DocketNumber: No. CA 11-559
Citation Numbers: 416 S.W.3d 759, 2012 Ark. App. 320
Judges: Abramson, Agree, Brown, Pittman
Filed Date: 5/2/2012
Status: Precedential
Modified Date: 10/2/2021
| Appellant, J. Robert Fulton, sued ap-pellees Beacon National Insurance Company (“Beacon”) and State Auto Financing Corporation (“State Auto”) after being denied coverage under an insurance policy for water damage to a rental home he owned. He appeals from the Crittenden County Circuit Court orders granting summary judgment in favor of Beacon and granting the motion to dismiss, without prejudice, of State Auto. We affirm.
Background
Appellant purchased an insurance policy from Beacon for coverage of a rental home he owned in West Memphis, Arkansas. The policy contained a provision under “Perils Insured Against” that read, in pertinent part:
[W]e do not insure loss ... caused by: li>a. freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This exclusion applies only while the dwelling is vacant, unoccupied or being constructed unless you have used reasonable care to:
(1) maintain heat in the building; or
(2) shut off the water supply and drain the system and appliances of water.
On December 8, 2008, the tenant of the rental house notified appellant that she was moving and vacated the premises. On the same day, the tenant transferred her utility service to a new address, and the West Memphis Utility Commission turned off the power and shut off the water supply to the rental house.
While the rental house was vacant and unoccupied, temperatures went below freezing and a water pipe in the attic froze and burst, causing extensive damage to the rental house. Appellant was informed of the water leak on December 25, 2008, and filed a claim with Beacon for coverage under the insurance policy. State Auto handled the adjustment of appellant’s claim and retained an independent adjuster named Benny Hicks to conduct an investigation. Following the investigation, Beacon denied appellant’s claim on the grounds that he had failed to use reasonable care to drain the rental house’s plumbing system and appliances of water while the house was vacant.
Records from the West Memphis Utility Commission showed that electricity and water at the rental house were shut off on December 8, 2008, and were not turned back on until January 6, 2009. The records showed, however, that during that gap in time, some 22,400 gallons of water were used. There was deposition testimony from several witnesses, | ¡including appellant, that someone must have turned the water back on during the period between shutoff on December 8, 2008, and December 25, 2008, but no proof as to the person’s identity was offered.
Appellant filed suit for breach of contract and bad faith against Beacon and State Auto. State Auto filed a motion to dismiss for failure to state a claim and for lack of personal jurisdiction. Beacon answered and filed for summary judgment. In its motion for summary judgment, Beacon asked the circuit court to rule, as a matter of law, that appellant was not entitled to coverage because the policy required him to use reasonable care to drain the rental house’s plumbing system and appliances of water, and he had failed to do so. In separate orders filed on February 28, 2011, the circuit court granted Beacon’s motion for summary judgment and granted, without prejudice, State Auto’s motion to dismiss for failure to state a claim, but did not rule on the motion to dismiss for lack of personal jurisdiction. Appellant has appealed from both orders.
Discussion
I. Summary Judgment in Favor of Beacon
Appellant argues that the circuit court erred in granting summary judgment because the insurance policy should have been construed liberally so as only to require him to exercise reasonable care to avoid a loss.
14Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and the case can be decided as a matter of law.
Under Arkansas law, the intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer.
Where terms of the policy are clear and unambiguous, however, the policy language controls, and absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms.
We do not find the language of the insurance policy ambiguous. Rather, it clearly and plainly states that damage to appellant’s rental house would be covered only if he used reasonable care to (1) maintain heat in the building or (2) shut off the water supply and drain the system and appliances of water. It is undisputed that appellant did not attempt to maintain heat in the building. Although the parties have conceded that there is a fact question as to whether appellant used reasonable care to shut off the water supply,
Appellant’s argument is that his failure to drain the plumbing system should be regarded as immaterial because it did not cause the damage at the rental house, or as he stated in his deposition, “If I had drained the pipes and somebody came back in and turned it on, it would have still been damaged.” However, the plain language of the policy provides that had he used reasonable care to drain the plumbing system, the damage would have been covered.
|7We note that in support of his argument, appellant has cited a number of cases from other jurisdictions, none of which would be applicable to this ease even if they did have binding authority. In five of the cases, the insured took affirmative steps to maintain heat in the building and the court addressed the question of whether their efforts constituted using reasonable care to maintain heat.
