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Smith v. Allstate Insurance Co

United States District Court, W.D. Louisiana, Alexandria Division

April 19, 2018

LUSTER SMITH
v.
ALLSTATE INSURANCE COMPANY

          DRELL JUDGE.

          OPINION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Plaintiff Luster Smith (“Smith”) seeks payment, penalties and interest from Allstate Insurance Co. (“Allstate”) pursuant to his homeowner's insurance policy. A trial on the merits was held before the undersigned. Because Allstate has shown by a preponderance of the evidence that Smith intentionally set the fire that destroyed his home, Smith's insurance claim is denied.

         I. Background

         A. Procedural History

         Plaintiff Smith filed this action in a Louisiana state court against Allstate, claiming payment under a homeowner's insurance policy for the total destruction of his home by fire (Doc. 1-2). Allstate removed the action, premising jurisdiction on diversity (Doc. 1). Allstate answered the complaint, asserting the affirmative defense of arson and denying coverage (Doc. 4). Allstate alleged the evidence showed the fire was of incendiary origin, and Smith had a financial motive for intentionally destroying his home (Doc. 4).

         B. Trial Evidence

         1. Eric Zeno (Neighbor)

         Eric Zeno (“Zeno”), Smith's neighbor, testified he saw Smith leave the house early in the morning (the sun was up). Zeno was not sure what time he saw Smith leave, but said it could have been 6:00 a.m. (Day 1 of Trial, Witness 1). About 20 minutes after Smith left, Zeno saw smoke coming from Smith's house (Day 1 of Trial, Witness 1). Zeno went outside, saw other people gathered, and found someone had already called the Fire Department (Day 1 of Trial, Witness 1). Zeno saw Smith again when he returned to his house after fire trucks had arrived.

         2. Kevin Smith (Plaintiff's Son)

         Kevin Smith (“Kevin”), Smith's son, testified that he is in the Army (27 years) and the National Guard; he has one brother; his mother is no longer living; and his father is retired military (Day 1 of Trial, Witness 2). Kevin was living in Arkansas when the fire occurred on July 5, 2015, but still owned a house in Alexandria, Louisiana (Day 1 of Trial, Witness 2). Kevin had not been to his father's house since April 2015, but spoke to him every day on the telephone (Day 1 of Trial, Witness 2). A friend called Kevin and told him his father's house was on fire (Day 1 of Trial, Witness 2). Kevin contacted a neighbor, Ms. Cooks, who checked on his father, [1] then he spoke to his father by telephone (Day 1 of Trial, Witness 2). Kevin testified his father was crying and a little hysterical (Day 1 of Trial, Witness 2). The home was an old, wood-frame house, and the kitchen had a bow in the floor (Day 1 of Trial, Witness 2). Kevin testified the refrigerator look like it could fall through the floor, due to the bow (Day 1 of Trial, Witness 2). The front of the house was destroyed by the fire, but the back of the house was not completely gone (Day 1 of Trial, Witness 2).

         Kevin testified that his brother, Vallard Smith (“Vallard”), was working offshore at the time of the fire (Day 1 of Trial, Witness 2). Kevin did not know whether his father had considered filing for bankruptcy (Day 1 of Trial, Witness 2). Kevin was unaware his father owed about $48, 000 to the IRS because he had not been paying his income taxes (Day 1 of Trial, Witness 2). He did not know whether Smith was having any financial difficulties (Day 1 of Trial, Witness 2). Smith had an IRS lien and had made arrangements to pay it (Day 1 of Trial, Witness 2).

         Kevin testified he has things from his parents' home at his house because he (and his brother) took a few things after their mother passed away (Day 1 of Trial, Witness 2). Smith also kept a few clothes at Kevin's house because he occasionally spent a day there (Day 1 of Trial, Witness 2). After the fire, Smith stayed in Kevin's house (Day 1 of Trial, Witness 2). Smith continued to receive his mail at his own address for a while after the fire, because Smith forgot to have his mail forwarded to Kevin's house.

         Kevin testified that his parents had owned the home since 1964, and they were married about 60 years (Day 1 of Trial, Witness 2). Kevin testified that, although the neighborhood had changed and become less safe, his father was very attached to his house (Day 1 of Trial, Witness 2). Kevin also testified that the lot itself meant something to them, since it had a large grapefruit tree, a plum tree, a fig tree, and two pecan trees (Day 1 of Trial, Witness 2).

         3. Anna Fuller (Neighbor)

         Anna Fuller (“Fuller”) testified that she had lived two houses down from Smith since 1976, and her sons played with his sons (Day 1 of Trial, Witness 3). On July 5, 2015, a neighbor knocked on Fuller's door and told her son that Smith's house was on fire (Day 1 of Trial, Witness 3). Fuller's son immediately told her, and Fuller drove to Kevin's house about 30 minutes later and told Smith about the fire (Day 1 of Trial, Witness 3). Smith was surprised when she told him, threw his hands up in the air, shaking them, then got into his car and drove home (Day 1 of Trial, Witness 3). Fuller did not know Smith was at Kevin's house, but Smith had told her he was staying at both houses and she had seen him at Kevin's house two or three weeks before, so she went to see if he was there (Day 1 of Trial, Witness 3). Fuller further testified that she did not see Smith moving furniture out of his house (Day 1 of Trial, Witness 3).

         After the fire, Fuller saw people taking wiring, Smith's air conditioner, and part of his fence (Day 1 of Trial, Witness 3). Fuller did not recognize any of the thieves, but she said a lot of people walk through the neighborhood at all hours of the day and night (Day 1 of Trial, Witness 3). Fuller testified Smith told her, later, that the fire had started from the refrigerator (Day 1 of Trial, Witness 3).

