Lomartira v. American Automobile Insurance Company

• Decision Date: 29 July 1965
• Docket Number: Civ. No. 7295,7296.
• Citation: 245 F. Supp. 124
• Court: U.S. District Court — District of Connecticut
• Parties: Giuseppe LOMARTIRA, Sr., a/k/a Joseph Lomartra, Sr., and Rose Lomartira, a/k/a Rose Lomartra, Plaintiffs, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Defendant. Giuseppe LOMARTIRA, Sr., a/k/a Joseph Lomartra, Sr., and Rose Lomartira, a/k/a Rose Lomartra, Plaintiffs, v. QUEEN INSURANCE COMPANY OF AMERICA, Defendant.

245 F. Supp. 124

Giuseppe LOMARTIRA, Sr., a/k/a Joseph Lomartra, Sr., and Rose Lomartira, a/k/a Rose Lomartra, Plaintiffs, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Defendant.

Giuseppe LOMARTIRA, Sr., a/k/a Joseph Lomartra, Sr., and Rose Lomartira, a/k/a Rose Lomartra, Plaintiffs, v. QUEEN INSURANCE COMPANY OF AMERICA, Defendant.

Civ. Nos. 7295, 7296.

United States District Court D. Connecticut.

July 29, 1965.

Howard F. Zoarski, of Bracken & Zoarski, New Haven, Conn., for plaintiffs.

Wallace W. Brown, and Thomas F. Parker, of Gross, Hyde & Williams, Hartford, Conn., for defendants.

TIMBERS, Chief Judge.

QUESTION PRESENTED

In these companion actions brought to recover a total of $25,000 under three fire insurance policies covering a two-story dwelling in Branford, Connecticut, which was completely destroyed by fires in May 1957, the controlling question, believed to be dispositive of all issues in both cases, is whether misrepresentations, fraud and false swearing at the trial with respect to material facts by the only plaintiff insured who testified voids the policies pursuant to a concealment and fraud provision, identical in each policy, prescribed by Connecticut statute.

After a ten day trial of the consolidated actions to the Court without a jury, the Court holds that the misrepresentations, fraud and false swearing at the trial with respect to material facts by plaintiff Giuseppe Lomartira, Sr. voided each of the policies. Accordingly, the Court orders that judgment enter in favor of defendant, with costs, in each action.

JURISDICTION

Jurisdiction is founded on diversity of citizenship.¹ Plaintiffs are Connecticut citizens.² Defendant American Automobile Insurance Company being a Missouri corporation, is a citizen of that state. Defendant Queen Insurance Company of America, being a New York corporation, is a citizen of that state. The amount in controversy in each action exceeds $3000, exclusive of interest and costs.

FACTS

Relief Sought

In Civil Action No. 7295 plaintiffs seek recovery under two fire insurance policies issued by American Automobile Insurance Company, each in amount of $10,000, as a result of fires which completely destroyed the insured dwelling located in Branford, Connecticut. In Civil Action No. 7296 plaintiffs seek recovery under a fire insurance policy issued by Queen Insurance Company of America in amount of $5,000 covering the same dwelling, as a result of the same fires.

Disputed Issues

At the trial defendants conceded that the policies were in effect at the time of the fires on May 26, 1957 and May 30, 1957, and that the insured two-story dwelling was partially damaged by the first fire and was totally destroyed by the latter fire. For trial purposes, they were treated as one fire and one loss.³

The chief disputed issues at the trial were the valuation of the insured dwelling and, with respect to the two American Automobile Insurance Company policies, the applicability of an "extension of coverage" provision contained therein.⁴

Testimony Of Giuseppe Lomartira, Sr. And His Son

Giuseppe Lomartira, Sr., the only plaintiff present at the trial, testified on direct examination that he purchased the insured property in two installments for a total price of $9,000, paying $4,500 to the owner of one-half interest in the property about four years prior to the fires, and paying the same amount to the owner of the other half interest about two years prior to the fires. (On cross examination Lomartira modified his testimony as to the times the purchases were made, but not as to the amounts paid.⁵)

He then proceeded to recount at length and in detail certain alleged improvements made upon the house, commencing shortly after he purchased the first half interest and completed sometime before the fires in 1957. The improvements he testified were made included installation of running water on the first floor; replacement of window sashes; installation of combination screen and storm windows on all windows in the house; remodelling of a second floor bathroom, including new plumbing fixtures; installation of new electrical wiring and fixtures; replacement of the floors in all the rooms on the second story of the house and in two rooms on the first story with hard oak wood floors; and installation of new gutters.

