Lionti v. Lloyd's Ins. Co.

Decision Date07 July 1983
Docket NumberNo. 81-1659,81-1659
Citation709 F.2d 237
Parties13 Fed. R. Evid. Serv. 937 LIONTI, Filippo and Lionti, Carmela, husband and wife, and Route 202 Corporation trading as Lionti's Villa v. LLOYD'S INSURANCE COMPANY and Dominion Insurance Company, Berkley Charles Berkley-Portman, Excess Insurance Company, Bellefonte Insurance Company, and Dominion Insurance Company, Edinburgh, Scotland. Appeal of Filippo LIONTI and Carmela Lionti, husband and wife, Route 202 Corporation t/a Lionti's Villa and/or The Italian Villa.
CourtU.S. Court of Appeals — Third Circuit

Nelson J. Sack (argued), Media, Pa., for appellants.

David R. Strawbridge (argued), Cozen, Begier & O'Connor, Philadelphia, Pa., for appellees.

Before HUNTER and GARTH, Circuit Judges, and STERN, District Judge. *

OPINION OF THE COURT

GARTH, Circuit Judge.

This appeal presents for our review two claimed evidentiary errors which occurred during a thirteen-day trial. The plaintiffs Filippo and Carmela Lionti ("Lionti") contend that these two alleged errors should result in the grant of a new trial. We cannot agree.

On September 20, 1978, The Italian Villa, a restaurant and bar owned by Lionti, burned to the ground. Lionti brought this action against his insurer 1 after the insurer disallowed his claim for policy proceeds. The insurer refused Lionti's claim on the ground that Lionti set or procured the setting of the fire. The jury returned a verdict in favor of the insurance company. Lionti appeals from an order of the district court denying his motion for a new trial. 2 Because we find no error affecting a substantial right of the parties, we affirm.

I.

The Italian Villa was a single story stone structure with a full basement containing a restaurant and bar. At roughly 5:00 a.m. on September 20, 1978, a violent explosion erupted in the building, shattering windows in a house nearby and catapulting debris over 100 feet away.

On November 16, Lionti submitted proofs of loss to his insurance company. These proofs of loss asserted losses of $266,606 for the building itself, $114,256 for its contents, $83,850 for interruptions of business income, and affirmed that the origin of the fire was "unknown to assured." Lionti initiated this action on June 6, 1979, claiming that the insurer had not reimbursed Lionti for the losses sustained, although the insurer had paid Lionti's mortgagee, the First Mortgage Company of Pennsylvania, $180,000 under the policy's loss-payable clause. On September 21 the insurer counterclaimed against Lionti for $180,000, the loss paid to First Mortgage, as subrogees of First Mortgage's rights. The case proceeded to trial on February 13, 1980.

A.

Evidence adduced at trial was overwhelming that the September 20 fire had been set intentionally. Firemen entering the structure found gasoline vapors in the basement so strong that they were unable to remain in the building. Burn patterns on the floor of the restaurant indicated that the fire had been spread by a flammable liquid. Inside the restaurant's kitchen door lay an extension cord plugged into a wall outlet and terminating in an electric charcoal lighter; lying beneath the charcoal lighter were two plastic containers smelling of gasoline. Firefighters removed from the building these two containers and three others; laboratory tests proved at least four of these five containers to contain gasoline. Carpeting and debris throughout the restaurant were also impregnated with gasoline. In the opinion of several experts, the magnitude of the explosion, the residue of gasoline and location of gasoline containers, and the presence of an electric starter coil left little doubt that the fire was of incendiary origin.

Evidence that Lionti was responsible for the fire was also compelling, although largely circumstantial. The evidence of Lionti's complicity fell into three categories.

First, testimony indicated that the Italian Villa was financially troubled during the months before the fire. Sales during the month of August, 1978, were $16,324, substantially less than the August 1977 sales of $25,586. Sales during the nine months preceding the fire were only $133,000, again considerably less than the prior nine months' sales of $217,000. Based on Lionti's corporate 1978 tax return, an expert estimated Lionti's yearly expenses at $84,000; Lionti had available cash, however, of only $58,000, resulting in a cash flow shortage of $26,000. Nine checks issued by Gina Lionti, daughter of Filippo and Carmela, in August and September of 1978 were returned for insufficient funds. By August of 1978, the Italian Villa had fallen behind in payments to at least seven creditors, including three banks or savings and loan associations. Real estate, sales, and payroll taxes for the 1977 tax year were all delinquent.

Second, nine days before the fire, the First Mortgage Company of Pennsylvania notified Lionti that First Mortgage intended to call in a loan of $392,000 and foreclose on its security interests, including the restaurant and Lionti's liquor license. Five days before the fire, Lionti entered into an oral agreement with First Mortgage stipulating that the restaurant would be put up for sale by September 25, and would be sold within ninety days thereafter. On Tuesday, September 19, Lionti was to sign documents memorializing this agreement. No agreement was ever signed. On Wednesday, September 20, the Italian Villa burned to the ground.

Third, several arrangements concerning Lionti's insurance raise strong inferences of Lionti's involvement in the September 20 fire. On September 12--one day after First Mortgage notified Lionti of its intention to foreclose--Gaetano Lionti, son of Filippo and Carmela, approached an insurance agent and sought to purchase an additional $500,000 of fire insurance for the restaurant. After the fire, the agent reported this solicitation to the Pennsylvania fire marshal on his own accord. Asked why he approached the fire marshal, the agent explained, "Well, it's rather unusual when somebody requests a large amount of fire insurance in addition to what they may already have and then a couple of days later there is a fire." In addition, on September 14, Gina Lionti appeared in the office of Lionti's insurance agent and--for the first time in a two-year history of delinquent payments--prepaid three months' insurance premiums in advance of the date payment was due.

