
    Deanna McBRIDE, Plaintiff-Appellee, v. SECURITY INDUSTRIAL FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 92-751.
    Court of Appeal of Louisiana, Third Circuit.
    July 14, 1993.
    Carol Stookey Hunter, Rayne, for Deanna McBride.
    Victor L. Marcello, Donaldsonville, James Edwards Marchand, Baton Rouge, for Security Indus. Fire Ins. Co.
    Before DOMENGEAUX, C.J., and GUIDRY, SAUNDERS, WOODARD and CULPEPPER , JJ.
    
      
       Honorable William A. Culpepper participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
    
   WOODARD, Judge.

This appeal arises out of a claim for property damage under a policy of fire and extended coverage insurance. The issue is coverage.

Deanna McBride (McBride) is the owner of a one-story wood frame house located in Rayne, Louisiana. Security Industrial Fire Insurance Company (Security) issued a fire and extended coverage insurance policy on the premises commencing on August 15, 1982. The policy contained an extended coverage provision providing additional coverage for perils of windstorm, hail, explosion, etc., and was in full force and effect at the time of the occurrence.

On August 15, 1985 Hurricane Danny caused damage to the insured premises. McBride thereafter obtained various estimates of repairs and submitted them along with a claim for loss to Security. On February 4, 1986, Security issued a check to McBride in the amount of $1,396.38 which amount was substantially lower than the various estimates McBride submitted. McBride refused the check and subsequently filed suit.

A trial on the merits was held on February 9, 1987. Evidence was submitted regarding the various estimates of repair. McBride testified during the course of the trial that the premises in question were unoccupied from January 1985 through October 1985.

At the conclusion of the trial, Security moved for a directed verdict based on a 60 day non-occupancy clause in the insurance policy. The trial court denied Security’s motion for directed verdict stating that Security failed to plead the “exclusion” as an affirmative defense in its answer. The court then awarded judgment in favor of plaintiff in the amount of $3,500 plus $750 in attorney’s fees. Security suspensively appeals this judgment.

LAW

Security contends that the trial court erred when it held that Security was barred from raising non-occupancy as a defense because it was not pled in their answer. Security argues that when McBride testified regarding the house being unoccupied and no objection was raised, the pleadings became enlarged, effectively amending Security’s answer to include the affirmative defense of non-occupancy. Security cites Monju v. Continental Casualty Co., 487 So.2d 729 (La.App. 5th Cir.1986) as support.

Alternatively, Security argues that the occupancy clause is not contained within the exclusion provision but is found within the main body of the insurance contract, making it a condition precedent to coverage and that under R.S. 22:691, this language is included in the standard fire insurance policy-

We will first address Security’s alternative argument. Entered into evidence was a copy of the policy, which states in pertinent part on page two, under the “standard provisions”, starting at line 28:

“Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring ...
(b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days; ...”

This is a condition that suspends insurance if the insured building is vacant beyond a period of 60 days.

During the course of the trial, McBride was asked on direct examination:

Q Was anyone living in the house at the time?
A No, not at the time.

Having thus opened the door, defense counsel proceeded to walk through it in the following cross-examination which was elicited without objection by plaintiff’s counsel:

Q Prior to that time, who had lived in that house, prior to your daughter living there?
A My mother.
Q And when had she moved out of it?
A Uh, in January of ’85.
Q When did ... Was she the last person to live in it?
A (Witness indicates “Yes”.)
Q No one was it from January of ’85 through—
A Until ...
Q —October of ’86?
A Right.
Q So at the time of this hurricane, no one (1) was living in it?
A No, no one.

Thus, the evidence supports the occupancy clause. In Mintz v. Jefferson Ins. Co. of New York, 537 So.2d 1241 (La.App. 4 Cir.1989), our brethren of the Fourth Circuit held that insureds could not recover for fire damage to a building that was vacant pursuant to a clause in the fire insurance policy that precluded coverage when the building was unoccupied or vacant for a certain period of time.

We pretermit any discussion of other issues as this is dispositive of the case.

We therefore reverse the judgment of the trial court. We find that coverage was precluded based on a condition precedent under the standard provisions of the contract which suspended insurance when the insured premises was vacant for more than 60 days.

Costs of this appeal are assessed to the plaintiff-appellee.

REVERSED.

DOMENGEAUX, C.J., and SAUNDERS, J., dissent and assign reasons.

DOMENGEAUX, Chief Judge,

Dissenting.

I disagree with the majority’s option to decide this case based on the defendant’s alternative argument, for the following reasons:

1) Occupancy in such a policy is an affirmative defense and must be specifically pleaded.

2) Even though plaintiff, upon cross, stated that no one lived in the house at the time of the fire and subsequent damages, an affirmative defense is a new matter not covered by the petition and which will defeat plaintiffs demands on the merits. The purpose of requiring a special pleading of an affirmative defense is to give fair notice and prevent surprise.

3) I do not consider, under the scenario presented, that the pleadings were enlarged.

The claim in this case is under a run of the mill fire and extended coverage insurance policy. The defendant insurance company at no time ever denied the claim based on non-occupancy. In fact, the defendant insurer actually issued a check to plaintiff for the approximate sum of $1,300, and the only reason that the case was not resolved then was because plaintiff felt that the damages were in a greater amount.

Instead of resolving this case based on defendant’s alternative claim, I feel that this case, purely and simply, should be decided on the fact that “occupancy” in such a policy is an affirmative defense and must be specifically pleaded. Non-occupancy is an exclusion in the policy. An exclusion in an insurance policy is an affirmative defense and must be specifically pleaded. Nippert v. Baton Rouge Railcar Services, 526 So.2d 824 (La.App. 1st Cir.1988), writ denied, 530 So.2d 84, 530 So.2d 87, 530 So.2d 91 (La.1988); Mashburn Agency, Inc. v. Universal Engineering & Supply, Inc., 451 So.2d 113 (La.App. 3d Cir.1984); Griffin v. Schwegmann Brothers Giant Supermarkets, 542 So.2d 710 (La.App. 4th Cir.1989); Willie v. American Casualty Company, 547 So.2d 1075 (La.App. 1st Cir. 1989), writ granted and remanded on other grounds, 553 So.2d 467 (La.1989), on remand, 576 So.2d 1023 (La.App. 1st Cir. 1991), writ denied, 584 So.2d 678 (La.1991).

An affirmative defense is a new matter not covered by the petition.

The purpose of requiring special pleading of affirmative defenses is to give fair notice and prevent surprise. An affirmative defense shall be specifically pleaded in the answer, La.C.C.P. Art. 1005.

I would affirm plaintiffs award of $3,500, plus attorney’s fees.

I respectfully dissent.

SAUNDERS, Judge,

dissenting.

I agree with Judge Domengeaux that non-occupancy is an affirmative defense which must be specifically pled and, since the defendant did not plead this affirmative defense, it should not be considered by this court on appeal. I would note further that LSA-C.C.P. art. 1154 is not applicable to the present case because the issue of non-occupancy was not “tried by express or implied consent of the parties.” Indeed, when the plaintiff tried to address this issue, the court below did not allow the question nor did it allow plaintiff to introduce evidence on the issue of non-occupancy, ruling that this issue was not before the court. It seems clear that this issue which was not pled by the defendant, was also not tried either “expressly” or “impliedly” and, thus, should not form the basis of a reversal.

I respectfully dissent.  