Estate entitled to hearing on cause of fire

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A plaintiff is entitled to a hearing on whether vandalism caused the fire at an unoccupied home, the 7th Circuit Court of Appeals ruled today. The District Court never made a finding on the investigation that indicated it may have been burglars who started the fire.

In the Estate of Wavie Luster v. Allstate Insurance Co., No. 09-2483, Rick Gikas, personal representative of the estate, appealed summary judgment for the insurance company on his breach of insurance contract suit. Allstate insured Wavie Luster's home. The widow was injured in a fall and moved into an extended-care facility in October 2001. Gikas became her power of attorney and told the insurer to bill the premiums to his law office. She never returned the house and died nearly five years later. Three months after her death, a fire caused extensive damage to the unoccupied house. Gikas submitted a claim on behalf of the estate. Allstate then discovered the home had been empty that entire time and denied the claim. Allstate continued to bill Gikas, and Gikas paid claims for two more years after the fire until Allstate cancelled the policy retroactively to November 2001 and returned the premiums paid since then.

Part of the policy says there's no coverage for any loss consisting of or caused by any substantial change or increase in hazard, if it's within the control of the insured; and there's no coverage for loss caused by vandalism if the dwelling is vacant or unoccupied for more than 30 consecutive days immediately prior to the vandalism. The policy also requires an insured to notify the company of any change in occupancy in the dwelling.

The District judge ruled the duty of notification had been breached but based his grant of summary judgment on the increase in hazard portion of the policy by leaving the house unoccupied.

Based on Allstate's policy terms, if a homeowner went on a 31-day trip and a fire occurred during that time, the insured wouldn't be covered. It implies if you are away a lot, your coverage lapses. There is also the chance a homeowner put in special precautions to keep the house safe while away.

"There is no rule that moving out of a house per se increases the hazards against which the insurance company has insured you," wrote Judge Richard Posner.

Gikas is entitled to a remand because it's unknown whether vandalism caused the loss. Allstate is also entitled to a hearing on the applicability of the vandalism exception should the hazard exclusion be found inapplicable.


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.