In the opinion of the insurer's expert, these facts, coupled with the absence of any indication of forcible entry, evidence that only Lionti had keys to the building and the alarm system, the early morning hour of the fire, and the absence of indicators that the fire had been set for revenge, fell "into a classic pattern of an insurance fraud fire."

For his part, Lionti maintained that the fire harmed rather than assisted him financially, suggesting an absence of motive, 3 and implied that the insurer colluded with First Mortgage to recover from Lionti, moneys that the insurer owed First Mortgage as a loss mortgage payee named in the policies. 4 In addition, Lionti suggested that a disgruntled employee, Brice McLane, may have ignited the fire in revenge for his discharge from employment. The issues presented by this appeal arise principally as a consequence of McLane's testimony.

B.

McLane had been hired by Lionti in July or August of 1978 to promote business. After several disputes with McLane over a bartender, McLane was paid $300 for his services and was discharged. The district court permitted Gina Lionti to testify to several declarations of McLane suggesting a motive of revenge. According to Gina, McLane stated, "No, she [the bartender] don't go. She's got to stay here.... Things are going my way, otherwise I will blow up the whole place with dynamite."

In order to rebut the inference that McLane, and not Lionti, started the fire the insurer called McLane to testify. Asked whether McLane recalled an argument or discussion with Gina Lionti during the summer of 1978, McLane asserted the fifth amendment privilege against self-incrimination. Nevertheless, taking what counsel for the insurer, David Strawbridge, characterized during oral argument as "a calculated risk," Strawbridge pressed on with additional questions. McLane denied threatening to harm Lionti or to burn, dynamite, or destroy the restaurant. However, in answer to the following question--"Did you have anything to do with setting the fire, Mr. McLane?"--McLane responded, "I refuse to answer that question on the grounds it may tend to incriminate me." 5

Strawbridge immediately approached the bench and informed the court that only an hour or so earlier, McLane had told Strawbridge and the insurer's investigator, William Miller, that McLane "did not have anything to do with the setting of the fire." Strawbridge consequently sought a ruling that McLane be compelled to answer. Accordingly, the district court excused the jury and conducted a hearing on the admissibility of McLane's testimony.

McLane proceeded to confirm that he told Strawbridge and the investigator, Miller that McLane was not involved in the fire. The court thereupon ruled that the insurer would be permitted to plead surprise and impeach the inference drawn from McLane's assertion of the fifth amendment privilege. In particular, the court ruled that McLane could be asked whether, within the previous hour, McLane told Strawbridge and Miller that he, McLane, had nothing to do with the fire. If McLane answered this question in the affirmative, the court ruled, McLane could then be asked whether this prior statement was true. Finally, the court ruled that McLane had not waived the fifth amendment privilege by virtue of any statements made to Strawbridge and Miller.

Still out of the presence of the jury, Strawbridge asked the questions authorized by the court. McLane confirmed that he told Strawbridge and Miller several...

To continue reading

Request your trial
6 cases
  • In re Stelweck
    • United States
    • U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • June 6, 1988
    ...L.Ed. 1118 (1951). As a result, it is difficult to draw any meaningful inference from invocation of the privilege. Lionti v. Lloyds Ins. Co., 709 F.2d 237, 245 (3d Cir.1983) (Stern, dis. op.). Moreover, if the Plaintiff wished the Defendants to answer its questions, it could have requested ......
  • Putnam Resources v. Pateman, Civ. A. No. 88-530B
    • United States
    • U.S. District Court — District of Rhode Island
    • February 22, 1991
    ...inference "inevitably invites jurors to give evidentiary weight to questions rather than answers"); Lionti v. Lloyd's Ins. Co., 709 F.2d 237, 244-47 (3d Cir.) (Stern, J., dissenting) (arguing against drawing inference from non-party invocation), cert. denied, 464 U.S. 995, 104 S.Ct. 490, 78......
  • Penfield v. Venuti
    • United States
    • U.S. District Court — District of Connecticut
    • May 24, 1984
    ...Gilbert, 79 F.R.D. 683, 686 (S.D.N.Y.1978) (Lasker, J.). The arguable harshness of the practice, see Lionti v. Lloyd's Insurance Co., 709 F.2d 237, 245-246 (3d Cir.) (Stern, J., dissenting), cert. denied, ___ U.S. ___, 104 S.Ct. 490, 78 L.Ed.2d 685 (1983), is mitigated by the ability of the......
  • Kelly v. Crown Equipment Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 25, 1992
    ...of the presiding judge, that such direction cures any error which may have been committed by its introduction.' " Lionti v. Lloyd's Ins. Co., 709 F.2d 237, 243 (3d Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 490, 78 L.Ed.2d 685 (1983), (quoting Throckmorton v. Holt, 180 U.S. 552, 567, 21 S......
  • Request a trial to view additional results
1 books & journal articles
  • Miscellaneous
    • United States
    • ABA Antitrust Library Model Jury Instructions in Civil Antitrust Cases
    • December 8, 2016
    ...of whether there is any evidentiary significance in the invocation of the Fifth Amendment by itself. Compare Lionti v. Lloyd’s Ins. Co., 709 F.2d 237, 244-47 (3d Cir. 1983) (Stern, J., dissenting) (no adverse inference allowed), with Rosebud Sioux Tribe v. A&P Steel, Inc., 733 F.2d 509, 521......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT