Polansky v. CNA Ins. Co.

• Citation: 852 F.2d 626
• Decision Date: 04 May 1988
• Docket Number: No. 87-2086,87-2086
• Parties: 26 Fed. R. Evid. Serv. 344 Glenn POLANSKY, et al., Plaintiffs, Appellees, v. CNA INSURANCE COMPANY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 626

852 F.2d 626

26 Fed. R. Evid. Serv. 344

Glenn POLANSKY, et al., Plaintiffs, Appellees, v. CNA INSURANCE COMPANY, Defendant, Appellant.

No. 87-2086.

United States Court of Appeals First Circuit.

Heard May 4, 1988.

Decided July 25, 1988.

Stephen M. Perry with whom Douglas K. Mansfield and Casner, Edwards & Roseman, Boston, Mass., were on brief, for defendant, appellant.

James S. Yakovakis, Manchester, N.H., with whom George W. Lindh was on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, and BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant CNA Insurance Company (CNA) seeks our review of the conduct of a jury trial at which it was found in breach of contract. The contract insured against damages to an apartment building owned by now bankrupt appellee, Londonderry Estates Realty Trust (the Trust), of which appellee Glenn Polansky was trustee. The contract also insured Polansky against liability to third parties for personal injuries. On New Year's Day, 1983, the apartment building partially burned, killing five people. A fire marshall concluded that the fire was of a suspicious but unknown origin. CNA concluded otherwise. It refused to reimburse Polansky, claiming that the policy was void because he had set the fire deliberately, had filed a fraudulent claim of damages, and through deception had impeded CNA's investigation of the conflagration. CNA believed that Polansky had set the fire to collect the insurance proceeds in order to rehabilitate the apartments. Based on the evidence presented at trial, the jury disagreed with these contentions and awarded the plaintiffs damages of $212,864.82. Due to the errors caused by the misconduct of plaintiff's counsel at trial, we rule that CNA is entitled to a new trial.

I

Plaintiff's counsel, throughout his closing argument, was unable to keep his opinions and personal beliefs to himself. The expression of his views included the following:

Well, it wasn't convincing to me. I hope it wasn't convincing to you. TR at 10-11 (referring to credibility of defendant's explanation of substance on key piece of physical evidence).

I say to you there is absolutely no way, in my opinion, that they would have agreed. TR at 10-18 (referring to possibility that mortgagees would have agreed to allow Polansky to use insurance money for repair of the apartment building, as CNA alleged Polansky had planned).

I don't believe Mr. Visocchi with regard to the vandalism claim. TR 10-21 (referring to a witness who testified Polansky had approached him to vandalize other property owned by Polansky).

[They are saying he] went up to the Londonderry Estates in the face of the fact that the mother came in [to testify]. She wouldn't--I would never ask her if she was coming in here to lie, and I knew anything about it, and this other gentlemen came in. They weren't coming in here to give an alibi. TR 10-27 (referring to the credibility of witnesses who vouched for Polansky's alibi of where he was when the fire started).

CNA is making it its business because they want to influence you with regard to [Polansky's illegal use of tenant deposit money], and show improprieties on his part, but I gather, in my opinion, it doesn't do that. TR 10-30.

[Y]ou'll find that CNA's motives, I think, were clear and calculated. TR 10-33.

On four occasions, CNA objected. Twice, the court stated simply that it would inform the jury that argument of counsel is not evidence; on the last two occasions it apparently ignored the exception.

This was error. Courts have long recognized that statements of counsel's opinions or personal beliefs have no place in a closing argument of a criminal or civil trial. See, e.g., United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); United States v. Cresta, 825 F.2d 538, 555 (1st Cir.1987); NLRB v. Friendly Ice Cream Corp., 677 F.2d 170, 171 n. 1 (1st Cir.1982); Olenin v. Curtin & Johnson, Inc., 424 F.2d 769 (D.C.Cir.1970). This elementary principle is embodied in Rule 3.4 of the Model Rules of Professional Conduct, Disciplinary Rule 7-102(A)(5) and Ethical Consideration 7-26 of the Model Code of Professional Responsibility of the American Bar Association ¹ and in Disciplinary Rule 7-106(C) of the Code of Professional Responsibility of the New Hampshire Bar Association. ² The latter code governs attorney's conduct within the New Hampshire District Court. See New Hampshire District Court Rules, Rule 4. The rule helps prevent putting relative credibility of counsel at issue or allowing counsel to imply that he possesses knowledge not shared with the jury. Cresta, 825 F.2d at 555; Ethical Consideration 7-23. Alone, a blanket instruction from the court that argument of counsel is not evidence will not rectify a violation of this rule. United States v. Gonzalez Vargas, 558 F.2d 631, 633 (1st Cir.1977). We will be particularly reluctant to condone such behavior of counsel when, as here, there has been timely objection, no provocation by the opposition, and no "timely curative instruction directed particularly to [counsel's] comments." Id. The court erred by not dealing promptly with counsel's remarks, upon timely objection by opposing counsel, and informing offending counsel that his expression of personal beliefs and opinions would not be tolerated by the court. See Young, 470 U.S. at 8, 105 S.Ct. at 1043.

