Innocent Co-insured; Theft Claim
I have a theft claim against a homeowners policy. The theft was by the estranged wife of client. I am looking for cases that state that an innocent co-insured can recover under the policy even though the policy language excludes acts by another insured.
Answer: The majority rule of recent cases around the country is that the "innocent co-insured" can recover but the current Oklahoma law is to the contrary.
For the old rule, see: 45 C.J.S. Insurance §822: Where prop. is jointly owned or there is a joint obligation on the part of the owners to save and preserve the property, an innocent owner cannot recover on the policy, where a co-owner willfully set the property on fire. Key # Ins. 429. See to same effect, 5 Appleman §3113, p.391, n.60. Accord: California Ins. Co. v. Allen, 235 F.2d 178 (5th Cir. TX 1956), citing Bridges v. Commercial Standard, 252 S.W.2d 511.
For the Oklahoma cases, See: Kiddie V. Great Southwest Fire Ins. Co., 1979 OK 141, 601 P.2d 740: Where H was sole named insured and owned property prior to marriage and W's interest in property was that divorce court gave her an interest in the insurance proceeds, she was not a "joint owner" so as to raise the question.
Short v. Okla. Farmers Union, 1980 ok 155, 619 P.2d 588: W barred by H's arson where property jointly owned and both were co-insureds.
For a lot of other jurisdiction cases, see: Anno. 64 A.L.R.4th 714 "Theft and vandalism insurance: coinsured's misconduct as barring innocent coinsured's right to recovery on policy."
This is an issue which really needs to be taken up to the Oklahoma Supreme Court to see if we can get the old rule reversed.
Posted on Thu, October 20, 2011
by Sharon Coleman filed under