Richard E. Finch v. Tennessee Farmers Mutual Insurance Co. - Concurring

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT NASHVILLE
_______________________________________________________
)
RICHARD E. FINCH, ) Bedford County Circuit Court
) No. 6616
Plaintiff/Appellant. )
)
VS. ) C. A. NO. 01A01-9607-CV-00342
)
TENNESSEE FARMERS MUTUAL )
INSURANCE COMPANY,
Defendant/Appellee.
)
)
)
FILED
) March 5, 1997
______________________________________________________________________________
Cecil W. Crowson
From the Circuit Court of Bedford County at Shelbyville. Appellate Court Clerk
Honorable Lee Russell, Judge
William J. Abernathy, Jr.,
LEITNER, MOFFITT, WILLIAMS, DOOLEY and NAPOLITAN, PLLC, Nashville, Tennessee
Attorney for Plaintiff/Appellant.
John T. Bobo,
Charles L. Rich,
BOBO, HUNT & BOBO, Shelbyville, Tennessee
Attorneys for Defendant/Appellee.
OPINION FILED:
REVERSED AND REMANDED
FARMER, J.
CRAWFORD, P.J., W.S. (Concurs)
HIGHERS, J. : (Concurs)
This appeal addresses the issue of whether the “innocent co-insured doctrine,” first
recognized by our supreme court in Spence v. Allstate Insurance Co., 883 S.W.2d 586 (Tenn. 1994),
should be extended so as to permit the appellant, Richard E. Finch (Finch) to recover under an
insurance policy, issued by the appellee, Tennessee Farmers Mutual Insurance Company (TFMIC),
for loss to property held jointly with his co-insured spouse whose intentional acts caused the loss.
The trial court, interpreting Tennessee case law to disallow such recovery primarily “on the basis of
policy considerations,” entered a summary judgment for TFMIC.1 Finch challenges the correctness
of that decision. For reasons to be set forth, we reverse and remand.
The following facts are undisputed: TFMIC renewed a property owners’ insurance
policy to named insureds “Richard E. Finch and wife, Willa I. Finch” for policy period August 1,
1991 to August 1, 1992.2 The policy insured a 70 acre tract of land with a dwelling house and other
farm structures, owned by the named insureds as tenants by the entirety, 3 and personal property
against loss by fire. The limits of liability were $30,000 for the house, $18,000 for personal property
and $15,000 for each chicken barn.
In May 1991, Willa Finch filed for divorce and the couple separated in July. On
December 27/28, 1991, with the policy in effect, Willa Finch intentionally burned the house and its
contents. Finch and his wife were divorced on March 20, 1992. Pursuant to a property settlement
agreement, approved by the divorce court, Ms. Finch quitclaimed her interest in the subject realty
to Finch and waived any interest in insurance proceeds possibly recovered by Finch as a result of the
fire.
Finch filed the present action after TFMIC declined payment of his claim because of
Ms. Finch’s arson and the insurance carrier’s interpretation of “Tennessee Law regarding innocent
spouse claims.” In his complaint, Finch denies any participation in setting the fire, any prior or
concurrent knowledge of Ms. Finch’s actions or “any other act or neglect that led to the house fire.”
For answer, TFMIC denied all material allegations and asserted the affirmative defense that the
1
The summary judgment was entered September 27, 1993.
2
The policy was originally issued by TFMIC in 1984.
3
The record indicates that the named insureds purchased the property in August 1977.
The sellers were mortgagees of the property.
complaint failed to state a claim upon which relief can be granted. The parties stipulated that Ms.
Finch intentionally burned the premises; that Mr. Finch timely filed a proof of loss claim; that Ms.
Finch refused to file a claim for the house fire; and that only two items of personalty lost in the fire
were owned by Finch individually,4 with all other personalty and realty being owned jointly by Willa
and Richard Finch.
