Second Heer's trial set to begin

A second jury trial in a nearly $1.2 million insurance loss claim is set to begin Feb. 5 in Greene County Circuit Court before the Hon. Henry W. Westbrooke.

The first jury found for the defendant insurance company, United Fire and Casualty Company and against the claim of Warren Davis Properties V LLC, doing business as Heer's. That decision was rendered June 17, 1998, but was set aside by the trial judge, Don Bonacker.

In setting aside a jury verdict, an uncommon occurrence, the judge ruled the verdict was "against the weight of the evidence." Bonacker also ruled that the jury considered the issue of whether the building was vacant at the time water damage occurred. That issue wasn't a part of the pleadings in the case, and so shouldn't have been considered by the jury.

However, during the deliberation of the first trial, the jury kept sending out questions regarding the vacancy issue, according to John Price, Heer's attorney. The Court of Appeals agreed with Bonacker and sent the case back in October 1999 to be set for retrial.

The insurance company stated in its pleading that it shouldn't be responsible for the claim because the building had been vacant for at least 60 days at the time damage was sustained, which would void the policy. Davis's claim is that the insurance company was aware that the building was going to be renovated, and in fact sent down its own agents to inspect the building before the written policy was formally issued.

According to the lawsuit, interior damage to the Heer's building was caused by a sprinkler system. The insurance company claims the damage resulted from frozen pipes. Davis's company says the sprinklers were damaged by vandals. The claim was denied May 17, 1996.

Heer's, a former department store on Park Central Square, has been dormant since it was sold to Warren Davis for $415,000 in 1995.

His company has sued for breach of contract for failure to pay the damage claim amount, plus interest. It also asks for lost profits because of lost use of the building, consequential damages incurred in preventing further deterioration of the building while the claim is pending, and other damages.

A second breach of contract claim arises from oral representations made by the agent, Ollis and Company, that the policy was bound Aug. 2, 1995. The policy was to run until July 1, 1996.

The final count is for vexatious refusal to pay the claim, which carries as a statutory penalty a percentage of the unpaid claim. In this case, the penalty would be $119,237.08, as well as reasonable attorney fees and costs to prosecute the case.

Price estimates the trial will take the entire week.