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BRINKER v. GUIFFRIDA

August 26, 1985

NOEL A. BRINKER
v.
LOUIS O. GUIFFRIDA, Director of the Federal Emergency Management Agency, and the UNITED STATES OF AMERICA



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 Plaintiff's Philadelphia residence was extensively damaged by fire on June 8, 1982. The Fire Marshal's report listed arson as the cause. Plaintiff's residence was insured by the Federal Insurance Administration under a Residential Crime Insurance Policy. Plaintiff sought recovery of the $5,000 policy limits. By letter dated November 10, 1982, plaintiff's claim was denied. Plaintiff thereafter filed this civil action.

 Throughout the latter part of the decade commencing in 1960, many private insurance companies either refused to provide or made it prohibitively expensive for urban property owners to obtain real and personal property insurance. In response, Congress enacted the Housing and Urban Development Act of 1970, Pub. L. No. 91-609, 64 Stat. 1770 (1970). One of the purposes of the statute was "to provide an important new program of direct federal writing of essential property insurance if insurance rates in the private market exceed reasonable rates within the means of homeowners and small businesses." H. Rep. No. 1556, 91st Cong., 2d Sess., reprinted in 1979 U.S. Code Cong. & Ad. News 5582, 5582. The statutory provisions have been codified under 12 U.S.C. § 1749bbb to 1749bbb-21. The statute provides that when the Secretary of Housing and Urban Development (Secretary) determines that crime insurance is not available at affordable rates in a particular state, the Secretary may make such crime insurance available by providing insurance policies directly from the federal government, in accordance with such terms and conditions as the Secretary shall determine. 12 U.S.C. § 1749bbb-10a. "Crime insurance" is defined by statute as insurance against losses resulting from "robbery, burglary, larceny and similar crimes." 12 U.S.C. § 1749bbb-2 (emphasis added).

 Plaintiff, Noel A. Brinker, applied for and was issued a Residential Crime Insurance Policy by the Federal Insurance Administration for plaintiff's residence at 449 West Price Street, Philadelphia, Pennsylvania. *fn1" That policy provided in part as follows:

 
INSURING AGREEMENTS --
 
I. Loss by Burglary and Larceny or Robbery, Including Observed Theft
 
To pay for loss by burglary and larceny incident thereto, or robbery, including observed theft, of all personal property from the premises or in the presence of an insured.
 
To pay for damage to the premises and to the insured property by burglary or larceny incident thereto or robbery, including observed theft, or attempt threat [sic], and for damage to the interior of that portion of any building occupied by the named insured's household at the premises and to the insured property therein or away from the premises by vandalism or malicious mischief which occurs during a burglary or robbery, provided that with respect to damage to the building an insured is the owner thereof or is liable for such damage.
 
With respect to loss occurring at any part of the premises not occupied exclusively by the named insured's household, this insuring agreement applies only to property owned or used by an insured. (emphasis added).

 The applicable regulations set forth in full the precise form for residential crime insurance policies. 44 C.F.R. § 835. The regulations in effect at the time of the issuance of the policy and the time of the alleged loss provided under the "Insuring Agreements" in pertinent part as follows:

 
11. Damage. To pay for damage to the premises and to the insured property by burglary and larceny incident thereto, or robbery, including observed theft, or attempt threat [sic], and for damage to the interior of that portion of any building occupied by the named insured's household at the premises and to the insured property therein or away from the premises by vandalism or malicious mischief: Provided that with respect to damage to the building an insured is the owner thereof or is liable for such damage.

 Defendants, in their reply brief, concede that the federal regulations in effect in June 1982, the time in question here, did not require that vandalism or malicious mischief occur during a burglary or robbery in order ...


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