The matter was argued before the trial court as a motion for summary judgment. For
purposes of said motion, the court expressly assumed that Finch was not personally involved in
causing the fire. The trial court concluded that TFMIC was entitled to a summary judgment “in
regard to the claims . . . related to jointly owned property”5 and held: “[f]ollowing the lead of our
own intermediate appellate court, this trial court concerns itself with the policy considerations rather
than the policy language and declines to extend the holding in [Ryan v. MFA Mutual Insurance
Co., 610 S.W.2d 428 (Tenn. App. 1980)] to jointly owned property.”6
As noted, the issue before us is whether the trial court was correct in entering a
summary judgment for TFMIC upon finding, as a matter of law, that Finch is not entitled to recover
under the insurance policy for loss to jointly owned property. We begin our analysis with a
discussion of the “innocent co-insured doctrine” as it presently exists in Tennessee. The doctrine
is defined by our supreme court in Spence v. Allstate upon noting its original adoption by the court
of appeals in Ryan. In reference thereto, Spence states:
After conducting an extensive jurisdictional survey of the law on this
issue, [Ryan] determined that the traditional rule--in which
wrongdoing by an insured served as a complete bar to recovery by an
innocent co-insured--had been supplanted by a rule allowing the
innocent coinsured to recover if: (1) the policy language governing
the rights of an innocent co-insured was ambiguous from the
standpoint of the reasonable person purchasing insurance; and (2) if
the innocent co-insured could show that he had a sole or separate
interest in the property claimed in the proof of the loss.
4
TFMIC does not dispute coverage for these individually owned items.
5
The matter proceeded to further hearing regarding Appellant’s claim that he is entitled to
be subrogated to the interests of the mortgagees. This issue and the trial court’s ruling thereon is
not before us on appeal.
6
Ryan, along with the unreported appellate court decisions which the trial court
considered, will be discussed in more detail hereinafter.
Spence, 883 S.W.2d at 590-91. Spence upheld the doctrine as set forth in Ryan. Notably, the court
was not directly confronted with the issue now before us. There, the only property for which the
innocent co-insured sought to collect under the policy was determined to be his sole and separate
property. 7 Id. at 593-94.
The following provisions are included in the policy of insurance issued Finch and
wife, Willa by TFMIC:
DEFINITIONS USED THROUGHOUT THIS POLICY
....
“You” and “your” means the Policyholder named in the Declarations
and spouse if living in the same household.
....
“Insured Person” means:
(a) you;
(b) your spouse or the relatives of either residing in your household;
and
....
“Insured premises” means:
(a) the farm premises or residence premises described in
declarations.
....
SECTION I
....
EXCLUSIONS:
We do not cover loss resulting directly or indirectly from:
....
8. An action by or at the direction of an insured person committed
with the intent to cause a loss. This exclusion does not apply to loss
sustained by an insured person who does not participate in such
7
Nor did the court in Ryan have need to consider the issue. There, the court specifically
found that the innocent spouse sought recovery “only for items he claims belong to him.” Ryan,
610 S.W.2d at 437.
action nor have knowledge of such action.
....
GENERAL POLICY CONDITIONS APPLYING TO SECTION I
AND SECTION II
....
4. Concealment Or Fraud
This entire policy is void as to the insured, if an insured person has
intentionally concealed or misrepresented any material fact or
circumstances relating to this insurance, or acted fraudulently or made
false statements relating to this insurance.
It is not disputed that the actions of Willa Finch in burning the insured property were
intentional. Loss of this nature is specifically addressed in Exclusion 8. Under this provision,
coverage is not provided for loss resulting directly or indirectly from such intentional acts as those
of Ms. Finch, except for that “loss sustained by an insured person who does not participate in such
action nor have knowledge of such action.” We find the unequivocal language of this “exception,”
or severability clause as it is sometimes referred, to afford coverage to Mr. Finch if in fact he did not
participate in or have knowledge of his former wife’s actions in burning the property. However,
when reading the “Concealment Or Fraud” provision, we find a contractual intent to deny coverage
to both insureds for the fraudulent acts of “an insured person.” This language, however, merely
serves to create an ambiguity in the policy regarding an innocent co-insured’s rights when read with
the provisions under Exclusion 8. As it is well settled that ambiguous provisions of an insurance
policy are to be construed against its drafter and in favor of the insured, see, e.g., Tata v. Nichols,
848 S.W.2d 649, 650 (Tenn. 1993); Ryan, 610 S.W.2d at 437; we interpret the foregoing policy to
afford coverage to Mr. Finch if in fact he did not participate in or have knowledge of his former
wife’s arson.
This does not end our inquiry, however, as we must now determine to what extent
coverage exists for Mr. Finch. TFMIC does not dispute the unambiguity of the language in
Exclusion 8, instead maintaining that the “unambiguous” language is “wholly consistent with the
‘innocent co-insured doctrine’ if applied.” TFMIC reasons that from the standpoint of the reasonable
person purchasing insurance, the provision could only apply to property owned solely and separately
by an innocent co-insured because the co-insured intentionally causing the loss cannot recover
his/her interest in the property. To this extent, we cannot agree. We find nothing in the language
under Exclusion 8 to even remotely suggest a limitation on the loss sustained by an innocent co-
insured to only that property in which he/she maintains a sole or separate interest. We do not find
that a “reasonable person purchasing insurance” would construe the provision in such manner. If
it was the intent of TFMIC to limit its coverage in the way suggested, it could have easily done so
by using clear and precise language to that effect. Thus, insofar as the contract of insurance itself
is concerned, we conclude that coverage has not been excluded for loss to jointly held property.
