Carrol v. Allstate Ins. Co.

• Decision Date: 25 February 2003
• Docket Number: (SC 16758).
• Citation: 815 A.2d 119,262 Conn. 433
• Court: Connecticut Supreme Court
• Parties: OSWALD CARROL v. ALLSTATE INSURANCE COMPANY.

262 Conn. 433

815 A.2d 119

OSWALD CARROL v. ALLSTATE INSURANCE COMPANY.

(SC 16758).

Supreme Court of Connecticut.

Argued September 26, 2002.

Officially released February 25, 2003.

Borden, Norcott, Katz, Vertefeuille and Zarella, Js. Linda L. Morkan, with who was Daniel F. Sullivan and, on the brief, Thomas J. Donlon, for the appellant (defendant).

Frederic S. Ury, with whom were Betty Ann Rogers and, on the brief, Deborah M. Garskof, for the appellee (plaintiff).

Opinion

VERTEFEUILLE, J.

This case arises from a dispute between the plaintiff, Oswald Carrol, and the defendant, Allstate Insurance Company, his property insurance carrier, concerning the origins of a fire at the plaintiff's home. The defendant appeals¹ from a judgment for the plaintiff rendered after a jury trial, in which the jury awarded the plaintiff damages for intentional and negligent infliction of emotional distress and breach of contract.

The dispositive issues in this appeal are whether: (1) there was sufficient evidence to support the jury's finding that the defendant was liable for intentional infliction of emotional distress; (2) there was sufficient evidence to support the jury's finding that the defendant was liable for negligent infliction of emotional distress; and (3) the $500,000 awarded as compensatory damages was excessive.² We affirm the judgment finding the defendant liable for negligent infliction of emotional distress and conclude that the damages awarded on that basis were not excessive.

The jury reasonably could have found the following facts. On January 21, 1997, a fire destroyed a significant portion of the plaintiff's house in Norwalk, which he had owned with his wife for more than twenty years. The evening before the fire, the plaintiff had gone to a local service station to purchase kerosene for use in a kerosene heater. The plaintiff noticed that the container smelled "bad," but nevertheless stored it in the basement of his house. Unbeknownst to the plaintiff, the attendant had filled the container with gasoline instead of kerosene. The next morning, after the plaintiff's wife had left for work, the plaintiff worked on his prayer studies³ in the basement. While in the basement, he heard a bang, which he thought was his wife returning home. The plaintiff called out to his wife and, after not receiving a response from her, he continued on with his routine, ignoring the banging noise. Later, he smelled something burning and discovered that the kerosene container was on fire. He tried unsuccessfully to extinguish the fire with an old coat; he then picked up the flaming container and threw it out the basement door into his backyard, burning himself in the process. The plaintiff immediately notified his neighbor of the fire and the fire department was then called.

The defendant had issued a homeowner's insurance policy (policy) insuring the plaintiff's home. The policy, which originally was purchased in 1994 and was in effect at the time of the fire, contained standard fire policy provisions insuring the property for its market value. The policy also contained a provision declaring that the defendant would not be liable "for loss occurring . . . while the hazard is increased by any means within the control or knowledge of the insured. . . ."

The plaintiff filed a claim for the fire damage with the defendant. After examining the residence and interviewing the Norwalk fire marshal, the defendant deduced that the fire resulted from arson and initiated an investigation to determine whether the plaintiff had purposefully started the fire.⁴ The defendant assigned an investigator from its special investigations unit,⁵ Eric Shadbegien, to investigate the fire at the plaintiff's house. The defendant also hired an independent fire expert, Thomas Haynes, to prepare a preliminary report following a more thorough investigation into the possibility of arson. These two investigators conducted interviews, took samples from the premises and examined the fire scene. Both of them concluded that the fire had been the result of arson. The defendant therefore refused to reimburse the plaintiff, in the claimed amount of $26,468, for the plaintiff's personal items such as clothing, furniture, luggage and books. The defendant did pay for the damage to the plaintiff's house and for his wife's portion of the personal property claim. As a result of the defendant's refusal to pay the plaintiff's personal property loss, the plaintiff initiated the action underlying this appeal.⁶

