Giulietti v. Connecticut Ins. Placement Facility

• Citation: 534 A.2d 213,205 Conn. 424
• Decision Date: 08 December 1987
• Docket Number: Nos. 13099,13100,s. 13099
• Parties: Frank GIULIETTI et al. v. CONNECTICUT INSURANCE PLACEMENT FACILITY.
• Court: Connecticut Supreme Court

Page 213

534 A.2d 213

205 Conn. 424

Frank GIULIETTI et al. v. CONNECTICUT INSURANCE PLACEMENT FACILITY.

Nos. 13099, 13100.

Supreme Court of Connecticut.

Argued Oct. 6, 1987.

Decided Dec. 8, 1987.

David M. Reilly, New Haven, for appellants-appellees (plaintiffs).

John E. Tener, with whom, on the brief, was Mary T. Nicholson, Hartford, for appellee-appellant (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

SHEA, Associate Justice.

In this action upon a policy issued by the defendant, insuring the plaintiffs against loss by vandalism and malicious mischief to their apartment house on Starr Street, New Haven, the jury returned a verdict for the plaintiffs of $14,000. ¹ After denying motions of both parties to set aside the verdict, the court rendered judgment in accordance therewith. The plaintiffs have appealed and the defendant has also appealed from the judgment. We find no error in either appeal.

The plaintiffs claim that the trial court erred: (1) in refusing to set aside the verdict as to damages because the evidence does not support the amount of the verdict; and (2) in directing a verdict for the defendant on the second count of the complaint seeking damages for its refusal to submit the determination of the amount of the loss to appraisers, as the policy provides. ²

On its appeal the defendant claims that the court erred: (1) in failing to set aside the verdict because the evidence did not indicate that any vandalism of the apartment house had occurred on the date alleged in the complaint; (2) in excluding evidence that the loss was due to other causes; and (3) in refusing to allow the defendant to amend its answer.

I

A

The first issue we consider on the plaintiffs' appeal is whether the jury could reasonably have concluded that the loss to the plaintiffs insured by the policy was $14,000. Under the insuring agreement the defendant insured the property up to the policy limit of $28,000 against the hazards specified "to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property...." The insurance loss adjusters who testified in behalf of both the plaintiffs and the defendant estimated the cost of repairing the vandalism damage to the building, with an allowance for depreciation, at more than $40,000. This sum exceeded not only the policy limit, but also two valuations of the building that had been made before it was insured. At the time the policy was issued in May, 1978, the defendant obtained an appraisal that valued the building at $28,000, the limit of coverage the policy provided. The 1978 records of the New Haven tax assessor indicated a value of $24,000. These valuations were made prior to April, 1979, when the plaintiffs first reported a loss due to the vandalism of one apartment in the building, for which they were paid $4369.06 by the defendant. The damage for which this payment was made was never repaired. The plaintiffs made no repairs or improvements after they acquired the building in 1977. The last of the tenants residing in the building had moved out just before the occurrence of the vandalism loss in April, 1979.

On July 23, 1979, the policy was amended by an endorsement changing the reference to the building "occupied as a 6 family dwelling" to read "vacant and secured." The plaintiffs produced testimony that the building had been secured by boarding up some doors and windows and by nailing others shut after the building had become vacant in April, 1979. The named plaintiff, Frank Giulietti, testified that from August through December, 1979, he visited the property every two or three weeks to observe the exterior of the building. He said that "[t]he condition was good" when he last saw the building four to six weeks prior to his discovery that the building had been vandalized.

Giulietti testified that, as a result of a telephone call he had received from a friend, he visited the Starr Street building on January 9, 1980. He then observed that the plywood boards he claimed to have placed over the windows and doors had been removed, "everything was open," many door and window frames had been removed, plumbing fixtures had been taken or damaged, pipes had been ripped out and the furnace in the basement had been stolen.