We must yet determine whether there exist overriding concerns of public policy
which warrant denying recovery for such loss. Quite obviously, the major concerns in this regard
are collusion by the co-insureds to perpetrate a fraud upon the insurance company and preventing
one from profiting indirectly from that which he is not entitled to profit directly. The trial court
reviewed three unreported opinions rendered by the court of appeals since Ryan to conclude that the
innocent co-insured doctrine does not extend to jointly held property on grounds of public policy.
The first of such cases, Tennessee Farmers Mutual Insurance Co. v. Billings, 6 TAM 36-8 (Tenn.
App. filed July 22, 1981), aff’d 7 TAM 40-4, C.R.O., refused to extend the doctrine for the policy
reasons expressed above, noting also the common law rule of unity of husband and wife which,
according to the court, would render an insurance carrier’s subrogated cause of action
“meaningless.”8
The second case, Snowden v. State Farm Fire & Casualty Co., 8 TAM 29-17 (Tenn.
App. filed June 8, 1983), involves a similar factual pattern to the case at bar. There, husband and
wife owned the insured home as tenants by the entirety; all personal property was owned jointly.
The couple separated prior to a fire to their home, which a jury determined was the result of the
husband’s arson, and were divorced subsequent thereto. Unlike the present case, however, the
divorce decree awarded the innocent wife only one-half of the fire insurance proceeds. Both husband
and wife filed suit to recover under the policy. In denying recovery, the court cited Billings for its
public policy concerns, but also relied upon the express provisions of the insurance contract to
8
As correctly pointed out by Appellant, the doctrine of interspousal tort immunity was
later abolished in Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983).
support its decision. The court referred to the policy’s “concealment or fraud” provision, which
voided the entire policy for “any” insured’s intentional concealment or misrepresentation of any
material fact relating to the insurance. The court found that husband’s arson followed by a claim for
recovery was tantamount to fraud as contemplated by the contract.
Finally, in Adams v. Aetna Casualty & Surety Co., 10 TAM 52-2 (Tenn. App. filed
Nov. 19, 1985) (Franks, J., dissenting), appeal denied, the innocent wife was denied recovery for
loss to the couple’s home owned as tenants by the entirety. The court cited Ryan along with the
unreported decisions above-mentioned, underscoring the position that to allow such recovery would
encourage the practice of fraud upon the insurance carrier.
In a dissenting opinion to Adams, Judge Franks recognized a trend among other
jurisdictions, as did the trial court in the present case, toward allowing innocent co-insureds to
recover for the loss of jointly owned property. In rejecting the majority’s view, Judge Franks states:
The insurance company contends, and the majority agrees,
that abandonment of the traditional rule will encourage collusion
between husband and wife to perpetuate fraud upon insurors.
Allowing a truly innocent insured spouse to recover would not
encourage fraud. As one court has noted, recovery should only be
allowed “where . . . there has been no finding that the insured directly
set the fire, had knowledge and authorized its setting or later ratified
the wrongful act.” St. Paul Fire and Marine Ins. Co. v. Molloy, 433
A.2d 1135 (Md. App. 1981). Proof of fraud on the part of the co-
insured would deny the co-insured recovery; absent such proof, the
public policy rationale implicit in the “old dominant rule” disappears.
Judge Franks noted also that the majority’s ruling, in effect, holds the innocent spouse responsible
for the other spouse’s crime and, thus, “contravenes the general rule that a spouse is not vicariously
responsible for the criminal acts of his or her spouse.”
The dissent makes specific reference to a decision of the Appellate Division of the
New Jersey Superior Court, Howell v. Ohio Casualty Insurance Co., 327 A.2d 240 (N.J. Super. Ct.
App. Div. 1974). Howell allows an innocent wife to recover under a homeowner’s insurance policy
for loss to jointly held personal property destroyed by the husband’s arson. The insured premises
was owned by the husband and wife as tenants by the entirety.9 The policy designated the named
insured as the husband “and/or” the wife. After setting the fire, the husband committed suicide.
