time; the reason given for taking the child out of school was that his teacher had approved of the trip as being educational and as being of some possible help to Billy, who was having trouble with his school work.

The Vivianos gave the set of keys to the store — which they testified were the only ones in existence — to Renee Hines at about 5:00 on the afternoon of January 23. Because the store's front door locked from the inside and its back door (the only other one) was secured by a padlock from the outside, they did not require the keys for closing the store.

According to the testimony of the Vivianos and Monkey Jenkins, Mrs. Viviano was in charge of the store for most of the afternoon of January 23. Mr. Viviano was packing and loading the car in preparation for their trip. Jenkins was also there; he had worked on and washed the Vivianos' car.

Mr. Viviano testified that he closed the store at 6:55 P.M. This testimony was corroborated by Mrs. Viviano and Jenkins. He testified that he realized that he needed gas as he was locking the store but was unable to get any from the pumps located in front of the store, which were a part of the business operation, because those pumps had been turned off. (Mrs. Viviano testified that the reserves were dry and the pumps had consequently been turned off earlier, but that she had thought she had retained a sufficient amount of gasoline for their personal use prior to embarking on their trip.) In order to turn the pumps back on, it was necessary to open a padlocked box located on the exterior of the store building, but it was not possible to do so without the padlock key which was at that time in the possession of Renee Hines.

The Vivianos thought, correctly as it turned out, that Renee Hines would be at her church, at which a revival meeting was in progress. Accordingly, they sent Monkey Jenkins in his truck to the church, located no more than a half mile from the store, to get the keys. He came back with the keys, but the Vivianos found that they were able to pump less than two dollars' worth of gasoline before the tank ran completely dry. They sent Jenkins back with the keys to Mrs. Hines, but moments later discovered, they testified, that they had failed to turn the pumps off. Mrs. Viviano therefore pursued Jenkins and was able to catch him before he had been able to return the keys to Mrs. Hines at the church. They testified that they then shut off the pumps, sent Jenkins back again with the keys for Mrs. Hines, and began their trip. Mrs. Hines testified that Jenkins picked up the keys from her at around 7:00 or 7:15 and returned them approximately fifteen minutes later.

Unlike the Vivianos' testimony, Jenkins' story failed to mention any pursuit of him by Mrs. Viviano as he attempted the first time to take the keys back to Mrs. Hines at the church. Further, Jenkins testified at trial that the Vivianos had been able to get only a very small amount of gasoline when they did get the pumps on; in deposition, however, he had said that he had filled the car up with fifteen or twenty gallons.

The story's web grows more tangled still upon consideration, and attempts at reconciling, the various stories told concerning the fire and its aftermath. Harold Kerry, chief of the volunteer fire brigade which was summoned to the fire (and fulltime Kenner fireman), testified that when he arrived at the scene he found the store's windows and doors intact. It appeared to him at the time, he said, that there was more than a single point of origination of...