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1 of 100 DOCUMENTS
INSURANCE COMPANY, Defendant-Appellee
C.A. No. 2108
Court of Appeals, Ninth Appellate District of Ohio, Wayne County, Ohio
1985 Ohio App. LEXIS 10015

December 26, 1985
CI 128
DISPOSITION: Costs taxed to appellant.

Law, 517 N. Market St., P. O. Box 153, Wooster, OH
44691, for Plaintiff.
MARK W. BASERMAN, Attorney at Law, 449 N.
Market St., Wooster, OH 44691, for Defendant.

Plaintiff-appellant, Universal Sports, Inc. (USI)
appeals the trial court's judgment denying its claim for
insurance coverage from defendant-appellee, Lightning
Rod Mutual Insurance Company (LRM). On June 19,
1983, a fire caused substantial damage to the business
premises leased by USI. At the time of the fire, USI was
owned, managed, and otherwise operated by Barry
Woodhull. The Wooster Fire Department and a state
arson investigator determined that the fire was of an
incendiary origin, that it was not from natural causes, and
that it was arson. Woodhull filed a claim for insurance
benefits with LRM, but they [*2] later refused to honor
the claim.
Woodhull, as USI, brought an action against LRM
demanding payment of the claim. LRM raised the
affirmative defenses of fraud, lack of consideration and
arson. The action was tried to a court. The court ruled in
favor of LRM concluding that LRM had established the
affirmative defense of arson by a preponderance of the
evidence. This court affirms.

This cause was heard upon the record in the trial
court. Each error assigned has been reviewed and the
following disposition is made:

"The trial court erred as a matter of
law in its legal conclusion that Barry
Woodhull caused the fire and thereby
finding that the defendant had proved its
affirmative defense of arson by a
preponderance of the evidence, because

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1985 Ohio App. LEXIS 10015, *2

such legal conclusion is based upon an
inference upon an inference and lacks
probative value to constitute sufficient or
competent evidence to carry the required
degree of proof on that issue."

caused, or had someone else cause the fire. Nevertheless,
the trial court concluded that five separate pieces of
circumstantial evidence were sufficient to find that
Woodhull had set, or caused to be set, the fire which
destroyed the premises. These five pieces of
circumstantial evidence were:

In order to prove the affirmative defense of arson,
the casualty insurer must establish by a preponderance of
the evidence three basic elements:

"(1) The circumstances surrounding
Woodhull's obtaining of an insurance

(1) a fire of incendiary origin;
(2) a motive on the part of the
insured; and(3) the opportunity of the
insured to cause the fire.
Caserta v. Allstate Ins. Co. (1983), [*3] 14 Ohio App.
3d 167, paragraph two of the syllabus.
These elements may be proven by circumstantial
evidence. Id. Indeed, in the majority of cases where the
defense is raised the only evidence is circumstantial.
Because direct proof of arson is so seldom available
courts have permitted insurers to use circumstantial
evidence to support an inference that the insured set the
fire or arranged to have it set so that the former could
avoid liability under the policy. Quast v. Prudential
Property & Cas. Co. (Minn. 1978), 267 N.W. 2d 493,
In the instant case USI concedes that LRM met its
burden of proof with respect to the elements of
incendiary origin and the insured's motive. USI's
contention, and the issue presented on this appeal, is
whether LRM carried its burden with respect to the third
element, the opportunity to cause the fire. USI's challenge
to the trial court's finding with respect to the element of
opportunity is the equivalent of saying that such a finding
was against the manifest weight of the evidence. In civil
cases judgments supported by some competent, credible
evidence going to all the essential elements of the case
will not be reversed by a reviewing [*4] court as being
against the manifest weight of the evidence. C. E. Morris
Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d
279, syllabus. It is in accordance with this standard that
this court will review the trial court's finding.
At trial, Woodhull's witness placed him at church
and at his apartment, at the approximate time of the fire's
beginning. There was no direct evidence that he either

"(2) Woodhull's whereabouts at the
time of the fire;
"(3) Evidence about the door locks
and keys;
"(4) Certain statements made by
Woodhull to an employee, Steve Roberts;
"(5) Inconsistent statements made by
Woodhull concerning the condition of the
front door of the building upon his arrival
at the scene on June 19, 1983."
USI insists that the trial court's finding on the
element [*5] of opportunity was the result of an
impermissible pyramiding of inferences. However, what
USI actually argues against is not the piling of inference
upon inference, but the reasonableness of the inferences
which the trial court drew from each individual piece of
evidence. What USI seems to be saying is that LRM was
required to prove that Woodhull actually caused the fire,
either directly or indirectly. This is not the law. LRM
need only prove Woodhull's opportunity to set the fire.
To require proof that he actually caused the fire would be
to add a fourth element imposing on LRM a greater
burden then is required. Moss v. Nationwide Mutual Ins.
Co. (May 16, 1985), Franklin App. No. 84AP - 648,
The evidence and reasonable inferences which each
piece separately created provided the trial court with
more than sufficient proof of Woodhull's opportunity to
cause the fire. Woodhull had sole access to the premises
at the time of the fire because he had the only key. The
premises were locked when the fireman arrived. Limited
access and the whereabouts of keys have been considered
an important factor in determining the existence of the

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1985 Ohio App. LEXIS 10015, *5

opportunity element. Great Fire Ins. [*6] Co. v. Stone
(Ala. 1981), 402 So. 2d 899, 901.
Woodhull's accurate testimony included a
description of a hole in the stores' glass front door. In
order to gain entry, however, the fire department found it
necessary to remove the glass in the door. Significantly,
Woodhull further testified that the firemen were at the
scene when he arrived. The only reasonable inference to
be drawn from this testimony is that Woodhull was at the
premises prior to the fire department's arrival. This
inference standing alone was a very strong indication of
his opportunity to cause the fire. In combination with the
other evidence enumerated in the trial court's order, the
trial court was justified in finding that the element of
opportunity was established by a preponderance of the
evidence. The assignment of error is overruled and the

judgment affirmed.
The court finds that there were reasonable grounds
for this appeal.
We order that a special mandate, directing the
County of Wayne Common Pleas Court to carry this
judgment into execution, shall issue out of this court. A
certified copy of this journal entry shall constitute the
mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, [*7] this
document shall constitute the journal entry of judgment,
and it shall be file stamped by the Clerk of the Court of
Appeals at which time the period for review shall begin
to run. App. R. 22(E).