Howell, 327 A.2d at 241.
Howell reasons as follows:
We hold that the trial court correctly determined that the fraud
of the husband was no bar to recovery under the policy by the
innocent wife. However, we reach this result irrespective of whether
the interests of the wife and husband in the tenancy by the entirety, in
the personal property, or in the contract rights under the policy are
deemed to be joint or several. The significant factor is that the
responsibility or liability for the fraud -- here, the arson -- is several
and separate rather than joint, and the husband’s fraud cannot be
attributed or imputed to the wife who is not implicated therein.
Accordingly, the fraud of the co-insured husband does not void the
policy as to plaintiff wife.
Id. at 242. Interestingly, Howell found its conclusion “supported” by the terms of the insurance
policy, including what the court considered the ambiguous phrase “and/or,” but did not deem such
provisions controlling. Id.
An identical question as that now confronting us was posed to the Supreme Court of
Delaware in Steigler v. Insurance Co. of North America, 384 A.2d 398, 399 (Del. 1978). In a case
of first impression, the court considered the traditional arguments advanced for denying recovery:
the “legal oneness” of the husband and wife relationship and the unity and indivisibility of property
held by tenants by the entireties. Steigler, 384 A.2d at 400. The court acknowledged that recovery
is generally denied on the ground that spouses who hold joint interests in insured property have a
joint obligation to refrain from fraud and, thus, the fraud of one necessarily becomes the fraud of the
other. Steigler instead chose to treat the matter as purely “a contract dispute,” focusing on the law
pertaining thereto rather than that which governs “land titles.” Id. at 399-400. Relying then upon
principles of contract law, the court determined the policy’s fraud provision ambiguous and
construed it in favor of the innocent insured to afford coverage. The court held:
9
Howell indicates that the insuror paid for repairs to the burned home because an innocent
mortgagee was involved, but had refused to pay the wife for personal property loss. Howell, 327
A.2d at 241.
In our judgment, the contract in this case can and should be read to
accord with the reasonable expectations of an ordinary purchaser, that
is, [the innocent spouse] had an interest in the property, the policy
named her without qualification as one of the persons insured and she
should not be barred from recovering under the policy by the fraud of
the other co-tenant.
Id. at 401.10 The court described the “oneness” theory urged by the defendant carrier as rather
“quaint” in modern day and felt it overridden by other “principles at stake.” Id. One being the
general rule that a spouse is not vicariously liable for the criminal acts of the other merely because
of the existence of the marital relationship. Id. at 401-02. Thus, Steigler preferred to align itself
with the reasoning of Howell, finding it “to represent both a more modern analysis of the problem
and to produce a fairer result.” Id. at 402. Steigler permitted a recovery for the innocent wife of
one-half of the damages within policy limits, inasmuch as the rights of the husband and wife were
viewed as separate under the contract. Id.
A like decision was rendered by the Supreme Court of Texas in Kulubis v. Texas
Farm Bureau Underwriters Insurance Co., 706 S.W.2d 953 (Tex. 1986). There, the court declined
to follow prior decision to hold that the illegal destruction of jointly owned property by one co-
insured does not bar recovery under the insurance policy by an innocent co-insured. Kulubis, 706
S.W.2d at 955. The court observed that prior rule disallowing such recovery was premised on public
policy that a wrongdoer not benefit from his wrongdoing and on the notion that the innocent co-
insured was mutually obligated under the insurance contract. Id. However, in examining the various
other expressed policy considerations -- prevention of fraud upon the insurance company; prevention
of unjust enrichment by the insurance company; refusal to impute the criminal acts of the wrongdoer
to an innocent victim; and requiring an innocent co-insured to recover based upon his/her reasonable
expectations -- Kulubis concluded that these concerns are best protected by allowing recovery to the
innocent co-insured if the trial court determines that he/she is indeed innocent. Id. Kulubis reasons:
A trial court is uniquely situated to make the determination of the co-
insured’s innocence, and, unless there is a finding of lack of
innocence, the co-insured shall be permitted to recover.
10
The fraud provision in the policy rendered the contract void “in case of any fraud . . . by
the insured relating thereto.” Steigler, 384 A.2d at 399 n. 1. It was not disputed that the husband
committed fraud within the meaning of the policy by deliberately burning the home. Id. at 399.
We hold that this test will best protect the insurance company
from fraud while assuring that the insurance company will not be
unjustly enriched. It will also permit an innocent victim whose
property has been destroyed to collect under an insurance policy for
a loss reasonably expected to be covered. This test also avoids the
imputation of criminal action to an innocent victim.
