Short v. Oklahoma Farmers Union Insurance Co.

HODGES, Justice,

dissenting.

The crux of this case is whether the acts of a husband can be attributed to the wife, thus destroying her rights under an insurance policy. It is argued by the wife that: 1) under the terms of the insurance policy the rights, duties and obligations of co-insured are several, and 2) a wife cannot be barred from a cause of action solely by the independent acts of her husband.

I

Although this is a case of first impression in Oklahoma, the question of whether the obligations of co-insureds are joint or several has been determined in several jurisdictions. The view relied upon by the majority 1 is bottomed on a case involving a business partnership, Bellman v. Home Insurance Co., 178 Wis. 349, 189 N.W. 1028 (1922). Bellman holds that the insurer is not liable for loss caused by the neglect of the insured to save and preserve the property; and that it is a joint obligation of the co-insureds. Under this theory, because the agreement is joint, intentional destruction is charged to both insureds and recovery by the innocent co-insured is precluded. Intentional burning of the insured property by one of the insureds voids the policy under the majority’s position.2

*592Principles of public policy prohibit recovery to an insured who fraudulently and intentionally sets fire to property covered by an insurance contract.3 However, the later cases hold that the defense of arson by the insurer will generally not defeat an insured’s recovery where there has been no finding that: the insured directly set the fire; had knowledge and authorized its setting; or later ratified the willful burning.4 The question identical to the one at bar, was considered by the Maine Supreme Court in Hildebrand v. Holyoke Mutual Fire Ins. Co., 386 A.2d 329, 331 (Me. 1978). In Hildebrand, the Court said the sole issue raised was whether it was proper to enter judgment for the wife whose husband set fire to her home. The Court held that it was not against public policy or violative of the terms of the insurance contract to permit recovery by the wife where the evidence demonstrated she was completely innocent of any wrongdoing. Under the terms of the policy the term “insured” was construed to mean a specific insured, the one who caused the loss sought to be recovered under the policy.5 Recovery was permitted by the “named insured” for the loss despite the fact that it resulted from the intentional act of another “insured.” 6 The court stated that it reached the result irrespective of whether the interests of the wife and her husband in the destroyed property were joint or several.

In Auto Owners Ins. Co. v. Eddinger, 366 So.2d 123, 124 (Fla.App. 1979), the husband torched the home. The court posed the question as being whether the fraudulent act of a named co-insured husband voided the policy protection to an innocent co-insured wife.7 The insurer contended that the policy language clearly indicated that the company intended to insure the couple jointly. In finding it did not, the court held that the question of whether the coverage was joint or several must be construed in favor of the wife because there was no clear indication to the contrary. It found where the policy language is susceptible to more than one interpretation, the interpretation which provides coverage for the insured should be applied.

II

The wife contends that the reasoning behind the decisions, relied upon by the majority, has ultimately been premised upon the legal status of a man and wife as perceived under the laws of the particular state. I agree.

In Howell v. Ohio Casualty Insurance Company, 124 N.J. 414, 307 A.2d 142 (Super.Ct.Leg.Div. 1973), modified 130 N.J.Super. 350, 327 A.2d 240, 242 (1974), the New Jersey Court was faced with a very similar situation. The husband deliberately set fire to the family home and committed suicide while the house was still burning. The house was rendered uninhabitable and the personal property was destroyed. The wife, *593who was named as a co-insured on the insurance policy, sought to recover for the fire loss. The New Jersey Court, relying on statutes similar to Oklahoma’s, based its decision upon the legal status of married women under New Jersey law, and on the separate legal identity of married women. The court explained that a refusal to permit recovery by the innocent spouse could only be expostulated on the outmoded metaphysical concept based on the legal fiction of the oneness of husband and wife. The court stated this interpretation could not seriously be defended and that to do so would result in the continued production of harsh and inequitable results.

When the Appellate Division of the Superior Court of New Jersey reviewed Howell, it held that the trial court had correctly determined the arson of the husband did not bar recovery under the policy by the innocent wife. The court said:

“[W]e reach this result irrespective of whether the interests of the wife in the tenancy by the entirety, in the personal property, or in the contract rights under the policy are deemed to be joint or several. The significant factor is that the responsibility or liability for the fraud-here the arson-is several and separate rather than joint, and the husband’s fraud cannot be attributed or imputed to the wife who is not implicated therein. Accordingly, the fraud of the co-insured husband does not void the policy as to plaintiff wife” [Citations deleted].

