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Farm Bureau Mutual Insurance Co. of Arkansas, Inc. v. Davenport

Court of Appeals of Arkansas, Division III

April 5, 2017

FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC. APPELLANT
v.
FUTURE DAVENPORT APPELLEE

         APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CV-12-77] HONORABLE CHALK MITCHELL, JUDGE

          Philip Hicky II LTD, by: Phil Hicky and Jessica J. Trail, for appellant.

          Daggett, Donovan & Perry, by: Jesse B. Daggett and Joe R. Perry, for appellee.

          PHILLIP T. WHITEAKER, Judge

         Farm Bureau Mutual Insurance Company of Arkansas, Inc. ("Farm Bureau") appeals from a jury verdict in favor of appellee Future Davenport. On appeal, Farm Bureau challenges the St. Francis County Circuit Court's denials of its motion for directed verdict and its motion for judgment notwithstanding the verdict (JNOV); in addition, Farm Bureau challenges the circuit court's rejection of its proposed jury instructions. We affirm.

         I. Background

         Davenport is the owner of two homes: one located in Battle Creek, Michigan, and the other located on Hudspeth Street in Palestine, Arkansas ("the Hudspeth house"). Davenport purchased a policy from Farm Bureau that insured the Hudspeth house against loss caused by fire, vandalism, or malicious mischief. In September 2010, while Davenport was at her home in Michigan, two individuals broke into the Hudspeth house and caused a fire that destroyed the property. Davenport made a claim with Farm Bureau for the loss, claiming the policy limits of $82, 000 on the dwelling and $40, 000 on the contents. Farm Bureau denied the claim, however, asserting that the home had been unoccupied at the time of the fire and thus the loss was not covered pursuant to the following provision in the insurance policy:

         CONDITIONS

12. Vacancy or Unoccupancy
If you vacate or fail to occupy the dwelling on the residence premises for a period of thirty (30) consecutive days, we will not cover loss to any property caused by the following perils:
(a)vandalism or malicious mischief;
(b)breakage of glass;
We shall not be liable for any property loss if you vacate or fail to occupy the dwelling on the residence premises for a period of sixty (60) consecutive days.

(Emphasis in original.) The insurance policy also defined the terms "unoccupied" and "you" as follows:

The word "unoccupied" means being without human inhabitants, but containing enough furnishings or other personal property to show an intention to return and occupy the dwelling at the address shown on your Declaration.
The words "you" and "your" mean the person or persons listed as a named insured on the Declaration. This also includes your spouse and dependent relatives if they are living in your dwelling located at the address shown on the Declaration.

(Emphasis in original.)

         Davenport filed suit against Farm Bureau in the St. Francis County Circuit Court, seeking payment of her claim, plus attorney's fees and the twelve percent penalty provided by Arkansas Code Annotated section 23-79-208 (Repl. 2014). Farm Bureau answered, admitting that Davenport had purchased a policy of insurance from it and that vandals had set the residence on fire in September 2010. It denied that Davenport had coverage, however, because she had "failed to comply with all of the terms, conditions, and provisions of the policy. The ...


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