Lomartira testified that the work on all of these improvements was done by the Russo Roofing Company; that Lomartira had paid Russo over $8,000 for such work; that the payments were in cash and that he had no receipts or other records of his payments; and, in response to a question as to the whereabouts of the Russo Roofing Company, that Russo had died a year or two before the trial.

On cross examination Lomartira reiterated much of his direct testimony with regard to the improvements, adding that the entire work by Russo extended over approximately a three month period.

At the beginning of the seventh day of the trial, after Joseph Lomartira, Jr., son of the plaintiffs, had testified for some time on direct examination, the parties stipulated that the son "would testify on the subject of improvements * * * the same as his father, the plaintiff, has."⁶ At the conclusion of the testimony of Joseph Lomartira, Jr., plaintiffs rested.

Testimony Of Dominick Russo

Defendants thereupon called as their first witness one Dominick Russo. He testified that from 1928 to 1957 he was the sole proprietor of a business known as the Russo Roofing Company, located in New Haven, Connecticut; in 1957 the business was incorporated, retaining the same name. Russo categorically denied that he had ever done any work on the insured property. He testified that he knew Giuseppe Lomartira, Sr.; that he had done some work for him in 1955 — roofing, shingling, exterior painting, and the installation of a front door — all on a one-story dwelling owned by Lomartira (the latter's residence), and not on the two-story insured dwelling destroyed by the fires in May 1957; and that he had received $800 for the work.

Russo testified that he had never done interior work, plumbing, or electrical work for anyone. In response to specific questions, first by defendants' counsel and then by the Court, he flatly denied doing each item of work Lomartira had testified was done by the Russo Roofing Company. Russo also denied ever receiving sums of money aggregating $8,000 from Lomartira. He testified that the only contract he had ever had with Lomartira was that pursuant to which he was paid $800 by Lomartira for the work on the latter's residence.⁷

Finally, Russo testified that there was no other "Russo" working with him in his business; that no one connected with his business had died within the last two or three years; that he was familiar with all roofers in the Branford-New Haven area during at least the last ten years; that none of them was named "Russo"; and that there was no other "Russo Roofing Company" in that area during that period.

Court's Notice To Counsel Regarding Discrepancy Between Testimony Of Lomartira And Russo

At the beginning of the afternoon session of the seventh day of the trial, upon the conclusion of Russo's testimony, the Court addressed counsel in open court as follows:⁸

"THE COURT: I think in all fairness to all persons involved, the Court should make it clear here and now, in the light of testimony by Mr. Russo and of the exhibits which have been marked and produced by him, that the Court regards this as a serious matter, and wholly aside from the issues in this case, I expect a full explanation satisfactory to the Court of what appears to be a very serious discrepancy between the testimony of the plaintiff and of his son on the one hand, and the testimony of Mr. Russo and the records produced by him.

The Court naturally retains an open mind on this until the record is closed, but I simply want to give fair warning to all concerned that unless an explanation satisfactory to the Court is forthcoming, that I intend to take appropriate steps to determine whether there has been any violation of any law applicable to testimony under oath in this Court."

At no time during the remainder of the trial was any explanation whatsoever offered as to the discrepancy between Lomartira's testimony about $8,000 having been paid to Russo for improvements on the insured property and the flatly contradictory evidence produced by Russo. Although plaintiffs did present a rebuttal case and Lomartira was present in the courtroom during plaintiffs' rebuttal case, he was not called as a rebuttal witness and the discrepancy between his direct testimony regarding improvements and Russo's evidence on the same subject was not even touched upon.

DEFENDANTS' MOTIONS TO AMEND ANSWERS TO PLEAD DEFENSE OF MISREPRESENTATIONS, FRAUD AND FALSE SWEARING BY PLAINTIFFS AT TRIAL

On the last day of the trial, at the conclusion of the evidence, defendants orally moved, pursuant to Rule 15(b), Fed.R.Civ.P., to amend their answers to conform to the evidence by pleading as a defense to each action a concealment and fraud provision contained in each of the policies; that provision, included in the policies pursuant to Connecticut law,⁹ is as follows:¹⁰

"Concealment, fraud. This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto."

Defendants claimed, by their motion to amend their answers to conform to the evidence, that plaintiffs, through the testimony at the trial of Giuseppe Lomartira, Sr., were guilty of misrepresentations of material facts with respect to the insured property, and had engaged in fraud and false swearing with relation thereto, thereby voiding each of the three policies in accordance with the concealment and fraud provision set forth...