Section 13.23 Policies Protecting Against Fire, Windstorm, and Other Casualty Loss

• Library: Insurance Practice 2015

In actions for recovery of insurance proceeds for covered loss of property, the burden is on the plaintiff/insured to establish the following:

· The issuance by the insurer of a policy of insurance on certain specified property for loss or damage resulting from a listed peril or cause

· Damage or destruction to the covered property by a peril or cause specifically covered by the terms of the policy

· That the policy was in force on the date of the loss

MAI 31.09 [1978 New]; Tuohey v. Nat’l Ins. Underwriters, 369 S.W.2d 421 (Mo. App. W.D. 1963). The elements of proof on a fire insurance policy claim are reiterated in Travers v. Universal Fire & Casualty Insurance Co., 34 S.W.3d 156 (Mo. App. W.D. 2000).

Additionally, if not admitted by the insurer, it is also incumbent on the plaintiff/insured to establish an ownership or insurable interest in the property in question both at the time the insurance was issued and at the time of the loss. Prewitt v. Cont’l Ins. Co., 538 S.W.2d 902 (Mo. App. E.D. 1976).

In property loss cases, the burden is on the insurer both to plead and prove applicable affirmative defenses such as:

· the intentional causation of the loss by or at the direction of the insured;

· material misrepresentations by the insured in obtaining the policy;

· fraudulent representations or acts by the insured in the presentation of the claim; and

· applicability of any stated exclusions in the policy.

In fire insurance cases, a central issue often concerns the extent of the covered loss suffered by the insured, and various statutory provisions have been enacted relative to the necessary degree of proof of the extent of damage.

Total loss of real property: Section 379.140, RSMo 2000, provides that, when there is a total loss of real property by fire, there is a conclusive presumption that the real property was worth the amount for which it was insured on the day it was insured. The burden is on the insurance company to show the amount of depreciation, if any, between the time the policy was issued and the time of the loss. See the cases collected at 19 Mo. Ann. Stat. Part III, § 379.140, n.27 (West 2002). Caveat: The conclusive presumption under § 379.140 is not applicable if the valuation stated in the policy occurred through fraud, misrepresentation, or collusion. Gamel v. Cont’l Ins. Co., 463 S.W.2d 590 (Mo. App. E.D. 1971); DeWitt v. Am. Family Mut. Ins. Co., 667 S.W.2d 700 (Mo. banc 1984). Additionally, it is to be noted that, under the specific...