Pogo Holding Corp. v. New York Property Ins. Underwriting Ass'n

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COOKE
• Citation: Pogo Holding Corp. v. New York Property Ins. Underwriting Ass'n, 479 N.Y.S.2d 336, 62 N.Y.2d 969, 468 N.E.2d 291 (N.Y. 1984)
• Decision Date: 29 June 1984
• Parties: , 468 N.E.2d 291 POGO HOLDING CORPORATION, Appellant, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION, Respondent.

Page 336

479 N.Y.S.2d 336

62 N.Y.2d 969, 468 N.E.2d 291

POGO HOLDING CORPORATION, Appellant, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION, Respondent.

Court of Appeals of New York.

June 29, 1984.

Matthew Dollinger, Carle Place, for appellant.

Walter P. Kelly, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division 97 A.D.2d 503, 467 N.Y.S.2d 872 should be affirmed, with costs.

Appellant, Pogo Holding Corporation, brought suit to recover the proceeds of two fire insurance policies, in the amounts of $40,000 and $15,000, issued by respondent, New York Property Insurance Underwriting Association, covering two wood frame buildings owned by appellant in Far Rockaway, which sustained fire damage in September 1974. Respondent asserted as affirmative defenses that appellant willfully misrepresented the value of its property in its sworn proof of loss statements, and that appellant swore falsely and willfully misrepresented and concealed information relating to its property during the examinations under oath required by the policy. Under the policies at issue, which contained the standard New York fire insurance policy, either of the above, if proved, would be ground for voiding the policies (see Insurance Law, § 168, subd. 5).

At trial, evidence was introduced showing that while appellant, in its proofs of loss, claimed that the value of its damaged property was $55,000 (the full amount of the policies), a real estate expert called by respondent testified that the value of the premises before the fire was only $10,500. Additionally, one of its officers during appellant's examination under oath gave testimony as to the rental value of the properties which conflicted with lower rental figures set forth in a letter previously sent by appellant to respondent. Trial Term instructed the jury, without objection, as follows:

"I instruct you that false swearing or misrepresentation as to a material fact, if intentional, in the proof of loss or in the insured's examination under oath, will bar the plaintiff's recovery. It need not be shown that the defendant was injured by the falsity.

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"Now, an insured's motive in making a false statement is immaterial. If he knowingly makes a false statement intentionally to deceive will be implied on the principle that every person intends the natural consequences of his act.

"If you find that the defendant has established by a fair preponderance of the evidence that the plaintiff intentionally swore falsely or misrepresented as to a material fact in the proofs of loss or in its examination under oath, your verdict will be for the defendant." ¹

Trial Term also submitted a jury verdict form containing several interrogatories, again without objection. In response to the question, "Did plaintiff falsely swear to or misrepresent a material fact," the jury answered "Yes." The jury verdict form stated that if the answer to that question were "yes," the jury should "go no further and report your verdict for defendant." ²

Trial Term did not enter judgment on that verdict. Instead the court stated that appellant had earlier moved to dismiss respondent's affirmative defenses (one based on falsity in proofs of loss, and one based on falsity in examinations under oath) and that, since both defenses were embraced in the single interrogatory above, he would separate the defenses and ask the jury two more questions. Respondent's counsel objected to Trial Term's refusal to accept the verdict, and to the proposed additional questions, which he feared would be "almost indicating to that they did something wrong in the decision of the verdict that they did reach." Over that objection, Trial Term then instructed the jury to "determine whether the plaintiff falsely swore to or misrepresented a material fact either during its examinations before trial or in its proofs of loss or both." The jury returned a finding in narrative form to the...