II

Polansky's counsel also made extensive reference, during opening and closing statements, to his conclusion that the reason CNA was defending the suit was because it did not want to pay the families of those who died in the fire. These families were not parties to the suit and this argument was made for clearly inflammatory purposes. During his opening statement he made the following remarks:

[T]he only party that can really gain in this matter from not making payment under this insurance policy to Londonderry Estates is the insurance company. And let me tell you why, because it's a little deceptive. The evidence is going to show that there were five deaths, and these people have claims pending against the insurance company. They're claiming--and it's part of the claim in this suit, that if you find that Mr. Polansky was involved in this fire loss, as they claim, all the claims that they are making, that the policy is void. And if that policy is void, guess what happens? There's no recovery by any--under any of these civil claims. TR 1-53.

But I think that what they're doing in this case is worse, because they're using Mr. Polansky for their own benefit and gain, not paying him, holding a policy void so they don't have to pay on any of the civil claims. TR 1-54.

At the close of this argument, CNA moved for a mistrial. In the alternative, it asked that it be allowed to introduce evidence of its actual motives for opposing the claim. This referred to evidence that Polansky's counsel had successfully excluded, including evidence of prior criminal investigations of Polansky, which would be probative of CNA's state of mind when it decided to investigate the legitimacy of Polansky's claim. The judge denied CNA's motion and instead stated only that it would instruct the jury that a counsel's opening statement is not evidence.

At the end of closing argument, Polansky's counsel again referred to the "death claims."

I mention again that this fire occurred, five deaths, and all of the agencies investigating, they had CNA's reports, and none of them are making the claim that Mr. Polansky set the fire. Why? And I've asked myself this since I accepted this bankruptcy claim from the Court way back when. I think there's only one answer. That there was no basis for it, and this--if there is any basis, why is CNA making that claim, and I say that they're making it because they have their own reasons why they want to make it. One is they don't have to pay L.F. Richardson; two, they don't have to pay the bankruptcy court; three, they don't have to pay any of the death claims.

* * *

* * *

They have a million dollar liability limit on that death claim, that [no payment on the policy] would save, and they're clear-cut liability claims. There's no smoke alarms [in the burned building]. This is evidence in this court. No electrical problems. Carpeting, as [a witness] said, extremely hazardous. My opinion that the paddings used in this installation presented extreme hazard as far as flame appeal is concerned, and extremely hazardous hidden dangers in their emission of deadly gasses. Can you blame them for not wanting to defend the civil cases? Can you blame them? TR 10-31-32.

I respectively (sic) request your verdict for the ... plaintiffs as a whole, and that your--and the preservation of those claims of the liability, and to the liability--under the liability actions.... Id. TR 10-35-36.

We note first that the "death claims" were completely irrelevant to this case. We disagree with Polansky that the existence of those claims was an appropriate topic of discussion because it tended to show CNA's "motive" for resisting payment under Polansky's insurance policy. CNA did not dispute the fact that it had not paid the claim and thus had refused to honor the insurance contract with Polansky. The only issue before the jury was whether CNA was justified in so doing because Polansky had set the fire or otherwise had defrauded the insurance company. CNA's "motive" had absolutely nothing to do with the weight of the evidence regarding Polansky's actions. The relevance of CNA's motive to any issue in this case disappeared when, prior to trial, Polansky dropped his bad faith claim against the insurance company.

In fact, Polansky dropped the bad faith claim because, as his counsel admitted at oral argument, he did not want to allow CNA the opportunity to bring in evidence about why it had initially suspected Polansky. The record strongly suggests that he then attempted to reap a double benefit by preventing CNA from presenting evidence...