N.C.P.I.—Civil 910.20

NOTE WELL: This instruction may be used in any case

where the insurance company has alleged and offered

evidence that the hazard of fire was materially

increased by means within the control of the insured,

including cases where the evidence tends to show that

the insured intentionally burned his own property.

However, if the company has actually alleged

intentional burning, N.C.P.I.-Civil 910.25 is

recommended.

The (state number) issue reads:

"Did the burning of the [plaintiff('s)(s')] [defendant('s)(s')]1 (specify

property) occur while the hazard of fire was materially increased by

means within the control or knowledge of the [plaintiff(s)]

[defendant(s)]?"2

The policy of insurance in this case contains the following

provision: "[t]his Company shall not be liable for loss occurring while the

hazard is increased by any means within the control or knowledge of the

insured."3

On this issue, the burden of proof is on the [plaintiff] [defendant]

insurance company.4 This means that the [plaintiff] [defendant]

insurance company must prove, by the greater weight of the evidence,

two things:

First, that the damage by fire occurred at a time when the hazard

of fire5 had been materially increased.6

The law provides that an increase in the hazard occurs when a new

use or condition, or a physical change, not existing when the policy was

issued, substantially and materially increases the chance that the

property will be destroyed or damaged by fire.

And Second, that this new use or condition or physical change

which increased the hazard of fire was within the control or knowledge of

the [plaintiff(s)][defendant(s)].

The law provides that a showing of mere negligence, or lack of

ordinary care, on the part of the [plaintiff(s)] [defendant(s)] would not be

sufficient to relieve the [plaintiff] [defendant] insurance company of its

obligation to pay under the policy.7 A person may properly purchase

insurance to protect himself even against his own negligence.8 If,

however, (1) there was a physical change from the time the policy

became effective, and (2) that change was within the [plaintiff('s)(s')]

[defendant('s)(s')] knowledge or control, and (3) such change so

materially increased the hazard of fire as to make it readily apparent to a

person of ordinary intelligence that the chance of loss by fire was thereby

increased, then the [plaintiff(s)] [defendant(s)] would not be entitled to

recover on the insurance policy for any loss that occurred while such

condition existed.9

(If a charge on circumstantial evidence is desired, use N.C.P.I.-

Civil 101.45.)

Finally, as to the (state number) issue on which the [plaintiff]

[defendant] insurance company has the burden of proof, if you find, by

the greater weight of the evidence, that the burning of the [plaintiff('s)

(s')] [defendant('s)(s')] (describe property) occurred while the hazard of

fire was materially increased by means within the control or knowledge of

the [plaintiff(s)] [defendant(s)], then it would be your duty to answer this

issue “Yes” in favor of the [plaintiff] [defendant] insurance company. If,

on the other hand, you fail to so find, then it would be your duty to

answer this issue “No” in favor of the [plaintiff(s)] [defendant(s)].