concluding, as matter of public policy, that policy against allowing an arsonist to benefit from fraud "does not overcome an innocent spouse's contractual right to recover her or his one-half interest in the policy benefits"
How later courts described this case
- concluding, as matter of public policy, that policy against allowing an arsonist to benefit from fraud "does not overcome an innocent spouse's contractual right to recover her or his one-half interest in the policy benefits"
- noting that Texas's longstanding public policy against allowing insured to benefit from fraud does not prevent innocent spouse from recovering her share of policy benefits
- noting that in an arson case, an innocent spouse may have a contractual right to recover his or her one-half interest in the policy benefits
- noting that party asserting affirmative defense of fraud had burden to plead, prove, and secure findings to sustain defensive plea of fraud
Written by the judges who cited it.
The opinion
Justice HECHT,
concurring in the judgment.
By not addressing Texas Farmers Insurance Co.’s contractual defense based on the concealment-fraud provision of its policy, the Court is left to deciding difficult public policy issues as if they governed coverage and the provision did not exist. Public policy does not preclude, but also does not require, paying an arsonist’s spouse for her share of destroyed community property. Farmers’ contractual defense would deny Murphy recovery as a simple matter of contract law. The defense makes the Court’s public policy decision irrelevant in almost any case in which the defense is raised. But Farmers disavowed a contractual defense in the district court and did not mention it in the court of appeals. Although Farmers pleaded the defense in the district court and argued it in this Court, and although the facts concerning its applicability are undisputed, the Court properly concludes that the defense should not be urged in this Court for the first time.
Then, in a sharp about-face, the Court proceeds without hesitation to allow Daisy Murphy to recover based on an argument she has never made — not in the lower courts and not here — that she would be entitled to benefits regardless of whether she and her former husband had partitioned their community estate in their divorce. She has consistently rested her claim on her partition agreement, and the Court agrees that she can prevail on this argument. Whether a partition agreement is always necessary for recovery is an issue that should be left for another case— one in which someone actually raises it.
The Court refuses to consider an argument Farmers has actually made, but only intermittently, even though the argument will prevail in almost any other ease, yet the Court rests its decision on an argument Murphy has never thought of making, even though Murphy can prevail in this case unassisted. By going out of its way to treat the parties this disparately, the Court invites the criticism that it has not acted fairly.
Murphy is entitled to recover — on the argument she makes. I therefore concur only in the Court’s judgment.