Pawlinski v. Allstate Ins. Co.

CourtSupreme Court of Connecticut
Writing for the CourtBefore HOUSE; HOUSE
Citation165 Conn. 1,327 A.2d 583
Decision Date02 May 1973

Page 583

327 A.2d 583
165 Conn. 1
Supreme Court of Connecticut.
May 2, 1973.

Page 584

[165 Conn. 2] Leon R. Nomore and Elsie K. Nomore, Norwalk, for appellant (plaintiff).

Noel R. Newman, Bridgeport, with whom, on the brief, was Edgar W. Krentzman, Bridgeport, for appellee (defendant).

Before [165 Conn. 1] HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

[165 Conn. 2] HOUSE, Chief Justice.

On February 24, 1962, the plaintiff was injured in an automobile accident. In January of that year, the plaintiff had bought a new Volkswagen automobile and approximately at the time of purchase had discussed with an agent of the defendant, the plaintiff's insurer, a change in his insurance coverage. Both parties agree that at that time the plaintiff requested that a 1952 Ford automobile be eliminated from the coverage, that the 1962 Volkswagen be added, and that medical payments coverage and collision coverage be effected for the Volkswagen. These changes were reflected in an 'endorsement' to the policy which had an effective date of January 10, 1962.

The center of the present dispute is another item included in the January 10 endorsement. The plaintiff claims that in January he also requested and [165 Conn. 3] received 'disability income' coverage, as noted in the January 10 endorsement, which entitled him to payments of $50 for each week of disability resulting from his accident. The defendant claims that this coverage was not in fact in effect until at least three days after the February 24 accident and was requested by the plaintiff's wife on February 27.

Page 585

The trial court found that the plaintiff failed to sustain the burden of proof as to his claim and rendered judgment for the defendant. The plaintiff has assigned as error, inter alia, the refusal of the trial court to find the facts set forth in forty-four paragraphs of the draft finding, the inclusion in the finding of sixteen paragraphs alleged to be unsupported by evidence and of thirteen 'conclusions' claimed to be unsupported by subordinate facts, the overruling of thirty claims of law, numerous rulings on the admissibility of evidence, and the court's interpretation of the law concerning the burden of proof. This court strongly disfavors such an unwieldy method of presenting an appeal. Arcari v. Dellaripa, 164 Conn. 532, 325 A.2d 280. The plaintiff, however, has to of his appeal by stating in his brief: of his appeal by stating in his brie: '(T)he seemingly wholesale nature . . . (of the attack on the court's finding) resulted as a chain of reaction from the court's misinterpretation of the issues raised by the pleadings and its misconstruction of the principles of law applicable to the issues and the evidence.'

An examination of the specific assignments of error and of the plaintiff's brief reveals two primary claims of error, and a determination of the merits of these claims is dispositive of the appeal. The first claim concerns the effect of the pleadings on the admissibility[165 Conn. 4] of evidence. The defendant admitted in its answer an allegation 1 that on the date of the accident the plaintiff was the owner and holder of and the named insured in an automobile liability policy insuring the plaintiff and the Volkswagen. The plaintiff claims that the defendant thereby admitted the existence and full validity of the endorsement of January 10 and consequently was precluded from introducing any evidence tending to contradict the existence and validity of the disability income clause.

The defendant, however, specifically denied the next following paragraph of the complaint which affirmatively alleged that the terms of the policy obligated the defendant to pay benefits by virtue of the disability income clause. 2 The only logical construction of the pleading in these circumstances compels the conclusion which the trial court reached that the defendant admitted that at the time of the accident an insurance policy was in force between the parties, but that the specifie allegation that the particular disability income coverage clause was in effect was disputed and denied. 3 In this state of the pleading the

Page 586

defentant was clearly not precluded[165 Conn. 5] by its admission that a policy was in existence from introducing evidence to support its express denial of the plaintiff's affirmative allegation that the disability income clause was in effect at the time of the accident. See, e.g., Brockett v. Jensen, 154 Conn. 328, 336, 225 A.2d 190; Pluhowsky v. New Haven, 151 Conn. 337, 349, 197 A.2d 645.

Relying on such as DuBose v. Carabetta,161 Conn. 254, 260, 287 A.2d 357, and Alderman v. Hanover Insurance Group,155 Conn. 585, 236 A.2d 462, Goldner v. Polak, 108 Conn. 534, 537, 143 A. 882, the plaintiff further asserts that the evidence offered by the defendant and admitted by the court to show that the disability income coverage was not in effect was inadmissible in the absence of a special defense alleging fraud, mutual mistake or...

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    ..." 'The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried....' " Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973). It is clear from the record that the plaintiff's substitute complaint sufficiently alerted the defendant, as well as ......
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