Nationwide Mut. Fire Ins. Co. v. Bryson

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v.
Elaine BRYSON

CA 97-395                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & IV
               Opinion delivered February 18, 1998


1.   Civil procedure -- granting of new trial -- trial court has
     limited discretion. -- Rule 59(a)(6) of the Arkansas Rules of
     Civil Procedure provides that a new trial may be granted to
     all or any of the parties on all or part of the issues on the
     application of the party aggrieved when the verdict or
     decision is clearly against the preponderance of the evidence;
     the trial court has limited discretion in the matter, as it
     may not substitute its view of the evidence for the jury's
     except when the verdict is clearly against the preponderance 
     of the evidence.

2.   New trial -- granting of motion -- factors on review. -- The
     test the appellate court applies in reviewing the trial
     court's granting of a motion for new trial is whether the
     judge abused his discretion; a showing of abuse of discretion
     is more difficult when a new trial has been granted because
     the party opposing the motion will have another opportunity to
     prevail; this standard requires a showing of clear or manifest
     abuse of discretion by acting improvidently or thoughtlessly
     without due consideration. 


3.   Evidence -- arson -- may be proved circumstantially. --     
     The deliberate burning of an insured building by its owner is
     usually accomplished alone and in secret; any material fact in
     issue, however, may be established by circumstantial evidence
     even though the testimony of other witnesses may be
     undisputed; the fact that evidence is circumstantial does not
     render it insubstantial as our law makes no distinction
     between direct evidence of a fact and circumstances from which
     it might be inferred; the circumstances may be such that
     different minds can reasonably draw different conclusions from
     them without resort to speculation; where there are facts and
     circumstances in evidence from which reasonable minds might
     reach different conclusions without resort to speculation the
     matter is an issue of fact that must be submitted to the jury
     for its determination. 

4.   Insurance -- showing of arson does not automatically relieve
     insurer from liability under fire policy -- must prove insured
     set fire or caused house to be burned. -- A mere showing of
     arson does not automatically relieve the insurer from
     liability under a fire policy excluding loss caused by the
     insured; it is also necessary to prove by direct or
     circumstantial evidence that the insured set the fire or
     caused the house to be burned; circumstantial evidence that is
     sufficient to warrant a jury in drawing a reasonable inference
     that the insured was the author of a fire is sufficient to
     sustain a verdict in favor of the insurer. 

5.   Evidence -- arson -- admissible evidence. -- Where the
     deliberate burning of an insured building is in issue, any
     evidence tending to show a motive or opportunity is
     admissible, and any material fact in issue may be established
     by circumstantial evidence from which it can be inferred. 

6.   New trial -- trial judge abused discretion in setting aside
     verdict and setting case for new trial -- case reversed. --
     Based on the record, the jury could find without clear error
     that appellee had a motive and an opportunity to burn the
     house; given the high cost of repairs that would have been
     necessary to fix the damaged floors, and appellee's lack of
     financial resources, the jury could likewise infer that
     appellee, or someone at her direction, intentionally set the
     fire; therefore, the trial judge abused his discretion in
     setting aside the verdict for appellant and setting the case
     for a new trial; the case was reversed.