The jury found that the defendant had breached the insurance contract⁷ and that the defendant was liable for both intentional and negligent infliction of emotional distress. The jury awarded the plaintiff $500,000 in compensatory damages and the trial court awarded the plaintiff $60,000 in punitive damages because of the jury's finding that the defendant intentionally had inflicted emotional distress on the plaintiff. The defendant moved to set aside the verdict, to reduce the verdict, and for judgment notwithstanding the verdict. His motions, however, were denied by the trial court. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the plaintiff did not present sufficient evidence to establish the defendant's liability for intentional infliction of emotional distress. Specifically, the defendant maintains that the plaintiff failed to prove one of the required elements of the cause of action, namely that the defendant's actions were extreme and outrageous. The plaintiff responds that there was sufficient evidence to prove that the plaintiff had suffered emotional distress as a result of the defendant's extreme and outrageous conduct. We agree with the defendant.

The jury reasonably could have found the following additional facts concerning the defendant's actions. At trial, the plaintiff called as a witness John Barracato, an independent, neutral fire loss expert, who testified that the fire at the plaintiff's house was accidental and not the result of arson. For trial, Barracato prepared a full and final structural fire investigation report.⁸

In the report, Barracato concluded that the fire had been started by liquid vapors from the kerosene container in the basement. According to Barracato, the substance purchased by the plaintiff the night before the fire was, in fact, gasoline and when the plaintiff placed the container in the basement, vapors began to leak toward the source of ignition, the pilot light of a stove located in the basement. Barracato also found that irregular, radiated heat burns were located all over the basement floor, a finding consistent with the combination of a vapor fire and the type of synthetic carpeting located in the plaintiff's house. Barracato concluded in his report: "This investigator saw no indicators of an intentional act relative to this incident.... The bottoms of cabinets, constructed of wood paneling, showed no signs of flame impingement damage. Had flammable liquids been splashed around this basement, all of the cabinets, refrigerator, kitchen table and chairs, sewing machine, wheels on the secretary chair, the cloth covered couch and love seat, and a five gallon can of kerosene would have been seriously fire damaged by direct flame impingement. This was clearly not the case."

Barracato's conclusion that arson was not involved was based on a number of other factors that pointed toward an accidental fire. First, the time of the fire at the plaintiff's house, 11:30 a.m., was not typical of arson. Barracato noted that arsonists usually set fires between midnight and 6 a.m. to reduce the possibility of discovery and to assure total destruction for maximum insurance claim recovery. Second, he noted in his testimony that the plaintiff was home during the fire, that he was badly burned trying to remove the flaming container from the house, and that he was the one who informed a neighbor to call the fire department. Further, no valuables had been removed from the house prior to the fire and the plaintiff's cars and truck were still parked adjacent to the house. All of these factors indicated to Barracato that this was not a case of arson because the plaintiff's actions did not indicate that he was trying to hide the fire or maximize the destruction of his house.

Both in his report and in his testimony at trial, Barracato was critical of the investigation and report prepared by Haynes and Shadbegien, opining that their investigation and report had not been thorough and, as a result, were not accurate. Barracato testified that these investigators for the defendant had ignored vital evidence that was needed to prepare a complete report. For example, he testified that Haynes' report did not take into account a number of the factors Barracato had testified about, such as the time of the fire, the injuries to the plaintiff and the location of the plaintiff's cars, all of which were supportive of an accidental fire.

Also, the defendant's investigation relied heavily on the burn patterns on the floor, and it concluded that the patterns indicated arson. Barracato criticized the manner in which Shadbegien and Haynes had examined the burn patterns. In his report, Barracato stated: "Other investigators, public and private, did not clear away the drop down debris from the floor. [During the fire, the ceiling had flaked and fallen to the floor.] As a result, they could not be in a position to see if there were intentional pour patterns. This investigator did not observe pour patterns on the carpeting. There was only superficial radiated heat patterns as one would expect to see." Barracato testified that the defendant's investigators failed to move objects in the basement in order to observe the burn patterns more accurately. Barracato testified that had some of the furniture been moved, it would have become evident to the investigators that the burn patterns indicated a vapor...