Davis v. Mutual of Omaha Ins. Co.

• Decision Date: 21 November 1990
• Citation: 167 A.D.2d 714,562 N.Y.S.2d 883
• Parties: Joan M. DAVIS, Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 883

562 N.Y.S.2d 883

167 A.D.2d 714

Joan M. DAVIS, Appellant, v.MUTUAL OF OMAHA INSURANCE COMPANY, Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 21, 1990.

Joan M. Davis, Troy, in pro. per.

Thuillez, Ford, Gold & Conolly(Donald P. Ford, Jr., of counsel), Albany, for respondent.

Before WEISS, J.P., and MIKOLL, LEVINE, MERCURE and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the Supreme Court(Keniry, J.), entered November 16, 1989 in Rensselaer County, upon a decision of the court, without a jury, in favor of plaintiff.

The underlying breach of contract action in this case stems from a dispute between the parties over the extent to which three insurance policies obtained from defendant by plaintiff in 1980 or 1981 covered plaintiff's treatment for temporal mandibula joint syndrome (hereinafter TMJS).Defendant disclaimed coverage for several years arguing that TMJS was a preexisting condition that plaintiff had allegedly been treated for but failed to disclose on her insurance applications.As it later turned out, however, medical affidavits established that plaintiff had not previously been treated for TMJS, nor had she been told she had symptoms of TMJS prior to the time she filled out her insurance applications.Apparently because of plaintiff's frustration over what she felt was an unjustified denial of insurance benefits, plaintiff wished to vigorously pursue her second cause of action for punitive damages against defendant.However, a dispute with her attorney over, among other things, the viability of the punitive damages claim ultimately led to the withdrawal of plaintiff's attorney from representing her in this matter.Despite her efforts, plaintiff was unable to obtain another attorney and plaintiff finally brought the case to trial, pro se, on July 6, 1988.

At trial, it is apparent from the record that plaintiff's inexperience and lack of legal training prevented her from making a reasonable presentation of the evidence and she was clearly confused as to issues such as which party bore the burden of proof.Nevertheless, early in the proceedings defendant conceded that plaintiff was covered for TMJS under the policies and only disputed the amount of coverage.However, when plaintiff tried to prove the extent of her damages she only offered her own conclusory testimony as evidence without introducing any medical bills.At the close of plaintiff's case, defendant made a motion to dismiss on the ground that plaintiff had failed to meet her burden of proof.Supreme Court adjourned the matter without deciding the motion following unsuccessful discussions with plaintiff over a possible settlement of the case.When the case reconvened on July 17, 1989, defendant consented to damages on the compensatory part of plaintiff's claim in the amount of $20,121 but renewed its motion to dismiss the punitive claim.Although plaintiff disputed the amount offered in compensatory damages, she offered no additional proof on the issue.Thereafter, Supreme Court found against defendant in the amount of $20,121 on plaintiff's first cause of action and dismissed her claim for punitive damages for failure of proof.This appeal by plaintiff followed.

Plaintiff challenges Supreme Court's determination of compensatory damages, arguing that additional moneys should have been awarded as to her first claim.Additionally, plaintiff asserts that Supreme Court erred in dismissing her claim for punitive damages.We cannot agree with these contentions.

It is well settled that the burden of proving damages in contract actions is on the plaintiff(see, Manshul Constr. Corp. v. Dormitory Auth. of State of N.Y., 79 A.D.2d 383, 387, 436 N.Y.S.2d 724).Here, regarding the compensatory damages claim, the only adequate proof of damages in the record was the $20,121 amount that defendant consented to on the record.No other competent proof was presented.Absent the concessions of defendant regarding her first claim, Supreme Court correctly noted...