Allen v. Safeco Ins. Co. of America, 84-3865
| Decision Date | 24 February 1986 |
| Docket Number | No. 84-3865,84-3865 |
| Citation | 782 F.2d 1517 |
| Parties | 20 Fed. R. Evid. Serv. 218 Paul C. ALLEN and Marjorie Allen, Plaintiffs-Appellees, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ronald E. Cabaniss, Sharon Lee Stedman, Orlando, Fla., Bob G. Freeman, Jr., Tampa, Fla., for defendant-appellant.
Rodney D. McGalliard, Gainesville, Fla., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of Florida.
Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and SIMPSON, Senior Circuit Judge.
Shortly after their home was destroyed by fire, Paul and Marjorie Allen filed a claim for their loss pursuant to an insurance policy issued by Safeco Insurance Company. Safeco denied liability. The Allens filed suit in the Florida state court seeking payment under the policy. The case was removed to the U.S. District Court, N.D. Florida.
Safeco sued in the federal court, seeking declaratory relief as to its duties to the Allens under the policy, and the cases were consolidated for trial. In both cases Safeco raised arson as a defense. Later Safeco paid two mortgagees for their security interests in the property and took assignments of their security interests.
The jury returned a verdict finding that the fire was not intentionally set and setting damages of $389,000. 1 In a post-trial order the court held that Safeco was entitled to a set-off of $187,433.09, the amount it had paid the mortgagees, and that the Allens were entitled to prejudgment interest and attorney's fees.
Safeco appeals, contending (1) that the evidence did not support the verdict; (2) error in admitting hearsay evidence; (3) error in permitting the Allens to use in cross-examination of a Safeco expert magazine articles not established to be authoritative; (4) error in computing the award of prejudgment interest, and (5) error in the denial of Safeco's motion for directed verdict on the claim for loss of use of the premises.
There was sufficient evidence to support the jury's finding that the fire was not intentionally set. Although Safeco presented expert witnesses who concluded that a flammable liquid had been used to set the fire, the jury could have believed the testimony of state fire marshall Jerome Gant that there was no evidence of an accelerant. Gant witnessed the fire and later returned to the premises to conduct an investigation of the debris.
Safeco objected to Gant's reliance on a report he received from the Tallahassee Law Enforcement Department, a state crime lab that conducted tests on samples of the debris left on the Allens' property. 2 Gant's testimony is covered by the business records exception to the hearsay rule. Fed.R.Evid. 803(6) excepts from the hearsay rule:
Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Although Gant did not prepare the lab report, his testimony provided sufficient foundation to admit the test results into evidence. His testimony established that the Tallahassee Law Enforcement Department regularly analyzed samples sent from his office. The report and the test results in the report were issued by a state agency in the regular course of its business, and there was no indication that they lacked trustworthiness. Under Fed.R.Evid. 803(6), "the person who actually prepared the documents need not have testified so long as other circumstantial evidence and testimony suggest their trustworthiness...." U.S. v. Parker, 749 F.2d 628, 633 (11th Cir.1984).
The trial court has broad discretion in ascertaining the admissibility of business records, and its ruling should be disturbed only when that discretion is abused. Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir.1980). The district court did not abuse its discretion.
During cross-examination of Walter Godfrey, Safeco's expert, counsel read to Godfrey statements from two articles published in the magazine Fire Arson Investigator. Safeco objected to the use of the first article, by Dennis Canfield, but did not object to the second. Therefore, we consider only the first article. 3
Godfrey established that the periodical in which the article appeared was authoritative by testifying that it was one of the sources he used in keeping up to date on fire scene investigation and analysis. He also testified that articles in the Fire Arson Investigator were generally considered "somewhat" authoritative. Godfrey's testimony also established the authoritativeness of the first article by acknowledging the good reputation enjoyed by the Forensic Science Department of the University of Mississippi, which Canfield, the author of the article, directs.
Godfrey's testimony provided a sufficient foundation to permit counsel to read to the jury statements from the article. Fed.R.Evid. 803(18) excepts from the hearsay rule
Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
The Notes of the Advisory Committee counsel a liberal interpretation of Rule 803(18), favoring admissibility:
The relevance of the use of treatises on cross-examination is evident. This use of treatises has been the subject of varied views. The most restrictive position is that the witness must have stated expressly on direct his reliance upon the treatise. A slightly more liberal approach still insists upon reliance but...
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