     Appeal from Crawford Circuit Court; Don R. Langston, Judge;
reversed.
     Huckabay, Munson, Rowlett & Tilley, P.A., by:  Jim Tilley and
Julia L. Busfield, for appellant.
     Robert S. Blatt, for appellee.
     John Mauzy Pittman, Judge.  
     Nationwide Mutual Fire Insurance Company has appealed from an
order granting a new trial in appellee Elaine Brysonþs action to
recover on a fire insurance policy issued by appellant.  At trial,
appellant defended appelleeþs claim on the ground that the property
had burned as a result of arson caused by appellee or by someone on
her behalf.  The jury returned a verdict for appellant.  The
circuit judge set the verdict aside as clearly against the
preponderance of the evidence.  Because we agree with appellant
that the circuit judge abused his discretion, we reverse.
     From about November 1994 until February 1996, appellant rented
a house she owned in Van Buren to Leslie and Roland Fohren. 
Appellee had a fire insurance policy with appellant in the amount
of $44,000 on the property.  The policy excluded any intentional
loss arising out of any act committed by or at the direction of
appellee with the intent to cause a loss.  The policy also did not
protect against loss caused by constant water seepage over a period
of weeks, months, or years.  On February 22, 1996, the Fohrens
moved out of the house, after having notified appellee a week or so
before that they were leaving.  Early the next morning, the house
burned.  Appellantþs investigation of the fire revealed that traces
of an accelerant were present in the house and that the burn
patterns indicated arson.  The investigation also showed that,
before the fire, a substantial portion of the flooring had needed
to be replaced because of rot caused by water leakage.  When
appellant denied appelleeþs claim, appellee sued appellant.
     Appellant stipulated that the policy was in full effect at the
time of the fire and that the house was a total loss.  Appellee did
not dispute the overwhelming evidence that the fire had been caused
by arson; instead, she contended that there was no evidence linking
her to the fire.  
     Appellant presented extensive evidence that the fire was
caused by a flammable liquid placed at floor level, which was
ignited.  Appellant also proved that, before the fire, the house
had needed substantial repairs to the flooring.  It also introduced
evidence that appellee had knowledge of this extensive water damage
and that she was also aware that the fire insurance on the dwelling
was still in effect.  Appellant also presented evidence that
appellee and Kenneth Storment had access to the house immediately
prior to the fire. 
     Appellee especially disputed the evidence introduced by
appellant that she had knowledge before the fire of the extent of
the damage to the flooring.  Appellee testified that, after she
knew that the Fohrens were vacating the premises, she made plans to
rent the house to another individual.  She denied knowing that the
floors were in bad shape, although she admitted that she had
purchased a new water heater for the house, which Mr. Fohren had
installed in December of 1995 after the Fohrens had notified her
that the hot water tank was leaking.  She admitted that she had
known that the kitchen floor was mushy around the leaking hot water
tank but denied knowing how big the problem was.  She denied
knowing that Mr. Fohren had attempted to brace the floor and stated
that the Fohrens had never told her about any other damage to it. 
She stated that she had not known that it would take between
$15,000 and $30,000 to repair the house and denied having made
statements to that effect.  
     Appellee testified that she and Kenneth Storment, who lived
with her, were awakened at 2:00 a.m. on February 23, 1996, by a
telephone call from her sister, who said that the house was on
fire.  Appellee stated that, after staying at the scene while the
firemen put out the fire, she went home to get the insurance policy
to be sure that it was in effect; she knew it was about time for a
premium notice to be sent out.  She stated that, after she found
the policy and saw that it had expired on January 23, 1996, she
cried.  She denied having received a premium notice.  Appellee
testified that, on the afternoon of February 23, she asked Ms.
Fohren if she had received any premium notices from appellant; Ms.
Fohren then brought her an envelope from appellant which contained
a notice of cancellation dated February 20 which had been mailed to
the rental house.  According to this notice, the policy would be
canceled at 12:01 a.m. on March 5 for nonpayment of the premium. 
In response to the question whether the Fohrens, at appelleeþs
request, had left the keys in the house on the afternoon of the
22nd, appellee testified that Ms. Fohren had brought her the keys
at the same time she brought the cancellation notice. 
     Appellee also testified that she is the sole owner of the
house and had paid off the mortgage long ago.  Appellee said that,
at the time of the fire, she was not working; her income consisted
of $275 per month from the rental of a mobile home, $400 per month
for rental of the house that burned, and $500 per month rent from
Mr. Storment.  Explaining their relationship, appellee stated that,
although Mr. Storment is a married man, he has rented a room from
her for almost twenty years.  She stated that, if she had known
that the house had needed such extensive repairs, she would have
had to take out a mortgage on the house to pay for them.  Appellee
testified further that, at her request, Mr. Storment had gone to
the house on the afternoon of February 22 to see if the Fohrens had
completed the move. 
     Kenneth Storment testified that he went by the house the
afternoon before it burned because appellee had asked him to see if
the renters had moved out.  He stated that, when he arrived there,
the garage door was up and the front door was unlocked; no one
answered his call, knock, or doorbell ring.  When no one answered
him, he said, he opened the screen door and walked through the
house and the garage.  No one was in the house, he stated, although
there were some items remaining in the garage.  He testified that
he had picked up a new hot water tank for the house but did not
know that the flooring was seriously damaged.  He stated that he
did not have a key to the house.
     Reverend Claude Blount, who lives next door to the house that
burned, testified that he noticed that the house was on fire at
about 1:00 in the morning.  He testified that he did not know that
the Fohrens had moved and was concerned that they might be inside
the house.  He stated that, when he attempted to alert the Fohrens,
he noticed that the front door was closed, none of the windows were
open, and the garage door was down.  
     Appellee asserted that, at the time of the fire, she did not
even know if she had insurance on the house.  Richard Russell
Organ, an insurance agent for appellant, testified that appellee
had requested that all insurance information continue to be sent to
the house that burned.  He stated that, although the original
policy period was from January 23, 1995, to January 23, 1996,
appellant had extended the policy because it erroneously had sent
return envelopes with the wrong lockbox number to policy holders in
this geographical area; therefore, a lot of payments were sent to
the wrong address.  He stated that, when appellant became aware of
the error, all policy holders in this geographical area were given
an extension of their coverage, regardless of whether their money
had been received, until a date in March; this notice was prepared
on February 20, 1996.  
     Leslie Fohren testified that she had realized there was a
water leak problem when one end of their couch started falling
through the floor.  She stated that she had brought this to
appelleeþs attention and had called her several times to inform her
that they heard water running.  According to Ms. Fohren, appellee
and Mr. Storment told the Fohrens how to cut a hole in the floor
and to repair the sub-floor.  She stated that her husband had done
this work.  She was clear that appellee and Mr. Storment had come
to the house and viewed the damage to the floor and, in fact, had
brought tools over to assist in the repairs.  Ms. Fohren stated
that the new water heater also leaked.  According to Ms. Fohren,
when they started moving out, appellee came over and took another
look at the floor in the front room; when appellee saw that the new
water heater was also leaking, she got mad þand said that didnþt
[Mr. Fohren] know how to do anything right, and she didnþt know
anyone so stupid, and that heþd better not ever come back over on
her property, and that she was going to drive up and down the road
every fifteen to twenty minutes, and if heþs out there, sheþs going
to stop and shoot him.þ  In response to the question whether
appellee said anything about how much it would cost to fix the
house, Ms. Fohren replied:  þYes, she said it was around twenty to
thirty thousand dollars to repair it.þ  With regard to the keys,
Ms. Fohren stated that, when she had taken some keys to appellee,
appellee had instructed her to leave the duplicate keys in the
possession of her husband and children on the kitchen counter and
to leave the door unlocked.  Therefore, she stated, on the
afternoon of February 22, the keys were at the house and the door
was unlocked.  She denied giving the keys to appellee on the day
after the fire.  
     Regarding appelleeþs notice of the policyþs cancellation on
March 5, Ms. Fohren testified that she had brought the notice of
cancellation to appellee the day after the fire and that she had
also given appellee some correspondence from appellant a month or
two before that.
     Roland Fohren affirmed that he had installed the new water
heater that appellee and Mr. Storment had brought over and that he
had attempted to repair the floor and sub-floor.  He stated that he
cut away some rotted flooring in the living room on the other side
of the wall by the water heater; the floor joists, however, were
rotten so far back that he could not properly replace them.  The
only thing he could do, he said, was to put a patch over the floor. 
He stated that there were gaps between the floor and the walls in
the kitchen and the living room.  He also testified that appellee
and Mr. Storment had brought tools over and that appellee had seen
the hole he had cut in the floor. 
     Joe Free, a fire and water restoration contractor, testified
that he had prepared an estimate of $14,313.94 in repairs that
would have been necessary to repair only the preexisting water
damage. 
     At the conclusion of the trial, the jury returned a verdict in
favor of appellant.  After judgment on the verdict was entered,
appellee moved for a new trial pursuant to Ark. R. Civ. P.
59(a)(6).  In her accompanying brief, appellee did not deny that
the house had burned by the use of accelerants or that the fire was
not accidental.  Appellee simply argued that there was no evidence
in the record that she, or someone at her direction, had burned the
house.  The circuit judge agreed and, in his order granting a new
trial, stated:
          2.  The [appellant], insuror, proved by a
     preponderance of the evidence that the fire that burned
     the [appellee], insuredþs, house was intentionally set by
     someone, or was arson and was of an incendiary nature by
     use of an accelerant.  In fact, the evidence of an
     intentionally set fire to burn the house was
     overwhelming.

          3.  The [appellant], insuror, has failed to prove by
     a preponderance of the circumstantial or direct evidence
     that the [appellee], insured, set fire or caused the
     house to be burned.  The only credible evidence linking
     the [appellee] to the fire was that she was the only
     person to have a financial interest in the burned rent
     house and would be the only person to benefit or suffer
     damages if the house burned.  This is not enough direct
     or circumstantial evidence to prove this element.

     Appellant argues on appeal that the circuit judge abused his
discretion in setting aside the jury verdict and in granting
appelleeþs motion for new trial.  Rule 59(a)(6) of the Arkansas
Rules of Civil Procedure provides that a new trial may be granted
to all or any of the parties on all or part of the issues on the
application of the party aggrieved when the verdict or decision is
clearly against the preponderance of the evidence.  While the trial
court has some discretion in setting aside a jury verdict, there is
no longer the broad discretion that the supreme court formerly
recognized.  Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). 
The trial court has limited discretion in the matter, as it may not
substitute its view of the evidence for the juryþs except when the
verdict is clearly against the preponderance of the evidence. 
Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996); see
Collins v. Treadwell, 54 Ark. App. 100, 923 S.W.2d 882 (1996).  The
test this court applies in reviewing the trial court's granting of
a motion for new trial is whether the judge abused his discretion;
a showing of abuse of discretion is more difficult when a new trial
has been granted because the party opposing the motion will have
another opportunity to prevail.  Young v. Honeycutt, supra;
Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994).  The
supreme court has described this standard as requiring a showing of
þclearþ or þmanifestþ abuse of discretion by acting improvidently
or thoughtlessly without due consideration.  See Young v.
Honeycutt, supra; Razorback Cab of Fort Smith, Inc. v. Martin, 313
Ark. 445, 856 S.W.2d 2 (1993).
     Appellant admits that a mere showing of arson does not
automatically relieve the insurer from liability under a fire
policy excluding loss caused by the insured but points out that the
insurer may prove that the insured set the fire or caused the house
to be burned by circumstantial evidence.  Citing Haynes v. Farm
Bureau Mutual Insurance Co. of Arkansas, Inc., 11 Ark. App. 289,
669 S.W.2d 511 (1984), appellant contends that the appellate courts
of Arkansas have declared that circumstantial evidence that is
sufficient to warrant a jury in drawing a reasonable inference that
the insured was the author of a fire is sufficient to sustain a
verdict in favor of the insurer.  In that case, we affirmed the
circuit courtþs refusal to grant a judgment notwithstanding the
verdict.  Margie Haynes and Clayton Haynes were divorced in 1979
and, by the terms of their court-approved property settlement
agreement, Clayton was obligated to convey his interest in their
former residence to Margie free of a $90,000 mortgage indebtedness. 
After he failed to do so, contempt proceedings were initiated.  In
July of 1981, the dwelling was totally destroyed in a fire that all
parties conceded was of incendiary origin.  Farm Bureau, which had
in force a fire insurance policy in Clayton Haynesþs name in the
amount of $103,000, denied liability on the ground that the fire
was the result of Claytonþs unlawful acts either in setting the
fire or causing it to be set.  The jury found that the fire loss
had resulted from Claytonþs unlawful acts.  
     The Hayneses appealed from the judgment entered in favor of
Farm Bureau and argued that the trial court erred in denying their
motion for judgment notwithstanding the verdict.  We stated:
          There are ordinarily no eye witnesses to an act of
     arson because the deliberate burning of an insured
     building by its owner is usually accomplished alone and
     in secret.  Any material fact in issue, however, may be
     established by circumstantial evidence even though the
     testimony of other witnesses may be undisputed.  The fact
     that evidence is circumstantial does not render it
     insubstantial as our law makes no distinction between
     direct evidence of a fact and circumstances from which it
     might be inferred.  The circumstances may be such that
     different minds can reasonably draw different conclusions
     from them without resort to speculation.  Where there are
     facts and circumstances in evidence from which reasonable
     minds might reach different conclusions without resort to
     speculation the matter is an issue of fact which must be
     submitted to the jury for its determination.  Farmers
     Ins. Exchange v. Staples, 8 Ark. App. 224, 650 S.W.2d 244
     (1983).

          We agree that a mere showing of arson does not
     automatically relieve the insurer from liability under a
     fire policy excluding loss caused by the insured.  It is
     also necessary to prove by direct or circumstantial
     evidence that the insured set the fire or caused the
     house to be burned.  Our court on many occasions has
     declared that circumstantial evidence which is sufficient
     to warrant a jury in drawing a reasonable inference that
     the insured was the author of a fire is sufficient to
     sustain a verdict in favor of the insurer.  Rankin v.
     Nat'l Lib. Ins. Co. of America, 188 Ark. 195, 65 S.W.2d 17 (1933).