Id. Kulubis allowed the innocent spouse to recover one-half of the stipulated amount of loss. Id.
Recovery for the innocent spouse was also recognized by the Court of Appeals of
Indiana in American Economy Insurance Co. v. Liggett, 426 N.E.2d 136 (Ind. Ct. App. 1981).
That court likewise dispensed with the “oneness” theory by noting that spouses are not held
vicariously liable for torts merely because of the marital relationship. Liggett, 426 N.E.2d at 138-39.
As to the claimed indivisibility of a spousal interest in entireties’ property, the court stated:
The legal fiction of the entireties’ estate in real estate is designed for
the protection of the spouses and the marriage. It was initially
designed to prevent the individual creditors of either spouse from
taking the marital home. The courts generally, and divorce courts in
particular, find no difficulty in dividing an entireties estate. I find it
a perversion of this legal fiction, designed to protect the spouses’
rights and marital property, to use it to destroy the property rights of
an innocent spouse. . . .
. . . . It is not an undivided interest in real estate which is an
issue in these cases but a claim or chose in action against an insurance
company; a right to be reimbursed for the loss which has been
sustained.
Id. at 140.
Liggett further held that valid public policy which prohibits a guilty party from
profiting from his wrongdoing is “easily vindicated” by barring any recovery to the “living” guilty
spouse and permitting the innocent spouse recovery of one-half of the insured loss within policy
limits, and suggested that “[w]here there is some prospect that the guilty party might benefit, even
indirectly, a careful factual analysis can be made by the trial court to determine whether that prospect
exists and to protect against it.”11 Id. Finally, the court commented that since the decision rendered
11
Liggett noted that such was an impossibility there, as the guilty spouse was dead.
Liggett, 426 N.E.2d at 140. Thus, the court chose to award the innocent spouse a “full recovery
under the policy” as the “sole surviving insured, owning the entire claim for indemnification
by the State of New Jersey in Howell, a majority of the jurisdictions considering the issue as one of
first impression had followed or expanded upon its principles. Id. at 143.
We make final observation here of one such case considering the issue on first
impression, McCracken v. Government Employees Insurance Co., 325 S.E.2d 62 (S.C. 1985), as
the decision we reach herein is in accord. In McCracken, the alternate approaches taken by the
jurisdictions considering the issue were elucidated as follows: some courts deny recovery where the
interests in the property are nonseverable; others emphasize whether the obligations of the co-insured
as set forth in the insurance contract are joint or severable (the court cited Ryan here as supporting
this position); and a third group focuses upon whether the liability for the fraudulent act can be
considered separate or joint (Howell). McCracken, 325 S.E.2d at 63-64. The South Carolina
Supreme Court then concluded that the public policy of its state was not contravened in allowing an
innocent spouse to recover inasmuch as “the unity of spouses and the disability of coverture as
affecting litigation [had] been abolished,” and held:
We decline to make any distinction between property which is held
jointly or severably and hold that in the absence of any statute or
specific policy language denying coverage to a co-insured for the
arson of another co-insured, the innocent co-insured shall be entitled
to recover his or her share of the insurance proceeds.
Id. Accord McGory v. Allstate Ins. Co., 527 So. 2d 632 (Miss. 1988). We agree with the holding
in McCracken and adopt it as our own.
We are persuaded that the better reasoned approach is to permit an innocent co-
insured to recover under an insurance policy for the loss to jointly owned property, provided the
specific language of the insurance contract does not expressly exclude such coverage so that the
reasonable person purchasing insurance would expect to be covered in the event of property loss
caused intentionally by a co-insured. We note that in the case at bar, the possibility of an indirect
benefit to the guilty insured has been greatly minimized by the Finch divorce and Ms. Finch’s
relinquishment of any interest in the insured property or insurance proceeds. We are not unmindful,
against the [carrier].” Id. at 144-45. The court noted, however, that “a different rule may need to
be fashioned where the guilty spouse survives.” Id. at 144.
however, of the possibility under other factual situations. Taking our lead from Liggett and Kulubis,
we are of the opinion that this concern can best be addressed by the trial court in making a factual
determination as to the true “innocence” of the co-insured. Under those circumstances where the
potential for deception is clearly found to exist, recovery should be denied.
The insurance contract in question does not expressly exclude coverage to an innocent
co-insured for loss to jointly held property. Thus, it is within the reasonable expectation of Finch
that he would be covered under the policy for his loss. We hold that he is therefore entitled to
coverage under the policy for his loss to jointly owned property, provided his “innocence” is proven
in the trial court. Consequently, we remand this matter to the trial court for the taking of evidence
to determine whether Finch is an innocent co-insured under the policy. If established, the trial court
should additionally hear evidence on damages.
As to the amount of damages recoverable, we find guidance from the Michigan Court
of Appeals in Lewis v. Homeowners Insurance Co., 432 N.W.2d 334 (Mich. Ct. App. 1988), from
which we quote as follows:
The sole issue raised in this appeal is a legal one: whether an
innocent coinsured spouse, who holds property as a tenant by the
entirety, may recover insurance proceeds of more than one-half the
amount of property damage, but not exceeding policy limits, caused
by the wrongful acts of the other coinsured spouse. . . .
The vast majority of jurisdictions which have addressed this
issue, and which have allowed any recovery at all, have held that the
innocent spouse may only recover one-half of the insurance proceeds,
up to the policy limits. See, e.g., Nationwide Mut Fire Ins. Co. v.
Pittman, 82 N.C.App. 756, 348 S.E.2d 350 (1986); Maravich v.
Aetna Life & Casualty Co., 350 Pa.Super. 392, 504 A.2d 896 (1986);
Republic Ins. Co. v. Jernigan, 719 P.2d 331, 334 (Colo.App. 1985);
Krupp v. Aetna Life & Casualty Co., 103 A.D.2d 252, 479 N.Y.S.2d
992 (1984); Fuston v. Nat’l Mut. Ins. Co., 440 N.E.2d 751(Ind.App.1982); Commercial Union Ins. Co. v. State Farm Fire &
Casualty Co., 546 F. Supp. 543 (D.Colo. 1982); St. Paul Fire &
Marine Ins. Co. v. Molloy, 291 Md. 139, 433 A.2d 1135 (1981);
Lovell v. Rowan Mut. Fire Ins. Co., 302 N.C. 150, 274 S.E.2d 170(1981); Economy Fire & Casualty Co. v. Warren, 71 Ill.App.3d 625,
28 Ill. Dec. 194, 390 N.E.2d 361 (1979); Winter v. Aetna Casualty &
Surety Co., 96 Misc. 2d 497, 409 N.Y.S.2d 85 (1978); Steigler v. Ins.
Co. of North America, 384 A.2d 398 (Del., 1978). . . .
Unfortunately, most of the above-cited cases, while
adequately explaining why an innocent coinsured should not be
precluded from any recovery, have been deficient in explaining why
the recovery should be limited to one-half the property damage (or the
amount of the policy, whichever is less). However, in Molloy, supra,
the Maryland Court of Appeals gave the following explanation, which
we find persuasive:
“Since ‘[w]e have regarded the rights of
husband and wife [to be] separate under the contract,
. . . both logic and justice require that the amount
recoverable be likewise allocated,’ so that the
innocent spouse be compensated for one-half the
damages within the limits of the policy. Steigler,
supra, 384 A.2d at 402. Permitting recovery of more
would necessitate reliance on the ‘oneness’ legal
fiction of marital property which we rejected in
determining that the parties here enjoy and assume
several, not joint, contractual rights and obligations.
Moreover, an award greater than one-half would allow
the innocent spouse to recover in excess of that to
which she would be entitled upon severance of the
tenancy by the entirety, whether by divorce or other
action of the parties.” 291Md. 153-154, 433 A.2d
1135.
....
. . . we believe the better rule is that an innocent coinsured
spouse, who owns property as a tenant by the entirety, may recover
one-half the amount of the property damage (not to exceed the policy
limits) caused by the fire deliberately set by the other coinsured
spouse.
Lewis, 432 N.W.2d at 335-37 (footnotes omitted) (some citations omitted).12 We agree with the
result reached in Lewis and conclude that in the event damages are awarded by the trial court, the
amount should be limited to one-half of the property loss within policy limits.
The judgment of the trial court is reversed and this cause remanded for further
proceedings as hereinabove set forth. Costs are assessed against the appellee, for which execution
may issue if necessary.
___________________________________
FARMER, J.
______________________________
12
Lewis mentions Liggett as the exception in allowing the innocent co-insured’s recovery
of the whole of the insurance proceeds, but concludes, as does this Court, that Liggett’s ruling on
the issue is limited on its facts. See Lewis, 432 N.W.2d at 337.
CRAWFORD, P.J., W.S. (Concurs)
______________________________
HIGHERS, J. (Concurs)