         4. Mashack McCall, Jr. (Neighbor)

         Mashack McCall, Jr. (“McCall”) testified that he had lived in the neighborhood for 60 years and across the street from Smith since Smith moved there (Day 1 of Trial, Witness 4). McCall saw Smith the evening of July 4th when he took a plate of food to his house (Day 1 of Trial, Witness 4). McCall left home between 7:30 and 8:00 a.m. the next morning to drive to his hunting camp (Day 1 of Trial, Witness 4). McCall's wife called him about 45 minutes later to tell him Smith's house was on fire, and his car was not there (Day 1 of Trial, Witness 4). McCall's wife called him again to report Smith was back home and trying to get into his house (Day 1 of Trial, Witness 4). McCall's wife called him a third time to verify the fire was out, Smith was okay, and someone was going to pick him up (Day 1 of Trial, Witness 4).

         McCall testified that he saw Smith's car at his house every day before the fire (Day 1 of Trial, Witness 4). Before the fire, McCall did not see Smith move anything out of his house (Day 1 of Trial, Witness 4). Two or three days after the fire, McCall saw thieves going in and out of Smith's house, taking things like a hot water heater and small boxes (Day 1 of Trial, Witness 4). According to McCall, the neighborhood had changed over the years, had become “infested” with drugs, addicts, and homeless people, and had a lot of crime (Day 1 of Trial, Witness 4). McCall testified that Smith's backyard was very vulnerable because there was a vacant house behind his house and a field next to his house (Day 1 of Trial, Witness 4). Anyone could jump over Smith's backyard fence and enter his yard from the vacant house or the field (Day 1 of Trial, Witness 4).

         When McCall went into Smith's house the evening before the fire, it looked like it always did, with plaques and things from the military, Smith's wife's teaching, the VA, and the VFW (Day 1 of Trial, Witness 4). Smith had a white stuffed animal in his living room and a big calendar (Day 1 of Trial, Witness 4). McCall testified that Smith checked his son's house every day, although not always at the same time of day (Day 1 of Trial, Witness 4).

         5. Luster Smith (Plaintiff)

         Smith testified he was 75 years old when the fire occurred (Day 1 of Trial, Witness 5). He and his wife were married almost 50 years when she passed away, and he has two sons (Day 1 of Trial, Witness 5). Smith was in the military for 20 years, then he worked at the VA Medical Center in Pineville, Louisiana for 25 years (Day 1 of Trial, Witness 5). Smith's wife taught school (Day 1 of Trial, Witness 5). Smith receives retirement pay from the military and the VA, as well as Social Security, for a total of $2, 898.16 per month (Day 1 of Trial, Witness 5).

         Smith has received the National Defense Service Medal, the Good Conduct Medal, the Meritorious Service Medal, a Bronze Star, Service Stars, the Republic of Vietnam Campaign Medal, a Bronze Star with Device Expert, and a Purple Heart (Day 1 of Trial, Witness 5). Some of those awards were destroyed in the fire, and some were only charred (Day 1 of Trial, Witness 5). All of Smith's awards were in the fire (Day 1 of Trial, Witness 5). Smith testified that, after the fire, he went into the house and retrieved the 2012 calendar with his wife's date of death circled, and a teddy bear (“Pookie”) he had given her (Day 1 of Trial, Witness 5).

         Smith testified his father-in-law purchased the house for his wife in the 1960s and they immediately insured it through Allstate (Day 1 of Trial, Witness 5). They paid $8, 700 for the house, paid it off, then mortgaged it again for $40, 000.00 (for remodeling) about 15 years before the fire (Day 2 of Trial, Witness 1). Smith finished paying the second mortgage off after the fire (Day 1 of Trial, Witness 5). Smith paid the premiums on the Allstate homeowner's insurance policy through the date of the fire (Day 1 of Trial, Witness 5).

         Smith testified that, although he said in his first deposition that he had not gone into the house after the fire, he had forgotten about retrieving the calendar and the teddy bear Pookie a couple of days after the fire (Day 1 of Trial, Witness 5). Smith had also said a fireman had given them to him, which was not correct (Day 1 of Trial, Witness 5). Smith said his memory became clearer about a week after the fire (Day 1 of Trial, Witness 5). Smith said both the bear and calendar were smoky but not burned because they were in his wife's bedroom, which did not burn (Day 1 of Trial, Witness 5). The teddy bear was a little discolored from smoke (Day 1 of Trial, Witness 5). Smith wiped the bear down but it is still discolored (Day 1 of Trial, Witness 5). Smith did not remove any medals from his house (Day 1 of Trial, Witness 5). Smith said he stayed shaky for about six months after the fire (Day 1 of Trial, Witness 5).

         Smith testified he always gets up at 5:00 a.m., has breakfast, and dresses (Day 1 of Trial, Witness 5). On the day of the fire, he checked on Kevin's house after breakfast, about 6:00 or 6:15 a.m. (Day 1 of Trial, Witness 5). Smith checked Kevin's house three or four times per week, at different times of the day (Day 1 of Trial, Witness 5). Smith never lived for any protracted time in Kevin's house, and all of Smith's belongings were in his own home (Day 1 of Trial, Witness 5). Kevin did not have a TV or radio at his house (Day 1 of Trial, Witness 5). Anna Fuller went to Kevin's house to tell Smith his house was on fire, which shocked Smith (Day 1 of Trial, Witness 5).

         At least a week after the fire, an Allstate representative (Childs) visited Smith at Kevin's house and took a picture of him with the teddy bear Pookie and the calendar (Day 1 of Trial, Witness 5). Smith was still not fully alert and was somewhat confused (Day 1 of Trial, Witness 5). The fire was of incendiary origin and gasoline was used ...


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