Where the property of an insured is tor-tiously destroyed by his or her spouse, the wrongful conduct cannot be attributed to the insured in order to prevent recovery on the policy because of the marital relationship. The Wisconsin Supreme Court in Shearer v. Dunn Co. Farmers Mutual Ins. Co., 39 Wis.2d 240, 159 N.W.2d 89, 93 (1968) considered a reversed factual situation. In Shearer, the wife intentionally burned the home. The court held that the acts of the wife did not preclude recovery by the husband. The court said:

“This court rejects the invitation to invent a doctrine that a spouse should be denied recovery on an insurance contract because of action of the other spouse when those actions cannot be imputed to the insured spouse. The marriage relationship should not be used as a basis for such a law. Married people are still individuals and responsible for their own acts. Vicarious liability is not an attribute of marriage.”

The separate legal identity of husband and wife has been recognized in Oklahoma since statehood8 There is no question that, under the provisions of 32 O.S.Supp. 1973 § 15, the wife has the right to sue and be sued in her own name. She may maintain an action for injuries to either her natural or statutory rights as if she were a feme sole.9 Pursuant to 32 O.S. 1971 § 9(1), neither the husband nor wife, as such, is answerable for the acts of the other; and a spouse has no right to dispose of the other’s property without permission.10

Ill

Insurance contracts are contracts of adhesion, and where the contract is susceptible of two constructions, the construction most favorable to the insured must be adopted. Standardized or printed contracts are interpreted most strongly against the *594party who prepared the form.11 The policy could have been written to negate the collection of insurance by a co-insured under this set of facts. A careful examination of the law reveals that, in the State of Oklahoma, there is no impediment to the spouse being able to recover on a policy where the act of the other spouse has occasioned the loss. A fire insurance policy which covers the interests of more than one insured should be considered several as to each person insured unless the terms are plainly stated to the contrary and are clearly called to the attention of the insured. The fraud or misconduct of a co-insured spouse should not bar recovery of the innocent co-insured.

I, therefore, respectfully dissent.

I am authorized to state that Justice WILLIAMS and Justice DOOLIN concur in the views herein expressed.

. See Annot., “Right Of Innocent Partner Against Insurer Where Other Partner Destroys The Property,” 27 A.L.R. 948 (1923) for cited cases; and Annot., “Fraud, False Swearing Or Other Misconduct Of Insured As Barring Recovery On Property Insurance By Innocent Co-Insured, 24 A.L.R.3d 450 (1969).

. The portions of the policy relied on by the trial court and the appellee provide:

“CONCEALMENT, FRAUD. This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in the case of any fraud or false swearing by the insured relating thereto.
“PERILS NOT INCLUDED. This Association shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by: ... (i) neglect of the insured to use all reasonable means to save and preserve the property at and after a loss or when the property is endangered by fire in neighboring premises.
*592“CONDITION SUSPENDING OR RESTRICTING INSURANCE. UNLESS OTHERWISE PROVIDED IN WRITING ADDED HERETO THIS ASSOCIATION SHALL NOT BE LIABLE FOR LOSS OCCURRING (a) while the hazard is increased by any means within the control or knowledge of the insured; ...”

Insured is defined rather broadly in the policy as:

“The unqualified word ‘Insured’ includes (a) the named Insured and (b) the residents of his household, his spouse, the relatives of either, and any other person under the age of twenty-one (21) in the care of an Insured. ...”

. Orient Ins. Co. v. Parkhill, 170 F.2d 510 (5th Cir. 1948).

. Hosey v. Seibels Bruce Group, S.C. Inc. Co., 363 So.2d 751, 753 (Ala. 1978).

. Pawtucket Mutual Ins. Co. v. Lebrecht, 104 N.H. 465, 190 A.2d 420, 422 (1963).

. See Arenson v. Nat’l. Automobile & Casualty Ins. Co., 45 Cal.2d 81, 286 P.2d 816 (1955).

. The policy in Eddinger contained a similar provision [See note 2, supra] to the policy in this case:

“[The] entire policy shall be void, if whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstances concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”

.It is provided by 32 O.S.Supp. 1973 § 15:

“Woman shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injury sustained to her reputation, person, property, character or any natural right, her own medical expenses, and by reason of loss of consortium, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone.”

. Moore v. Moore, 59 Okl. 83, 158 P. 578 (1916); Fiedeer v. Fiedeer, 42 Okl. 124, 140 P. 1022 (1914).

. Caylor Lumber Co. v. Mays, 73 Okl. 30, 174 P. 521 (1918).

. Wilson v. Travelers Ins. Co., 605 P.2d 1327, 1329 (Okl.1980); Harjo Gravel Co. v. Luke Dick Co., 194 Okl. 537, 153 P.2d 112 (1944); Wilson v. Mid-Continent Life Ins. Co., 159 Okl. 191, 14 P.2d 945, 84 A.L.R. 386 (1932).