Malek v. Federal Ins. Co.
| Decision Date | 30 April 1993 |
| Docket Number | D,No. 742,742 |
| Citation | 994 F.2d 49 |
| Parties | 37 Fed. R. Evid. Serv. 103 Eliezer Moshe MALEK and Malke Malek, Plaintiffs-Appellants-Cross-Appellees, v. FEDERAL INSURANCE COMPANY; Sea Insurance Company, Limited, Defendants-Appellees-Cross-Appellants. ockets 92-7782, 92-7858. |
| Court | U.S. Court of Appeals — Second Circuit |
Eugene I. Farber, White Plains, NY (Steven L. Segall, Hinda Keller Farber, Katz, Kleinbaum, Farber & Segall, White Plains, NY, of counsel), for plaintiffs-appellants-cross-appellees.
Paul Kovner, New York City (Franklin D. Tell, Kenneth R. Feit, Tell, Cheser & Breitbart, New York City, of counsel), for defendants-appellees-cross-appellants.
Before OAKES, MINER and McLAUGHLIN, Circuit Judges.
Plaintiffs-appellants-cross-appellees Eliezer Moshe Malek and Malke Malek ("the Maleks") appeal from a judgment entered after a jury trial in the United States District Court for the Southern District of New York (Gagliardi, J.) dismissing their complaint. The Maleks, a married couple, commenced this action to recover the proceeds of their fire insurance policy after defendant-appellee-cross-appellant The Maleks contend that the district court erred in, inter alia, excluding the relevant testimony of a social worker who was prepared to testify on the basis of her personal knowledge and business records; sequestering the Maleks' expert during the testimony of the defendants' expert, where the presence of the Maleks' expert was essential to the Maleks' cross examination of the defendants' expert; and permitting defense counsel to cross examine a witness about his religious affiliation and the religious affiliation of his clients. For the reasons set forth below, we agree with the Maleks that the district court erred in making these rulings and that these errors substantially affected the outcome of the trial.
Federal Insurance Company ("Federal") rejected their claim. The district court dismissed the Maleks' complaint after the jury returned a verdict, the jury having found that the Maleks concealed or misrepresented material facts during Federal's investigation of the fire that destroyed their property and that the Maleks intentionally caused the fire
The Maleks owned a house in Highland Mills, New York and rented it to Mr. and Mrs. Leo Agrillo. The house was insured by defendant-appellee-cross-appellant Sea Insurance Company, Limited ("Sea"), a subsidiary of Federal. In 1988, the Maleks commenced a landlord-tenant proceeding against the Agrillos and in June 1989 obtained a warrant of eviction against them. On July 5, 1989, the Agrillos' eviction date, Deputy Sheriff Anthony Patricola inspected the house and confirmed that it was vacant.
On July 10, 1989, the house was destroyed by fire. The Maleks submitted a claim for the fire loss to Sea for $264,766. In March 1991, after a lengthy investigation, Federal rejected the Maleks' fire loss claim. 1 The Maleks brought an action against both Sea and Federal for breach of the fire insurance policy issued by Sea.
During trial, defendants contended they were not obligated to pay the Maleks' fire loss claim because the fire was incendiary in origin; the Maleks were responsible for the arson; and the Maleks had misrepresented and concealed material facts and circumstances during the investigation of the fire. The Maleks argued that they did not lie or misrepresent facts to the insurance companies during the course of the investigation and that the fire was not a result of arson. Rather, the Maleks alleged that the fire may have been caused by an electrical malfunction or accidentally may have been set by the Agrillos. The Maleks sought to demonstrate that the Agrillos may have been responsible for the fire because the Agrillos engaged in cult activities involving the use of candles and fire; a young woman had suffered second degree burns on the premises some time before the July 10 fire; and the Agrillos had access to and were present in the house after July 5, 1989--the date Deputy Sheriff Patricola confirmed that the house was vacant--and before July 10, 1989--the date of the fire.