11 Ark. App. at 292, 669 S.W.2d  at 513.
     We then reviewed the evidence demonstrating Claytonþs motive
for burning the house:
     In 1979 Clayton Haynes had obligated himself in a
     property settlement approved and enforced by the chancery
     court to convey this dwelling to Margie free of the
     $90,000 mortgage by January 1, 1980.  He failed to
     discharge the indebtedness by that date or to convey the
     property to her.  It was shown that he did not have
     sufficient cash to liquidate the mortgage as he was then
     having þcash flow problems.þ  Contempt proceedings were
     instituted against him but an agreed extension of time
     until August 1, 1981 was set for his compliance.

          Under the terms of the divorce settlement Clayton
     was obligated to maintain insurance on the premises.  Six
     or seven months before the fire he directed the insurance
     agent to issue the policy in his name only.  This
     coverage was cancelled on or about the 1st of July, 1981,
     and from that date until the night before the fire on
     July 21st there was no insurance coverage on the house. 
     Although Clayton denied that he had knowledge of this
     cancellation, there was testimony from an employee of the
     insurance agency that Clayton was previously aware of the
     cancellation and came to her house on July 20th, the
     night before the fire, to give her a check in order to
     reinstate the policy.  At the time of the fire Clayton
     had had only nine days remaining in which to liquidate a
     $90,000 mortgage on the house and he did not have the
     money to accomplish it because he had "cash flow
     problems."  There was outstanding a court order for him
     to appear and show cause why he had not done so.  A jury
     could easily infer that he had a motive for the burning
     of the house and there is nothing in the record to
     disclose that anyone else did.  Westchester Fire Ins. Co.
     v. Tidwell, 199 Ark. 621, 135 S.W.2d 842 (1940).

11 Ark. App. at 292-93, 669 S.W.2d  at 514.
     We also discussed Claytonþs opportunity to burn the house:
          It was also established that the fire was first
     observed around 11:00 p.m. on June 21st.  Haynes admitted
     that he had been at the house during the day to leave
     Margie's car there but had left before noon and had not
     returned.  He stated that he had gone from there to
     attend a wedding in Texas.  There was evidence that
     although Clayton went to Texas he had told people that he
     was going to Florida because he didn't want Margie to
     know where he was.  At the time of the fire, although
     Margie was in possession of the house, Clayton had a key
     and had complete access to the house and went there
     frequently.  Margie was attending school in Bastrop,
     Louisiana, and staying with her friends there during the
     week and their daughter was away at school in another
     state, leaving the house empty.  Although Clayton offered
     evidence tending to prove that he was not in the State of
     Arkansas at the time the fire was first discovered, the
     jury was not required to accept that evidence if it did
     not find it credible.  There were a number of things in
     the testimony about Clayton's trip to Texas which might
     have easily caused the jury to question the complete
     veracity or purpose of this testimony.  Our court has
     recognized that a trier of fact may know that an arsonist
     need not necessarily be personally present at the time
     the flash of the fire is observed because there are
     methods by which one can time the origin of an incendiary
     fire.  Garmon v. The Home Ins. Co. of New York, 197 Ark.
     1102, 126 S.W.2d 621 (1939).

11 Ark. App. at 293-94, 669 S.W.2d  at 514.
     As we stated in Farmers Insurance Exchange v. Staples, 8 Ark.
App. 224, 650 S.W.2d 244 (1983), in a case such as this, where the
deliberate burning of an insured building is in issue, any evidence
tending to show a motive or opportunity is admissible, and any
material fact in issue may be established by circumstantial
evidence from which it can be inferred.  Accord Thomas v. Allstate
Ins. Co., 27 Ark. App. 27, 766 S.W.2d 31 (1989).
     In our view, the case before us is analogous to Haynes v. Farm
Bureau.  It is true that, in Haynes, the trial judge did not grant
the judgment notwithstanding the verdict; here, the trial judge set
the verdict aside and granted appellee a new trial.  We are
cognizant that on appellate review in a case such as this, we only
reverse if the trial judge abused his discretion.  Nevertheless,
the evidence that the jury heard in Haynes was no less compelling
than that before the jury in this case.  According to appelleeþs
own testimony, appellee did not worry that she had no insurance
coverage on the house until after the fire, when she looked at the
policy.  The jury obviously believed the testimony of Mr. and Mrs.
Fohren as to appelleeþs knowledge of the nature and extent of the
water damage to the houseþs floors.  Additionally, it is not
disputed that Mr. Storment, who has lived with appellee for
approximately twenty years, was in the house on the afternoon of
the 22nd or that, at the time of the fire, the tenants had moved
out.  Although appellee testified that she had made plans to rent
the property to another individual, the jury was not required to
believe her.  See Myers v. Hobbs, 195 Ark. 1026, 115 S.W.2d 880
(1938).  It is our opinion that, on this record, the jury could
find without clear error that appellee had a motive and an
opportunity to burn the house; given the high cost of repairs that
would have been necessary to fix the damaged floors, and appelleeþs
lack of financial resources, we believe that the jury could
likewise infer that appellee, or someone at her direction,
intentionally set the fire.  We therefore believe that the trial
judge abused his discretion in setting aside the verdict for
appellant and setting the case for a new trial.  
     Reversed.
     Arey, Stroud, and Meads, JJ., agree.
     Neal and Roaf, JJ., dissent.

