McGinnis v. Aetna Life & Cas. Co.

• Decision Date: 10 July 1986
• Citation: 494 N.E.2d 1322,398 Mass. 37
• Parties: Deborah McGINNIS v. AETNA LIFE & CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1322

494 N.E.2d 1322

398 Mass. 37

Deborah McGINNIS v. AETNA LIFE & CASUALTY CO.

Supreme Judicial Court of Massachusetts Hampshire.

Argued May 7, 1986.

Decided July 10, 1986.

Donald L. Graham, Norwood, for plaintiff.

James M. Rabbitt, Springfield, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

WILKINS, Justice.

The plaintiff claimed that her motor vehicle, which the police found destroyed by fire, had been stolen. The defendant had insured the vehicle against loss by theft but denied coverage on the ground that the plaintiff had intentionally procured the loss.

A judge of the Superior Court sitting without a jury concluded that the insurer had met its burden of proof on its affirmative defense and entered judgment for the defendant. Concluding that the judge had improperly shifted the burden of proof to the plaintiff, the Appeals Court reversed that judgment and ordered a new trial. McGinnis v. Aetna Life & Casualty Co., 20 Mass.App.Ct. 619, 621-622, 481 N.E.2d 1381 (1985). The Appeals Court held that the judge had improperly drawn a conclusive inference against the plaintiff from the fact that she failed to deny explicitly in her testimony that she procured the loss of her automobile. We disagree with the Appeals Court. The judge did not shift the burden of proof to the plaintiff, and he was warranted in drawing an adverse inference from the plaintiff's failure to testify that she did not intentionally procure the loss.

In his findings and rulings, the judge carefully considered the evidence and found "that the car was more probably than not deliberately destroyed by someone at the plaintiff's behest." The judge explicitly and correctly recognized that the burden of proof was on the insurer to prove its affirmative defense. Richardson v. Travelers Fire Ins. Co., 288 Mass. 391, 393, 193 N.E. 40 (1934).

After discussing the evidence on which he relied in concluding that the plaintiff had obtained someone to take the car and burn it, the judge added a paragraph to his findings and rulings that caused the Appeals Court to reverse the judgment. In that paragraph, which we set forth in full in the margin, ¹ the judge as the trier of fact gave weight to the plaintiff's failure to deny on the stand that she hired someone to steal and burn her vehicle.

The judge responded as any juror or judge, acting on common sense, might have in the circumstances. The plaintiff knew of the insurer's defense when she testified but she did not deny it. She did not resume the stand in rebuttal after the insurer made a prima facie case in support of its affirmative defense. A reasonable trier of fact might well note that omission. For us to say in a civil action that the trier of fact could not give weight to the plaintiff's silence, in the face of evidence warranting a finding against her, is to reject practicalities. In any event, the judge did not shift the burden of proof to the plaintiff. As a fact finder he simply gave weight, but not conclusive weight, to the absence of that testimony.

The judge's recognition of the absence of a denial from the plaintiff was not only reasonable and practical but also legally permissible. We have long recognized that, in a civil action, once the party having the burden of proof has presented a prima facie case, it is proper to argue to a jury that the party not having the burden of proof did not testify on a matter apparently within that party's knowledge. See Mitchell v. Silverstein, 323 Mass. 239, 240, 81 N.E.2d 364 (1948); Murphy v. Moore, 307 Mass. 163,...