Opat v. State Farm Fire and Cas. Ins. Co.

• Decision Date: 09 July 1982
• Docket Number: Civ. A. No. 80-1131.
• Citation: 542 F. Supp. 1321
• Parties: David W. OPAT, an individual, and Janice M. Opat, an individual, Plaintiffs, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, an Illinois corporation, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

542 F. Supp. 1321

David W. OPAT, an individual, and Janice M. Opat, an individual, Plaintiffs, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, an Illinois corporation, Defendant.

Civ. A. No. 80-1131.

United States District Court, W. D. Pennsylvania.

July 9, 1982.

Charles Skomski, Monessen, Pa., for plaintiffs.

Richard W. DiBella, Pittsburgh, Pa., for defendant.

MEMORANDUM

McCUNE, District Judge.

We consider a motion for a new trial, filed by plaintiffs, a motion that plaintiffs be permitted to take an appeal in forma pauperis, and a post trial motion filed by defendant that judgment be entered against plaintiffs for $10,955.51, the amount which the defendant paid Mellon Bank to discharge a mortgage covering the real estate which is the subject of this litigation.

The plaintiffs, husband and wife, owned a residence as tenants by the entireties, which was destroyed by fire on the night, or early morning, of August 12, 1979. The defendant insured the premises against loss by fire in what is commonly called a homeowner's policy. The premises were mortgaged to Mellon Bank.

The defendant refused to pay for the loss, alleging that Janice Opat had burned the house intentionally, although defendant paid Mellon the balance of the mortgage debt.

The plaintiffs were separated as the result of domestic trouble, the husband having moved from the premises sometime in June of 1979. The wife remained in the family home with one child.

The trial was bifurcated and the jury was asked to answer one question — Did Janice Opat, or someone acting in concert with her and with her knowledge, intentionally set the fire of August 12, 1979? The Jury answered "Yes" and a judgment was entered for the defendant.

In her case in chief, Janice Opat testified concerning her domestic trouble which she attributed in large part to her affair with her husband's brother, Robert Opat. On the night of the fire she admitted being away from home and in a motel with Robert and her child about three years old. She had left her home at about six o'clock, had met Robert at a carwash, and had gone with him in his vehicle to the motel, where they had spent the night. Janice testified that she knew nothing of the fire until she returned to her home in the morning. She denied leaving the motel during the night.

Both David and Janice, in their testimony, attributed the fire, by inference, to Robert's wife, Marlene Opat, who would understandably be hostile to both Janice and Robert. They testified that a broken radio antenna had been found in their driveway after the fire which they considered to have come from Marlene's car.

Janice also testified that she had found that on August 6, 1979, some six days before the destruction of the property, someone had tried to start a fire at her basement door while she was asleep at home and that her phone had been ringing from time to time under suspicious circumstances because when it was answered there was no response.

The state fire marshal testified that in his opinion, the fire was of incendiary origin but that he could not determine the origin or the cause. A police officer was called by the plaintiffs concerning his investigation of the April 6 fire which was inconclusive according to his testimony.

It appeared that at the close of the plaintiffs' case, they had introduced evidence of incendiary origin, denied starting the fire and cast suspicion on Marlene.

In defense, a private fire investigator gave the opinion that the fire was of incendiary origin and gasoline or kerosene was the agent used. Another investigator testified that David Opat had been given a deadline by Janice of August 9, 1979, by which he was to remove his stereo equipment, the main possession of David, which he was to be given as part of the division of personal property.

A neighbor testified that Janice and she were close friends, that Janice had expressed the wish to her that the house would burn so that she and Robert could buy a Corvette automobile and go to Florida. The witness testified that Robert frequently visited Janice at her home, that the witness was familiar with Robert's car and the sound it made, that the car had driven into Janice's driveway the early morning of August 12, 1979, had left and had returned about an hour later and had left again, that Janice's dog was usually kept in Janice's cellar, but on that night was allowed to run loose and had spent the night in the witness' home.

The defendant convinced the jury that Janice and Robert planned the fire to raise money, planned the August 6 fire to cast suspicion on Marlene, went to the motel to create an alibi, returned during the night where one of them remained in the house long enough to use the agent, the other returned to pick up the accused, and they both then returned to the motel.

