Travelers Ins. Co. v. Namerow

• Decision Date: 04 September 2001
• Docket Number: (SC 16375)
• Court: Connecticut Supreme Court
• Parties: TRAVELERS INSURANCE COMPANY v. ROBERT NAMEROW ET AL. ROBERT NAMEROW ET AL. v. TRAVELERS INSURANCE COMPANY

257 Conn. 812

778 A.2d 168

TRAVELERS INSURANCE COMPANY v. ROBERT NAMEROW ET AL.

ROBERT NAMEROW ET AL. v. TRAVELERS INSURANCE COMPANY

(SC 16375)

Supreme Court of Connecticut.

Argued November 1, 2000.

Officially released September 4, 2001¹.

Norcott, Katz, Sullivan, Vertefeuille and Flynn, Js.² Austin J. McGuigan, with whom were Joseph B. Burns and, on the brief, Glenn E. Coe and Jennifer Weitz-Clancy, for the appellants (Robert Namerow and Barbara Namerow).

Frank H. Santoro, with whom were Frederick B. Tedford and, on the brief, Christopher J. Coxon, for the appellee (Travelers Insurance Company).

Opinion

VERTEFEUILLE, J.

The defendants, Robert Namerow and Barbara Namerow, appeal from the judgments for the plaintiff, Travelers Insurance Company, rendered after a jury trial in this consolidated action to determine the liability of the parties pursuant to a homeowner's insurance policy.³ The defendants contend that the trial court improperly: (1) failed to instruct the jury on the elements of the civil arson defense; and (2) abused its discretion by admitting into evidence a document that the defendants claim does not meet the requirements of the business records exception to the hearsay rule. We disagree and, therefore, affirm the judgments of the trial court.⁴ The plaintiff brought the first of these two actions against the defendants to recover certain cash advances, totaling $50,000, that it had paid to the defendants pursuant to a homeowner's insurance policy (policy) issued by the plaintiff. The plaintiff alleged in its complaint that the defendants were not covered under the policy because the loss, which resulted from a fire in the defendants' house, was caused by an act committed by or at the direction of the defendants with the intent to cause such loss. In response, the defendants filed an answer denying the plaintiff's allegations.

Subsequently, the plaintiff paid $374,577.83 to the defendants' first mortgagee on the property at the time of the fire, Prudential Home Mortgage Company, in accordance with the policy's mortgage clause. The mortgage clause required the plaintiff to pay the defendants' mortgage holder for the loss to the house, to the extent of the mortgage holder's interest in the property. This clause further required the plaintiff to pay the loss to the mortgage holder regardless of whether the plaintiff had denied the defendants' claim under the policy. The plaintiff amended its complaint to seek as additional damages the amount paid to Prudential Home Mortgage Company under the mortgage clause.⁵

Thereafter, the defendants filed the second action against the plaintiff, setting forth their claims in a thirteen count complaint. The complaint contained, inter alia, claims arising under the policy for breach of contract, bad faith, breach of fiduciary duties, intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, invasion of privacy, intentional misrepresentation, negligent misrepresentation, and damages under the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; and the Connecticut Unfair Insurance Practices Act. General Statutes § 38a-815 et seq. In response, the plaintiff filed an answer denying each of the defendants' claims. The plaintiff also filed thirteen special defenses asserting, inter alia, that the policy did not cover the defendants' loss because the defendants either expected or intended the loss.⁶ The plaintiff also filed a three count counterclaim for, inter alia, bad faith and vexatious litigation. Thereafter, the cases were consolidated and tried to the jury.

The jury reasonably could have found the following facts. On March 19, 1994, the plaintiff issued the homeowners policy to the defendants. On February 3, 1995, a fire destroyed most of the defendants' house located at 217 Deercliff Road in Avon. At the time of the fire, the policy was in full effect. The policy provided coverage for loss and damage to the defendants' house and personal property caused by fire, and coverage for additional living expenses incurred by the defendants in the event that their house became uninhabitable. The policy, however, excluded from coverage any loss caused directly or indirectly by any act committed by or at the direction of the defendants with the intent to cause a loss.

