When someone in Grand Prairie, Fort Worth, Arlington, Dallas, Irving, Mesquite, Garland, Richardson, Carrollton, De Soto, or anywhere else in Texas leaves their house – is it vacant? What if you moved out to renovate it? What if you moved out while it was up for sale? What if you moved out while you had a temporary job out of town? What if you moved out to take care of a sick relative or friend?
When a house seems to be vacant and a loss occurs, the insurance company that insures the house will probably deny the claim under the “vacancy exclusion” in the insurance contract. Of course when this happens, an experienced Insurance Law Attorney needs to be consulted immediately. Whether the house is vacant, as that term is defined in the insurance contract and Texas courts, will determine whether or not there is coverage.
A case decided by the Court of Appeals, Waco, in 1971, is a good place to look for some guidance. The style of the case is, Germania Farm Mutual Aid Association v. Bobby D. Anderson and Lavern Anderson.
Here are some facts of the case:
The lawsuit, based on a fire insurance policy was tried to a jury on a stipulation, the effect of which was that the sole issue was whether there was evidence to support the jury finding that the building was not “vacant.”
The policy defined “vacant”, in relevant part as: that there is no person “living on the immediate premises continuously, as such person’s main place of abode.”
The Anderson’s, owners of the property, were divorced after the policy was issued. The house was damaged by fire about a week after the divorce. For the last five years of the marriage Mr. Anderson’s construction work required him to be absent from home except on weekends. They were permanently separated six months before the fire, and Mrs. Anderson then went to another town to work. A substantial portion of the household furnishings and personal belongings remained in the house, which was set aside to Mrs. Anderson in the divorce decree; much had also been removed, including a gas cookstove. Mrs. Anderson had electric power and gas disconnected because of lack of funds. She visited the house on her days off once each week to “see if everything was all right”, but she did not sleep there. She testified she maintained the house as the home for herself and children. Mr. Anderson continued to return to the house and occupy it each week-end, and to work out of town during the week, There was testimony Mr. Anderson continued to “make his home” there, where he left his clothing and received his mail. During the week he lived in a rented house or rooms in other cities.
In this case the court noted that neither party cited any authority for the definition of “living on the premises” as the term is used in the policy. As the court noted, it is not a legal term. But they did point out that the policy itself qualifies the term by the added words: as the “main place of abode” and “continuously.”
“Abode”, a term of ordinary meaning, is simply a synonym for residence or dwelling. To “reside continuously” is construed to authorize “brief temporary absences where intention of returning is clear” and is not used literally as requiring one to remain at all times. Without the qualification in the contract, “vacant” means entire abandonment, deprived of contents, empty, according to other courts including the Texas Supreme Court. Also according to treatises on insurance law, including, Appleman,Insurance and Couch, Insurance.
“Continuously” as used in connection with a vacancy clause is held to authorize “more than one period of unoccupancy to exist”, and does not imply that someone shall remain in the building all of the time without interruption. This is also stated by treatises on insurance law.
This court ultimately ruled that there was sufficient evidence for the jury to determine that the house was not vacant pursuant to the language of the insurance policy and affirmed a finding in favor of the Anderson’s that the exclusion did not apply.
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