Farm Bureau Insurance v. Ward

Conley Byrd, Justice. In a suit brought by Betty MilliganWard under the vandalism provision of an insurance policy issued by Farm Bureau Insurance Company, Inc., the jury found the issues in favor of Farm Bureau. The trial court granted a new trial on the basis that there was no evidence to justify an instruction on whether Betty Milligan Ward had violated the terms of the policy in neglecting to use reasonable means to save and preserve the property at and after the loss. The Farm Bureau appeals from that ruling. Mrs. Ward for her cross-appeal contends that the trial court erred in not directing a verdict in her favor on the liability of the Farm Bureau. The record shows that in early 1973, Betty Milligan purchased a house for herself and her three children. The Farm Bureau issued its homeowners policy to Betty Milligan effective from 6/5/73 to 6/5/74. Some three months after the purchase of the house, Betty Milligan married Tommy Ward. Approximately two weeks before the loss involved herein. Tommy Ward left a note saying that he was leaving Betty Milligan Ward and directed her to pack his clothes and put them in his car which was parked outside. Tommy Ward, a long distance truck driver, came to her house with his nephew on the evening preceding March 16, 1974, at approximately 7:00 p.m. Betty Milligan Ward, although in the neighborhood, was not at home at that time. When the children saw Tommy Ward pull the telephone out of the wall, they ran and reported the incident to their mother. After Betty Milligan Ward arrived at her house, Tommy Ward left without speaking. It was then decided that her sister and brother-in-law would spend the night with her. Tommy Ward returned about 2:00 a.m. and when Betty Milligan Ward unlocked the door he slapped her three or four times. Tommy Ward then doubled up his fist to hit her brother-in-law but decided against it and left for the second time. At this time, Betty Milligan Ward and her children, together with the sister and brother-in-law, locked the house and went to the sister’s home to spend the remainder of the night. Upon her return the next day Betty Milligan Ward found that Tommy Ward had again returned and broken into her house. There was extensive damage to both the house and 'the furniture therein. Jerry Mote, an adjuster for Farm Bureau, testified that the basis of his denial of the vandalism claim was that Mrs. Ward told him that her husband had caused the damage. The only policy provision involving vandalism or any exclusion or exception thereunder, is under “Perils Insured Against” under Section 1 of the policy. In so far as applicable it provides: “This policy insures under Section 1 against direct loss to the property covered (and additional living expense resulting from such loss) by the following perils as defined and limited herein: 10. VANDALISM AND MALICIOUS MISCHIEF, meaning only the wilful and malicious damage to or destruction of the property covered, but excluding as respects this peril loss if the described dwelling had been vacant beyond a period of 30 consecutive days immediately preceeding the loss. A building in course of construction shall not be deemed vacant.” The Farm Bureau in contending that there was evidence warranting an instruction on whether Betty Milligan Ward had neglected “to use reasonable means to save and preserve the property at and after the loss” argues in its brief as follows: “Therefore, the issue on appeal is whether there was sufficient evidence to sustain the giving of the instruction. What evidence was there of neglect of the insured to use reasonable means to save and protect the property at and after a loss? (1) She did not immediately repair the windows and doors. (2) The repairs described in the estimate have not been made at the time of the trial. (3) Mrs. Ward unlocked the doors at 2:00 A.M. Saturday morning and let Mr. Ward in the house even though at 7:00 P.M. the previous evening he was violent enough to pull out the phones. (4) She left the home after the fight wherein Mr. Ward struck her four (4) times. The home was, therefore, unprotected at the time the damage was done by Mr. Ward.” The record at page 76 shows that, when Mrs. Ward discovered the damages, she first notified the police and then Farm Bureau. The property was inspected by Farm Bureau’s agents on the same day that the damage was discovered. The only evidence as to any delay in repairs is Mrs. Ward’s testimony that she had to wait until she got the money to replace the broken windows and doors. We do not believe that an insurer who refuses payment under its policy is in a position to argue that an insured without the financial means to make the necessary repairs has neglected to use all reasonable means to save and preserve the property. Furthermore, the policy provision upon which Farm Bureau relies provides: “This Company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by: ... (i) neglect of the insured to use all reasonable means to save and preserve the property at and after a loss, or when the property is endangered by fire in neighboring premises; ...” There is certainly no showing here that Mrs. Ward, in locking the premises when she left, did anything other than any other prudeni person would have done under the same or similar circumstances. Since no loss occurred when Mrs. Ward unlocked the door at 2:00 a.m., we can find no logical relevance to Farm Bureau’s contention that this showed a neglect on the part of Mrs. Ward to save and protect the property. Consequently, we agree with the trial court that there was no evidence to instruct the jury on the issue of failure to save and protect the property at and after the loss. In answer to Mrs. Ward’s contention that she was entitled to a directed verdict on Farm Bureau’s liability for the damages sustained, the Farm Bureau only contends that there was a factual issue to go to the jury as to what was meant by the words “vandalism and malicious mischief. ” We find no merit in this suggestion. As can be seen from the language of the policy, supra, the terms “vandalism and malicious mischief” are defined as “meaning only the wilful and malicious damage to or destruction of the property covered. ” The only logical conclusion that can be drawn from this record is that Tommy Ward, after a quarrel with his estranged wife, returned to the house after she left and wilfully and maliciously broke down the locked door to her house, broke windows and otherwise damaged the personal property therein (including but not limited to breaking the legs from three dining room chairs and completely destroying a color television). Therefore, it follows that the trial court erred in failing to direct a verdict in Mrs. Ward’s favor on the issue of liability under the policy. Reversed and remanded for new trial. George Rose Smith and Fogleman, JJ., concur.