     Andree Layton Roaf, Judge, dissenting.  I do not agree that the
trial courtþs grant of a new trial was a þclearþ or þmanifestþ
abuse of discretion, see Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), so as to require a reversal of this case.
     For reversal, the majority relies primarily upon Haynes v.
Farm Bureau, 11 Ark. App. 289, 669 S.W.2d 511 (1984), in which this
court affirmed the trial courtþs refusal to grant a judgment
notwithstanding the verdict in an arson case.  The majority finds
the evidence before the jury in Haynes þno less compellingþ than in
Brysonþs case; I must strongly disagree.  Haynes had only nine days
to liquidate a $90,000 debt in order to comply with a court order
to convey his former residence to his ex-wife free of mortgage
indebtedness.  He lacked the ability to do so, and faced contempt
proceedings for his failure.  On the night before the fire, he had
gone to his insurance agentþs home and reinstated insurance
coverage on the house in his name only.  Repairing or even selling
the house was thus not an option available to Haynes.  Here, Mrs.
Bryson owned a house free of indebtedness that needed repairs to
the floor, repairs already commenced by her tenants.  While Mrs.
Bryson perhaps faced some financial pressure, unlike the majority,
I cannot accept that her low-income status so readily translated
into a propensity to commit a serious felony.
     In Thomas v. Allstate Ins. Co., 27 Ark. App. 27, 766 S.W.2d 31
(1989), another case cited by the majority, this court affirmed a
jury verdict in favor of the insurance company where the house was
vacant, was insured for more than double the purchase price paid by
the appellant when he bought it only one year prior to the fire,
the insurance company had denied the appellantþs request to further
increase the amount of coverage, the tenants had moved out a day or
two before the fire at appellantþs request, and appellant had
serious financial difficulties including an I.R.S. lien.  
     I agree with the general principles expressed in our cases
involving arson of an insured building, as stated in the majority
opinion.  It is correct that, where an insured building is
deliberately burned, any evidence þtending to show motive or
opportunityþ is admissible.  Thomas v. Allstate Ins. Co., supra, 
Farmerþs Insurance Exchange v. Staples, 8 Ark. App. 224, 650 S.W.2d 244 (1983). However, admissibility should not be equated with
sufficiency, and it is the sufficiency of the evidence of motive,
not its admissibility, that is at issue here.
     It is also well settled that a jury may infer from
circumstantial evidence that the insured set or caused a fire to be
set.  See Hanyes v. Farm Bureau,  supra.  However, the inference
must be reasonable.  On this issue I agree with the trial court --
the jury could not reasonably infer that Bryson caused the fire
without resorting to speculation and conjecture.
     Clearly, the evidence of Mrs. Brysonþs þmotiveþ is far less
þcompellingþ than the evidence before the jury in Haynes, and pales
in comparison to that in Thomas.  The majority has, perhaps
inadvertently, lowered the threshold in future cases such as
Brysonþs by reversing this case. Instead of strong, compelling
financial incentives coupled with affirmative and questionable
actions by the insured, henceforth, economic status alone will be
sufficient evidence of a property ownerþs motive.  This is
unfortunate, because an insured property owner will almost always
have a þmotiveþ in the form of potential for financial gain when
arson occurs, and will likewise always have the opportunity to set
a fire or cause it to be set.  Rental houses are often in need of
repairs.  High-income and well-to-do property owners will not be
affected by the majorityþs decision to reverse this case.  There
will be no þmotiveþ provided by their income status, and their
claims will continue to be promptly paid.  However, low- and even
moderate-income property owners, particularly owners of rental
property,  may well be branded as arsonists by their insurance
companies for simply owning a home that  needs  modest repairs.
     I respectfully dissent.
     Neal, J., joins.