To support their contention that the Agrillos may have set the fire, the Maleks attempted to introduce the testimony and case notes of Carol Barber, a social worker for the Orange County Department of Social Services who handled the case file concerning the Agrillo children. Barber was prepared to testify that the Agrillos had continued access to the premises; the Agrillos engaged in cult activities; and that a young woman had sustained second-degree burns at the premises. She also would have supported her testimony that the Agrillos had access to the house after the eviction date by submitting photographs, taken in the house by Mrs. Agrillo on July 6 or 7, 1989, which depicted a container of milk that had not yet reached its expiration date. The district court excluded Barber's testimony in toto.
To show the absence of arson, the Maleks presented the testimony of Thomas Curley, a taxi driver on duty in the vicinity at the time of the fire. Curley claimed that the color of smoke from the fire was white. The color of the smoke was relevant because black smoke indicates the presence of accelerants, which are often used by arsonists, while white smoke indicates the absence of accelerants.
To refute this testimony and to establish arson as the cause of the fire, the defendants called a fire expert, David Redsicker. The Maleks sought permission from the court to have their fire expert, Fire Chief George Friedell, present in the courtroom during Redsicker's testimony in order to aid their counsel in cross examining Redsicker. The district court denied the Maleks' request and ordered all witnesses to leave the courtroom.
Redsicker testified that the fire was caused by arson. Although a laboratory analysis of debris found no accelerants present, Redsicker asserted that either water from fire fighting could have washed accelerants away or accelerants could have burned off due to the intensity of the fire. After returning to the courtroom, Friedell testified that accelerants could not be washed away and that, despite the intensity of the fire, small, solid particles would remain. The Maleks also disputed whether Redsicker conducted a proper inspection of the scene after the fire. The Maleks contended that Redsicker failed to "overhaul," or to sift through, all of the debris and failed to look for evidence such as candles or other evidence of cult activities.
Redsicker introduced several photographs taken at the scene of the fire. The photographs showed that copper wiring, but not hollow copper tubing, had melted. Redsicker testified that the fire was "very intense," a conclusion reached during his trial testimony but not explicitly stated in his reports provided to the Maleks prior to trial. This portion of his testimony was relevant because the melting of the copper wire indicated arson. However, Redsicker's theory did not explain why the hollow copper tubing failed to melt despite the intensity of the fire. Friedell's absence from the courtroom precluded him from informing the Maleks' counsel of this inconsistency. Counsel for the Maleks failed to cross examine Redsicker about why the copper tubing had not melted.
To rebut the defendants' contention that they had a financial motive to set fire to the premises, the Maleks called an accountant, William Schneck, to testify as to their financial stability. During the cross examination of Schneck, the following colloquy took place:
Q. Was your principal a member of the Hassidic [sic] community in the business transaction you had with Mr. Malek?
[The Maleks' Attorney]: Objection, your Honor.
THE COURT: Overruled.
A. Yes.
Q. Do you act as a CPA for other members of the Hassidic [sic] community?
[The Maleks' Attorney]: Objection.
THE COURT: Overruled.
A. Not just Hassidic [sic] people.
Q. I didn't ask you that.
A. In that respect, yes. There's a number of people that I do that for.
Q. You've been a professor at Tuoro [sic] University for eight years, is that correct?
A. Yes.
Q. And that's part of the Yeshiva University system, isn't [it]?
[The Maleks' Attorney]: Objection.
THE COURT: I'll permit it.
A. It's not a member, no.
Q. Isn't it affiliated with organized Jewish institutions?
[The Maleks' Attorney]: Objection.
THE COURT: Sustained.
The district court gave no limiting instruction to the jury to indicate that it was improper for the defendants to impeach Schneck's credibility with evidence of his religious affiliations or beliefs.
After deliberating for approximately an hour-and-a-half, the jury delivered a verdict
in favor of the defendants, and the district court dismissed the Maleks' complaint.
The district court excluded Barber's testimony, and it excluded her case notes on the ground they were not business records and thus were inadmissible hearsay. The business records exception to the hearsay rule allows for the admission of the following evidence for the purpose of proving the truth of its contents:
A memorandum, report, record, or data compilation ... 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.
Fed.R.Evid. 803(6). We review a district court's exclusion of hearsay for abuse of discretion. United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990).
Barber's case notes were records kept by the Orange County Department of Social Services in the regular course of business. These case notes were taken in the normal course...
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