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Ong v. Fire Insurance Exchange

California Court of Appeals, Second District, First Division

April 3, 2015

HUNG VAN ONG, Plaintiff and Appellant,
v.
FIRE INSURANCE EXCHANGE, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC480676 Mel Red Recana, Judge.

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COUNSEL

Law Offices of Dale Washington and Dale E. Washington for Plaintiff and Appellant.

Archer Norris, Limor Lehavi and Paul J. Whitfield, for Defendant and Respondent.

OPINION

CHANEY, J.

SUMMARY

Plaintiff and appellant Hung Van Ong (Plaintiff) appeals from a stipulated judgment entered in favor of defendant and respondent Fire Insurance Exchange (Defendant) after the trial court granted Defendant’s motion for summary adjudication of Plaintiff’s claim for breach of contract.[1] Plaintiff contends that the trial court erred in concluding that a vacancy exclusion in his policy for a loss from “vandalism or malicious mischief” applied to fire damage caused by a warming fire started by a transient that spread to other parts of the property. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff bought the insured property at issue from his brother, Eugene Ong (Eugene), in 2007. The last tenants moved out in February 2010. Gas and electric utilities were turned off. On December 20, 2011, Eugene submitted a claim to Defendant on Plaintiff’s behalf for a fire at the property earlier on December 20, 2011. Defendant retained an experienced fire investigator, Guy Childress. On December 23, 2011, Childress went to the property to investigate and made a written report concluding, “it appears the fire may have been initiated as the result of an uncontrolled warming fire started by an unauthorized inhabitant. Signs of possible habitation were present and the relatively isolated location would permit this. This [sic] presence of firewood[2] in the adjacent room and the mattress next to the large hole in the floor also supports this theory. It is possible the holes burned in the floor by the door were the result of the occupant attempting to throw burning wood outside when the warming fire got out of control.”

Page 905

A claims log indicated that a claims adjuster for Defendant, Debra Kryklund, met with Childress and others on December 23, 2011, and noted the following: “Kitchen. Multiple pts of origin. Bed in kitchen. Unintentional incendiary. Likely transient in house and warming fire got out of hand. Firewood found inside house.”[3]

On February 10, 2012, Kryklund sent Plaintiff a letter disclaiming coverage for his claim. Kryklund’s letter stated, “Our investigation indicates that this loss was the result of vandalism. A trespasser entered the vacant dwelling and intentionally set a fire on the kitchen floor.” Specifically, Plaintiff’s policy with Defendant “stated, “We do not cover direct or indirect loss from:... 4. Vandalism or Malicious Mischief, breakage of glass and safety glazing materials if the dwelling has been vacant for more than 30 ...


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