dissenting.
I agree with the majority of the panel that arson may be proved by circumstantial evidence and that State Farm is entitled to the benefit of every inference favorable to it which may be fairly drawn. However, the circumstantial evidence here was simply insufficient. In addition to proving motive and the fact that the fire was of incendiary origin there must be evidence that the insureds had an opportunity to set the fire, or of some additional circumstance that establishes culpability.
Generally, opportunity is considered to be something more than proof that there was a possibility that the owner might physically have been able to set off the fire.
Powell v. Merrimack Mutual Fire Insurance Company, 667 F.2d 26, 29 (11th Cir. 1982).
There was no evidence placing either of the Arms at or near the scene of the fire. The only evidence was their testimony that they were at Jonesboro, Tennessee, 50 miles away. Mr. Arms testified that when he came to the home the day following the first fire, he observed that the garage door in the rear of the house was not fastened. The door had been padlocked, but the hinge that held the padlock had been pried loose from the door. He also testified on cross-examination that he asked the fire department about this and was told they did not do it, that the house was totally open when they arrived. Thus we do not have a case where the insureds had the only opportunity for entry.
The Arms’ credibility was not challenged by any evidence of inconsistent statements or questionable actions. The insurance policy had been taken out while they were living in the home. Their circumstances were straitened but not desperate. They had rented the insured premises for the amount of the mortgage payments, although they had not been able.to collect the rent and the tenants had moved out. They had planned to use the rent to make the mortgage payments.
Numerous cases are cited in Couch, Cyclopedia of Insurance Law 2d, § 74.668 (rev. ed. 1983), in which the evidence was held to be sufficient to permit a finding of arson by the insured. In each case there was some additional circumstance beyond motive and an incendiary fire, such as securing excessive insurance, making an inflated claim, claiming loss of property which was not on the insured premises, removing possessions before the fire, or evidence of opportunity to set the fire. State Farm has cited us to no case where motive and incendiary fire alone have been held to be sufficient to permit a finding of arson by the insureds.
In Quast v. Prudential Property and Casualty Company, 267 N.W.2d 493 (Minn.1978), cited by appellant, there was evidence of opportunity. The insured testified he had left the premises at 7:00 p.m. after locking them and claimed to have been in a bar until the raging fire occurred at 10:00 p.m. There was also evidence that the insured had attempted to secure excessive. insurance.
In Elgi Holding, Inc. v. Insurance Company of North America, 511 F.2d 957 (2d Cir.1975), the only other case cited by State Farm, the insured had secured an income continuation policy immediately prior to the fire. He had written bad checks and had outstanding judgments and liens against him. More importantly, although he denied complicity in the fire his “testimony was often contradicted by other evidence.” Id. at 959.
Similarly, in each of the cases cited by the majority there was an additional circumstance beyond motive and an incendiary origin of the fire.
In Boone v. Royal Indemnity Company, 460 F.2d 26 (10th Cir.1972), in holding that the verdict for the insurance company *1253was supported by the evidence the court held:
We have in the case at bar 1) arson unquestionably; 2) ample motive; and 3) unexplained surrounding, inculpating circumstances which are relatively strong.
Id. at 29. Those circumstances included keeping insured merchandise on the premises when it would ordinarily have been loaded on a truck; claiming that the key to the premises had been locked inside and going to the insured’s home with some other people to look for another key, notwithstanding the fact that the insured knew he did not have a second key; and a mysterious phone call made by the insured an hour before the fire. It was not claimed that the insured had set the fire himself. Instead, it was a “professional torch job”.
In Gregory’s Continental Coiffures & Boutique, Inc. v. St. Paul Fire & Marine Insurance Company, 536 F.2d 1187 (7th Cir.1976), the additional circumstance was evidence that the insured had purchased drums like those used to perpetrate the arson. While in Lockamy v. United States Fidelity and Guaranty Company, 652 F.2d 753 (8th Cir.1981), after stating that it was a somewhat closer question whether the evidence showed that the fire was started by or at the direction of the insured, than whether it was an incendiary fire, the court noted that the insured two months before the fire had taken out a new fire insurance policy for an amount substantially greater than previous policies and that she had moved many of her appliances and belongings out of the home shortly before the fire.1
As stated in the court’s opinion, the district judge in Goodwin v. Maryland Casualty Company, 233 F.Supp. 81, 83 (E.D. Okla.1964), states that “motive plus the incendiary origin of the fire, would, in the absence of believable rebuttal evidence, be sufficient to sustain the affirmative defense [of arson].” However, the statement is made in the context of the trial judge’s opinion in a non-jury case in which he held that the defense of arson had not been established.
The fact that there were two fires in the instant case comes the closest to an additional circumstance beyond motive and an incendiary fire which would permit a finding of arson by the insureds. I would agree that they are unusual circumstances. But they do not tend to prove that the Arms had the opportunity to set the fires or that they acted in a way which indicates they were attempting to defraud the insurance company.
I would affirm the judgment of the District Court.
. The fact that the Arms’ insurance coverage was to terminate in a few days is not the equivalent of securing excessive insurance. The Arms had reported to State Farm that the home was vacant and the insurance was being terminated for that reason. Insurance for vacant property, if available at all, was very expensive. Thus the imminent termination of insurance is a consequence of events rather than a suspicious act of the insureds.