Pawlinski v. Allstate Ins. Co.

• Decision Date: 02 May 1973
• Citation: 165 Conn. 1,327 A.2d 583
• Court: Connecticut Supreme Court
• Parties: Stanley L. PAWLINSKI v. ALLSTATE INSURANCE COMPANY.

Page 583

327 A.2d 583

165 Conn. 1

Stanley L. PAWLINSKI v. ALLSTATE INSURANCE COMPANY.

Supreme Court of Connecticut.

May 2, 1973.

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 HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

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 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.

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 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 defentant was clearly not precluded 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 lack of consideration. This evidence consisted of the defendant's business records, testimony of the defendant's employees and evidence concerning the transactions between the plaintiff's wife and the defendant's agent following the accident. The defendant contends that this evidence was properly admitted under its denial of the allegations of the complaint with respect to disability coverage since it tended to establish facts inconsistent with the affirmative allegations of the complaint which the defendant had denied.

Admittedly the rules concerning what evidence may be introduced under a denial are somewhat complex. See Practice Book § 120; DuBose v. Carabetta, supra; Royal Homes, Inc. v, Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698; Biller v. Harris, 147 Conn. 351, 357-358, 161 A.2d 187; Caslowitz v. Roosevelt Mills, Inc., 138 Conn. 121, 123-125, 82 A.2d 808. An examination of the purpose and history of the special defense rule, however, helps to clarify its effect. 'The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way.' DuBose v. Carabetta, supra, 161 Conn. 261, 287 A.2d 360. The issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. Caslowitz v. Roosevelt Mills, Inc., supra, 138 Conn. 125, 82 A.2d 808; James, Civil Procedure § 4.7; 1 Stephenson, conn.Civ.Proc. (2d Ed.), p. 517, § 126(g). If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the 'new matter' must be affirmatively pleaded as a special defense. Biller v. Harris, supra; James, loc. cit.; 1 Stephenson, op. cit., pp. 518-519, § 127. Practice Book § 120 lists some of the defenses which must be specially pleaded and proved. Historically, the special defense plea is an outgrowth of the common-law plea of 'confession and avoidance.' , 1 Stephenson, op. cit., p. 521, § 127(c), explains the plea with an apt illustration: D is liable to P it a, b, and c are true unless d is also true. If d contradicts a, b, or c, then evidence of d may be admitted under a denial. If, however, the existence of d does independently destroys liability, then evidence independently destroys liability, then, evidence of d may be admitted only under a special defense. The distinction is significant since pleading is more than a mere procedural formality. Generally, it allocates the burden of proof on a particular issue. DuBose v. Carabetta, supra, 161 Conn. 262, 287 A.2d 357; 1 Stephenson, op. cit., p. 523, § 127(e); James, op. cit. § 4.10.

The crucial flaw in the plaintiff's contention is that, as we have noted, the endorsement dated January 10 was not incorporated in the complaint as permitted by § 91 of the Practice Book. When finally introduced at the trial the endorsement then had the status of an ordinary exhibit. 'An exhibit offered and admitted on the trial becomes evidence and should be treated in all respects as is other evidence.' Goldblatt v. Ferrigno, 138 Conn. 39, 41, 82 A.2d 152, 154. As framed by the pleadings, the action technically was not brought to enforce the terms of the endorsement, but rather to enforce an agreement and the endorsement was introduced in evidence in an endeavor to prove what were the...