At all times after the fire, the defendants maintained that the fire had begun accidently in their Mercedes-Benz automobile parked in their garage. Barbara Namerow, who was home alone when the fire started, testified that she heard "exploding noises" coming from the garage and, when she looked into the garage, she saw dark smoke coming from the Mercedes-Benz. She telephoned her husband, then the police, and exited the house. Police and fire personnel arrived soon afterward, and Robert Namerow arrived thereafter.

After arriving on the scene of the fire, Robert Namerow notified their insurance agent of the incident, who then notified the plaintiff. In response, Richard Sweeney, a claims representative for the plaintiff, visited the defendants' house on the day of the fire. On the basis of the defendants' statements that the fire was accidental and pursuant to the provisions of the policy, Sweeney issued the defendants an advance in the amount of $10,000. Sweeney subsequently issued the defendants two additional advances for $15,000 and $25,000 on February 13, 1995, and March 10, 1995, respectively.

On the same day of the fire, Sergeant James Wolfe and Detective William Flanagan of the state fire marshal's office investigated the fire at the defendants' house. They determined that the fire originated in the garage and thereafter removed the defendants' destroyed Mercedes-Benz and Subaru automobiles from the garage and towed them to a facility to inspect them further. On February 6, 1995, investigators for the plaintiff and personnel from the state fire marshal's office went to the facility and examined the Mercedes-Benz automobile. They concluded that an overheating problem in the automobile's catalytic converter was a possible cause of the fire.

On February 10, 1995, the plaintiffs investigators returned to the facility to examine the Mercedes-Benz a second time and to take samples. The samples that the plaintiff had removed from the interior of the Mercedes-Benz tested positive for the presence of unweathered gasoline. These results indicated that the gasoline was fresh and, because of its unweathered condition, could not have come from the gas tanks of either the Mercedes-Benz or the Subaru automobile. The plaintiffs investigators also conducted an examination of the defendants' garage on February 17, 1995, at which time the investigators noticed the smell of gasoline emanating from the drains in the garage floor. On February 23, 1995, the plaintiffs investigators returned to the defendants' garage a second time and obtained samples of the garage's concrete floor and the soil found underneath the garage floor drains. The results of these samples also showed the presence of unweathered gasoline. The investigators concluded that the gasoline had been poured in the garage prior to the fire. On the basis of these findings, the plaintiff concluded that the fire was incendiary in nature and was started either by the defendants or at their direction, with the intent to cause a loss.

At trial, the parties disputed the origin of the fire and whether the defendants' damages were covered under the policy. The plaintiff contended that the defendants caused the fire by either igniting or directing someone to ignite accelerants that were spread throughout the garage. The defendants maintained that the fire started accidentally in the engine of the Mercedes-Benz while it was parked in the garage. In addition to the testimony of the defendants and of the fire and police department personnel that had arrived at the scene of the fire or investigated the fire, both parties presented expert testimony regarding the timing of events surrounding the progression of the fire, the burn patterns of the fire, and whether the fire was incendiary in origin. The jury found for the plaintiff in both actions and the trial court rendered judgments in accordance with the jury verdicts. This appeal followed.⁷ We affirm the judgments of the trial court. Additional facts will be set forth as necessary.

I

The defendants first claim that the trial court improperly failed to instruct the jury in accordance with the defendants' request to charge the jury on the civil arson defense, which the defendants maintain was required as a matter of law. Specifically, the defendants claim that the trial court ignored Supreme Court and Appellate Court precedent by refusing to charge the jury that, in order for the plaintiff to prevail, it must prove by a preponderance of the evidence that the fire was incendiary, that the defendants had the opportunity to cause the fire, and that the defendants had a motive for setting the fire. Further, the defendants contend that the evidence offered by the plaintiff with regard to the motive element of the civil arson defense was not sufficient to warrant judgments in the plaintiff's favor and, thus, those judgments must be reversed. We conclude that the plaintiff did not assert the special defense of civil arson but instead denied the defendants' claim based on the provisions of the policy. Accordingly, we affirm the trial court's judgments.

The following procedural history is relevant to our resolution of this claim. The defendants moved for a directed verdict at the close of the plaintiffs case, arguing that the plaintiff had failed to establish the elements of the civil arson defense. Specifically, the defendants claimed that the plaintiff had made no showing whatsoever that the defendants had a motive to set fire to their house, as is required in a civil arson case. The plaintiff responded that the civil arson defense was not...