II. Motion to Dismiss State Auto
Our standard of review on a motion to dismiss is well established. We treat the facts alleged in the complaint as true and view them in the light most favorable to the party who |8filed the complaint.
Arkansas Rule of Civil Procedure 12(b)(6) (2010) provides that “[ejvery defense, in law or in fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may ... be made by motion: ... (6) failure to state facts upon which relief can be granted[.]” According to Ark. R. Civ. P. 8(a)(1) (2010), a pleading that sets forth a claim for relief shall contain a statement in ordinary and concise language of facts showing that the pleader is entitled to relief.
A pleading is deficient if it fails to set forth facts pertaining to an essential element of its claim.
It is well settled that mere conclusions unsupported by convincing argument or legal authority will not be accepted or reviewed on appeal.
Affirmed.
. Carver v. Allstate Ins. Co., 77 Ark.App. 296, 76 S.W.3d 901 (2002).
. Id. (citing Wright v. Compton, Prewett, Thomas & Hickey, P.A., 315 Ark. 213, 866 S.W.2d 387 (1993)).
. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993); Baskette v. Union Life Ins. Co., 9 Ark.App. 34, 652 S.W.2d 635 (1983).
. Id.; Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979).
. Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001) (quoting Vincent v. Prudential Ins. Brokerage, 333 Ark. 414, 970 S.W.2d 215 (1998)).
. Id.
. Carver, supra; General Agents Ins. Co. of Am. v. People’s Bank & Trust Co., 42 Ark.App. 95, 854 S.W.2d 368 (1993).
. Carver, supra; Moore v. Columbia Mut. Cas. Ins. Co., 36 Ark.App. 226, 821 S.W.2d 59 (1991).
. Appellant testified that in his experience as a landlord, the West Memphis Utility Commission always turned off electricity and water service at the same time when a tenant moved out. A letter from West Memphis Utility Commission confirmed that this was the Commission’s practice.
. Fulton testified at his deposition that he never attempted to drain the water pipes at the rental house and he knew there was still water in the system. He said that even though he knew the temperature was going to get down to freezing, he did not think it would cause any problems because he thought the water was off and he believed it would not get cold enough to freeze the water still in the plumbing system.
. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).
. We make this statement without regard to any possible arguments concerning agency, since no such arguments are before us.
. See Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004); W. Memphis Flying Serv., Inc. v. Am. Aviation & Gen. Ins. Co., 215 Ark. 6, 219 S.W.2d 215 (1949); Planters Mut. Ins. Ass’n of Ark. v. Dewberry, 69 Ark. 295, 62 S.W. 1047 (1901).
. Billitier v. Merrimack Mut. Fire Ins. Co., 777 F.Supp.2d 488 (W.D.N.Y.2011); Hidalgo v. Mason Ins. Agency, Inc., 2005 WL 1313828 (Mich.Ct.App.2005); Thomas Inv. Co. v. United States Fid. & Guar., 716 S.W.2d 395 (Mo.Ct.App. E.D.1986); McCabe v. Allstate Ins. Co., 260 A.D.2d 850, 688 N.Y.S.2d 764 (N.Y.App.Div.1999); Palmer v. Pawtucket Mut. Ins. Co., 352 Mass. 304, 225 N.E.2d 331 (1967).
. JMB Enters. v. Atlantic Employers Ins. Co., 228 NJ.Super. 610, 550 A.2d 764 (N.J.Super.Ct.App.Div.1988); Int'l Ins. Co. v. Reid, 400 S.W.2d 939 (Tex.Civ.App.1966).
. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377.
. Id.
. See Ark. R. Civ. P. 8(a)(1) (2010); Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324.
. Dockery, supra.
. Id.
. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985).
. Id.
. Thomas v. Pierce, 87 Ark.App. 26, 184 S.W.3d 489 (2004).
. Country Comer Food and Drug, Inc. v. First State Bank and Trust Co. of Conway, Ark., 332 Ark. 645, 966 S.W.2d 894 (1998).
. See, e.g., Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008).
. Id.