Hutt v. Lumbermens Mut. Cas. Co.

• Decision Date: 15 August 1983
• Parties: Alan S. HUTT et al., Appellants, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 28

466 N.Y.S.2d 28

95 A.D.2d 255

Alan S. HUTT et al., Appellants, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Aug. 15, 1983.

Scher & Eliasberg, P.C., Great Neck (Robert A. Scher, Great Neck, of counsel), for appellants.

Whitman & Ransom, New York City (Patrick Lanigan, New York City, of counsel; Robert S. Newman, New York City, on the brief), for respondent.

Before TITONE, J.P., and LAZER, GIBBONS and THOMPSON, JJ.

TITONE, Justice Presiding.

In an action to recover the proceeds of a fire insurance policy, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, which dismissed the complaint following a jury verdict in favor of the defendant-insurer (hereinafter defendant).

The issue is whether the defendant met its burden of establishing the affirmative defense of arson. Finding that it did not, we reverse.

Plaintiffs were the owners of a one-family house, located in Deer Park, Long Island, in which they had resided for some 21 years. The house was insured under a standard homeowner's policy issued by defendant which provided protection against damage caused by fire. Sometime during the early morning hours of February 21, 1980, while the plaintiffs were home, a fire destroyed the house and its contents. Defendant disclaimed coverage, claiming arson. This action followed.

To support its arson defense, defendant produced a single expert whose conclusion that the fire was incendiary in nature was based upon the premise that certain wall burn patterns (described as "V patterns") were inconsistent with any hypothesis but arson, and that certain floor burn patterns (called "pour patterns") suggested the use of an accelerant.

The expert's analysis of the wall burn patterns hinged on the theory that no sparks had been carried from the point of the initial conflagration to ignite secondary fires throughout the house. This was based on the assumption that heat had broken the exterior den windows and vented the fire. But, on cross-examination, the expert conceded that he did not know when the windows had been broken and that it was equally possible that they might have been broken by the fire department after the fire had already engulfed the area. If that had been the case, it was possible that sparks, carried by smoke and flame, might have swept through the house causing secondary ignitions on the first and second floors, which would have been consistent with the manner and direction that the fire had spread.

Similar equivocation is involved with respect to the floor burn patterns. The expert examined floor burns in the living room, bathroom and den and formed an initial opinion that they were produced by an accelerant. Yet, on cross-examination he qualified this opinion after noting that if an accelerant had been used the carpet would have burned through and had not, that innocuous chemicals may have been responsible for the bathroom pattern, and that an "instant-on" television (the type that plaintiffs owned) or burning debris that had fallen would also have been consistent with the downward burn patterns in the den. These possibilities were never considered during the course of the expert's investigation.

In an action to recover the proceeds of a fire insurance policy, it is the insurer's burden to establish the affirmative defense of arson (see 2 N.Y. PJI 4:80, p. 1066). And, notwithstanding some early New York cases suggesting that the burden is met by a mere preponderance standard of proof (e.g., Johnson v. Agricultural Ins. Co., 25 Hun. 251) ¹, we think that, because arson is "but one form of fraud in making [a] claim under a policy" (2 N.Y. PJI 1066) and an inference of arson must be "strong and almost inevitable" (Appleman, Insurance Law and Practice, § 12229), the more contemporary measure of persuasion is that of clear and convincing evidence (Simcuski v. Saeli, 44 N.Y.2d 442, 452, 406 N.Y.S.2d 259, 377 N.E.2d 713; Rudman v. Cowles Communications, 30 N.Y.2d 1, 10, 330 N.Y.S.2d 33, 280 N.E.2d 867; see, e.g.,Saks & Co. v. Continental Ins. Co., 26 A.D.2d 540, 271 N.Y.S.2d 1004, affd. 23 N.Y.2d 161, 295 N.Y.S.2d 668, 242 N.E.2d 833; C-Suzanne Beauty Salon v. General Ins. Co. of Amer., 574 F.2d 106, 112, n 9; cf. Jonari Mgt. Corp. v. St. Paul Fire & Mar. Ins. Co., 58 N.Y.2d 408, 417, 461 N.Y.S.2d 760, 448 N.E.2d 427). As was so well noted in Ziegler v. Hustisford Farmers Mut. Co. 238 Wisc. 238, 298 N.W. 610, 612, " 'To fasten upon a man the act of wilfully and maliciously setting fire to his own building should certainly require more evidence than to establish the fact of payment of a note, or the truth of an account in setoff; because the improbability or presumption to be overcome in the one case is much stronger than it is in the other. Hence, it can never be improper to call the attention of the jury to the character of the issue, and to remind them that more evidence should be required to establish grave charges than to establish trifling or indifferent ones' " (quoting 2 Jones, Commentaries on Evidence [2d ed], § 563, p. 1036). ²

It must be emphasized, however, that the clear and convincingstandard relates only to the quality and not the quantum of proof (see Lilly, Introduction to the Law of Evidence, § 15, p 42; 4 Benders' NY Evid, § 183.03). "Proof may be required to be clear and convincing without transcending the rule of preponderance" (Roberge v. Bonner, 185 N.Y. 265, 268, 77 N.E. 1023). ³ Thus, in cases where the standard is applicable, the proper jury "instruct[ion] [is] that to make out a preponderance, the evidence should be clear and convincing" (McKeon v. Van Slyck, 223 N.Y. 392, 397, 119 N.E. 851; see, also, McBaine, Burden of Proof: Degrees of Belief, 32 Calif.L.Rev. 242, 246, 253-254). ⁴

In this case, the evidence is equally balanced. Neither qualitatively nor quantitatively does it meet the required level of convincement. As a matter of logical necessity, the expert's opinion is based upon conjecture and speculation and cannot be deemed to preponderate in favor of defendant's hypothesized theory of arson (Rinaldi & Sons v. Wells Fargo Alarm Serv., 39 N.Y.2d 191, 196, 383 N.Y.S.2d 256, 347 N.E.2d 618; Carrera v. State of New York, 29 A.D.2d 577, 578, 285 N.Y.S.2d 332), particularly in the absence of proof of motive (cf. Anderson v. General Acc. Fire & Life Assur. Corp., 58 A.D.2d 568, 395 N.Y.S.2d 118; V.F.V Constr. Co. v. Aetna Ins. Co., 56 A.D.2d 598, 391 N.Y.S.2d 466). Accordingly, the jury's verdict should have been set aside as against the weight of the evidence (see O'Boyle v. Avis Rent-A-Car System, 78 A.D.2d 431, 439, 435 N.Y.S.2d 296).

For these reasons, the judgment appealed from should be reversed, on the law and the facts, and a new trial granted.

Judgment of the Supreme Court, Suffolk County, entered October 19, 1981,...