No allegation was made that David had any part in the plan, which raises the question whether he is bound by his wife's adverse verdict, or whether he can recover half of the loss. A part of this question is whether defendant can have judgment against him for the money paid to Mellon Bank, or against Janice alone, or against both.

The motion for new trial alleges the following errors in the rulings made, some of which were made at pretrial conference:

1. That the evidence submitted by defendant of the adulterous relationship between Janice and her husband's brother was prejudicial to plaintiffs and denied them a fair trial.

The evidence was admissible and was necessarily presented by the plaintiffs in their case in chief. It was elementary that plaintiffs would be asked of their whereabouts the night of the fire. It was obvious that Janice could say that she was not present and her presence in the motel with Robert was her alibi. We had ruled at pretrial conference that the whereabouts of the plaintiffs could be the subject of inquiry by either party, and the relationship of the wife plaintiff with her husband's brother could be the subject of inquiry, as well. Given the fact that the sojourn at the motel was Janice's alibi, it is difficult to conceive of the evidence being excluded, nor could the defendant have been deprived of the evidence had plaintiffs not brought it forth.

2. During the trial, a remark made by Robert Opat, seated in the audience, within the hearing of the jury, was so prejudicial to the plaintiffs that a new trial is required.

Robert Opat, who did not testify, but who was in the audience during David's redirect testimony, made a remark that the court did not hear. Counsel for plaintiff heard the remark as calling David a "junkie." There was no motion made for a mistrial. Counsel asked only that we admonish the jury to disregard the remark. This motion was granted and the jury admonished. Counsel cannot now demand a new trial in view of his motion and the granting of his motion. The incident was minor in any event, and does not require a new trial.

3. That error was made in refusing to permit the investigators to say that they had no evidence that implicated the plaintiffs and that plaintiffs had not been charged with the criminal offense of arson.

We had ruled at pretrial conference that while the investigators could testify and, if qualified, express opinions on the cause of the fire, they could not state whether anyone had been charged, or not charged, with a crime and they could not state whether they had evidence implicating plaintiffs or not. This ruling is in conformity with established rules of evidence, see Galbraith v. Hartford Fire Ins. Co., 464 F.2d 225 (3d Cir. 1972). Greenberg v. Aetna Ins. Co., 427 Pa. 511, 235 A.2d 576 (1967) (evidence of acquittal of criminal charge of arson held inadmissible).

The remaining errors charged do not merit discussion.

There is one serious issue remaining, i.e., whether the verdict bars recovery of half of the loss by the husband plaintiff as a tenant by the entireties in the real estate. It is apparent from the evidence that the husband plaintiff was not charged with the arson and did not commit it.

As noted previously, David and Janice Opat had separated and David had moved out of the residence in June of 1979. State Farm concedes that at the time of the fire David no longer lived in the house, and that he had no part in the intentional setting of the fire. We are thus faced with the question whether the actions of one insured spouse in burning, or causing to be burned, the insured dwelling, bar the other, innocent insured spouse from recovery under a fire insurance policy. In deciding this question, we must, of course, look to Pennsylvania law.

We join with the Maryland Court of Appeals in observing that this "has been a problem vexing the appellate courts of a number of jurisdictions for the past several years." St. Paul Fire and Marine Insurance Co. v. Molloy, 291 Md. 139, 433 A.2d 1135, 1139 (1981). It appears, however, that the Pennsylvania Supreme Court has not had the opportunity to address the issue, either recently or in the more distant past. Nor has the Pennsylvania Superior Court decided this precise question. The most recent discussion of Pennsylvania law on this issue was made in 1978 by the United States District Court for the Eastern District of Pennsylvania. In Mele v. All-Star Insurance Corp., 453 F.Supp. 1338 (E.D.Pa.1978), the court relied on the Pennsylvania Superior Court decision in Bowers Co. v. London Assurance Corp., 90 Pa.Super. 121 (1926) and the Washington County Court of Common Pleas decision in Matyuf v. Phoenix Insurance Co., 27 D&C2d 351 (1933). It determined that the "clear albeit somewhat vintage position of the Pennsylvania courts" bound it to conclude that the innocent spouse was barred by the fraudulent acts of the other if the jury determined that the other was responsible for the fire. Mele v. All-Star Insurance Corp., supra, at 1342.

Our own reading of Bowers v. London Assurance Corp., supra, does not convince us that it is so clearly on point as...