Rego v. Connecticut Ins. Placement Facility

• Decision Date: 24 July 1990
• Docket Number: No. 8136,8136
• Citation: 577 A.2d 1105,22 Conn.App. 428
• Court: Connecticut Court of Appeals
• Parties: Zelia S. REGO v. CONNECTICUT INSURANCE PLACEMENT FACILITY.

Page 1105

577 A.2d 1105

22 Conn.App. 428

Zelia S. REGO v. CONNECTICUT INSURANCE PLACEMENT FACILITY.

No. 8136.

Appellate Court of Connecticut.

Argued April 30, 1990.

Decided July 24, 1990.

Stephen E. Goldman, with whom was Linda Morkan, Hartford, for appellant (defendant).

Joseph A. Mengacci, Waterbury, for appellee (plaintiff).

Before SPALLONE, LAVERY and CRETELLA, JJ.

CRETELLA, Judge.

The defendant appeals from a judgment rendered after a jury verdict in favor of the plaintiff to recover the proceeds of a fire insurance policy issued by the defendant covering two properties owned by the plaintiff. The complaint was brought in two counts, one for each of the properties damaged by the fire. To each count, the defendant raised two special defenses that would have excluded coverage, namely, (1) concealment or fraud and (2) arson by or with the assistance of the plaintiff. The defendant claims that the trial court's charge to the jury recited an incorrect standard for the burden of proof necessary to establish the two special defenses and failed to apprise the jurors that misrepresentations other than those relating to the cause and origin of the loss were material to the allegations of concealment or fraud.

We affirm the trial court's judgment.

I

The trial court charged the jury that the defendant had the burden of proving the special defense of arson by a fair preponderance of the evidence and of proving the special defense of concealment or fraud by clear and convincing evidence. The defendant contends that the burden of proof on the special defense of concealment or fraud should have been by a fair preponderance of the evidence. It has been repeatedly stated that the special defense of arson must be proven by a fair preponderance of the evidence, whereas allegations of fraud or concealment must be proven by clear and convincing evidence. Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 182, 540 A.2d 693 (1988); Fichera v. Mine Hill Corporation, 207 Conn. 204, 215, 541 A.2d 472 (1988); Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).

In its special defense, the defendant used the words "concealment or fraud," which language came from the insurance policy itself, and also alleged that the plaintiff "intentionally concealed and misrepresented material facts." This is not an allegation of negligent misrepresentation, which would require proof by a preponderance of the evidence, but, rather, of intentional misrepresentation and, as such, rises to the level of an allegation of fraud. Accordingly, the charge requiring that the allegation of concealment and fraud be proved by clear and convincing evidence was correct.

II

The defendant's second claim is that the court's charge to the jury on the special defense of concealment or fraud was defective in that it limited the issues before the jury to whether the plaintiff had made any misrepresentations or concealments that were related to the cause of the...