Generally, the insurer must rely on circumstantial evidence to prove the defense. See Polasek, 847 S.W.2d at 282; Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635, 638 (Tex.Civ.App.-Beaumont 1976, writ ref'd n.r.e.). The crime of arson, being in defiance of law, is ordinarily conceived in secrecy and executed in such a manner as to avoid detection and exposure; and proof of such an unlawful enterprise must, in the very nature of things, be made by circumstances, and every circumstance which tends to cast light upon the incident is legitimate and proper.
Evidence of prior acts is relevant to Dailey's motive to set the fire or cause the fire to be set. See TEX. R. EVID. 404(b)(2) (permissible purposes for evidence of crimes, wrongs, or other acts include motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident); see alsoGarrett v. Standard Fire Ins. Co. of Hartford, Conn. , 541 S.W.2d 635, 638 (Tex. Civ. App.—Beaumont 1976, writ ref'd n.r.e.) (in an arson case, "every circumstance which tends to cast light upon the incident is legitimate and proper"). This is particularly true given that circumstantial evidence will likely be necessary for the factfinder to determine whether Dailey planned the fire for purposes of committing insurance fraud.
It has long been the law in this State that arson may be established by circumstantial evidence. See, e.g., Garrett v. Standard Fire Insurance Company of Hartford, Connecticut, 541 S.W.2d 635, 638 (Tex.Civ.App.-Beaumont 1976, writ ref'd n.r.e.), where the court said: The crime of arson, being in defiance of law, is ordinarily conceived in secrecy and executed in such a manner as to avoid detection and exposure; and proof of such an unlawful enterprise must, in the very nature of things, be made by circumstances, and every circumstance which tends to cast light upon the incident is legitimate and proper.
Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). St. Paul correctly contends that arson may be proved by circumstantial evidence because it is ordinarily conceived and executed in secrecy, citing Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.), and Payne v. Hartford Fire Ins. Co., 409 S.W.2d 591 (Tex.Civ.App. — Beaumont 1966, writ ref'd n.r.e.). It also correctly states that its burden of proof at trial was not to show by an absolute certainty but rather by a preponderance of the evidence that the Lukers intentionally set the fire. Bufkin v. Texas Farm Bureau Mutual Ins. Co., 658 S.W.2d 317 (Tex.App. — Tyler 1983, no writ); Payne, 409 S.W.2d at 595.