After the defendant had received notice of the plaintiffs' claim under the policy, it engaged an adjuster, Richard McKenna, to examine the building and investigate the claim. The photographs taken when he visited the premises on January 14, 1980, graphically portray the damaged condition of both the exterior and interior of the building. Doors and windows were broken or missing; large holes had been made in the plaster walls and ceilings; and the window and door frames, baseboards and other wood trim had been removed. McKenna's estimate of the cost of repairing the damage, excluding the cost of purchasing items that had been removed from the building and allowing for the vandalism damage in April, 1979, which had not been repaired, was $40,107.44. He testified that such an extensive theft of the items taken from the building would have taken three to five months to accomplish.

The defendant also presented the testimony of several witnesses residing near the building who said that the building had not been secured, as Giulietti had testified, but was readily accessible. These witnesses had seen people entering the building and removing boards and windows therefrom during the summer of 1979. Several months after the discovery of the vandalism, the plaintiffs transferred the real estate, including the building, for no consideration except the agreement of the purchaser to assume the unpaid real estate taxes. The building was later demolished.

In pursuing their claims in the fourth count of the complaint that the defendant had failed to adjust the claimed loss in good faith and had engaged in unfair trade practices, the plaintiffs introduced some correspondence between McKenna and the adjuster representing them, Meyer Biller. A letter from Biller to McKenna dated April 23, 1980, referred to "a final offer of $15,000 that [McKenna] would recommend to the company" but asserted that the plaintiffs had rejected such a figure. To this letter McKenna responded on May 1, 1980, somewhat irately, ³ that he had made no such offer but that he had "indicated to [Biller], verbally ... that, if [Biller] didn't get to a figure below $13,000, there would be no sense in contacting the carrier as it would not be economically feasible to even think about it." In another letter dated April 18, 1980, McKenna informed the defendant that Biller had telephoned him on April 11, 1980, to report that the plaintiffs "would not go less than $20,000." In this letter McKenna also declared that he had told Biller that "if [the plaintiffs] get down around $13,000, [he] would be in a position to call [the defendant]...." Neither the plaintiffs nor the defendant raised any objection to this evidence of the negotiations between the parties nor does it appear that any instructions were requested limiting the purposes for which the jury might use such evidence. No claim of error has been raised in this appeal by either party regarding the admission of this evidence or the absence of an appropriate instruction restricting its use. Even if we were to assume that the jury was influenced in arriving at its $14,000 verdict by its knowledge of these negotiations, the plaintiffs, who introduced the evidence without taking appropriate measures to avoid any such effect, are hardly in a position to complain.

Under the terms of the policy the defendant's liability was limited to the " 'actual cash value' of the property at the time of loss," unless the cost of repair or replacement of the items vandalized amounted to a lesser sum, a circumstance the defendant does not claim in this case. In determining the actual cash value of the property, the jury could consider, "under the socalled broad evidence rule, any evidence logically tending to the formation of a correct estimate of the value" of the insured property. Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 232, 384 A.2d 384 (1978); Castoldi v. Hartford County Mutual Fire Ins. Co., 21 Conn.Supp. 265, 269, 154 A.2d 247 (1959). This rule afforded a wide latitude to the factfinder in this case. The jury may well have accepted the lowest appraisal of the value of the building, the $24,000 estimate made in 1978 according to the tax assessor's records, and deducted therefrom the payment of $4369.06 made for the April, 1979, vandalism damage, which was never repaired. From the figure resulting from this calculation, $19,630.94, a further deduction may well have been made for the vandalism of the building that occurred after the April, 1979 loss but long before January 9, 1980, when Giulietti learned of the damage. ⁴ His testimony that the building had been secured with boards and nails was contradicted by several witnesses who testified that it was readily accessible to vagrants and children. The jury might reasonably have found that a substantial portion of the vandalism damage occurred as a result of the plaintiffs' failure to secure the building adequately, thereby rendering applicable the policy provision excluding liability "for loss occurring ... while the hazard is increased by any means within the control or knowledge of the insured." This provision was pleaded as a special defense and the court instructed the jury upon it.

Although it is not possible to ascertain exactly how the jury arrived at the $14,000 verdict, such precision is not essential to sustain the verdict. The issue in this case was the actual cash value of the building at the time of the loss recoverable under the policy. "[Value] is a matter of opinion based on all the evidence and, at best, is one of approximation." Richard v. A. Waldman & Sons,...