Travelers Ins. Co. v. Namerow

Citation261 Conn. 784,807 A.2d 467
Decision Date22 October 2002
Docket Number(SC 16375)
CourtSupreme Court of Connecticut

Sullivan, C. J., Borden, Norcott, Katz, Vertefeuille, Zarella and Flynn, Js.

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).



The defendants, Robert Namerow and Barbara Namerow, appealed from the judgments of the trial court 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 homeowners insurance policy.1 The defendants contended 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 claimed did not meet the requirements of the business records exception to the hearsay rule. In a decision released on September 4, 2001, this court concluded that the civil arson defense had not been implicated and declined to review the defendants' unpreserved evidentiary claim that the trial court had abused its discretion. Travelers Ins. Co. v. Namerow, 257 Conn. 812, 823, 832, 778 A.2d 168 (2001). Accordingly, we affirmed the judgments of the trial court.2 Id., 832.

Thereafter, the defendants filed a motion for reconsideration or reconsideration en banc, addressed solely to the issue of whether the pleadings, in conjunction with the insurance policy at issue, had raised sufficiently the civil arson defense and whether motive was an element of the defense that the insurer was required to prove in order to prevail at trial. We granted the motion for reconsideration en banc and added to the panel Justices Borden and Zarella, who read the briefs and the record, and listened to the tape recording of the oral arguments. Following reconsideration, we now conclude that the civil arson defense did apply but that, because motive is not an element of that defense, the trial court's instructions were not improper.3 Accordingly, we affirm the trial court's judgments. The record discloses the following undisputed facts. On March 19, 1994, the plaintiff issued a homeowners insurance policy (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 homeowners 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.

Following the fire, 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 the policy, alleging that the defendants were not covered under the policy because the loss had been caused by an act committed by or at the direction of the defendants with the intent to cause such loss. Thereafter, the plaintiff amended its complaint to seek the amount paid to Prudential Home Mortgage Company4 under the mortgage clause of the policy as additional damages.5 The defendants denied the plaintiff's allegations and filed a separate 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, as well as claims for damages for violations of 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.

After the fire, the defendants at all times maintained that the fire had begun accidentally in their Mercedes-Benz automobile that had been parked in their garage. Barbara Namerow, who was home alone when the fire started, testified that she heard "exploding noises" coming from the garage. She then looked into the garage and noticed dark smoke coming from the Mercedes-Benz. She first telephoned her husband, then called the police and exited the house. Police and fire personnel arrived at the house soon afterward, followed by Robert Namerow. After he had arrived on the scene of the fire, Robert Namerow reported the damage to their insurance agent, who in turn notified the plaintiff. The plaintiff sent Richard Sweeney, one of its claims representatives, to visit the defendants' house on the day of the fire. On the basis of the defendants' statements that the fire was accidental and the provisions of the policy, Sweeney issued the defendants an advance in the amount of $10,000. The defendants thereafter received two additional advances for $15,000 and $25,000 on February 13, 1995, and March 10, 1995, respectively.

Also on February 3, 1995, the 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 had originated in the garage where the defendants' automobiles had been parked. Thereafter, they removed the defendants' destroyed Mercedes-Benz and Subaru automobiles from the garage and towed them to a facility for further investigation. On February 6, 1995, investigators for the plaintiff and state fire marshal personnel went to the facility and examined the Mercedes-Benz. Upon completion of their inspection, they concluded that an overheating problem in the Mercedes-Benz' catalytic converter was a possible cause of the fire.

On February 10, 1995, the plaintiff's 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 automobile tested positive for the presence of gasoline. These results indicated, essentially, that the gasoline was fresh and, because of its unweathered condition, could not have come from the gas tank of the Mercedes-Benz. The plaintiff's investigators also examined the defendants' garage on February 17, 1995. During that visit, the investigators noticed the smell of gasoline emanating from the drains in the garage floor. On February 23, 1995, the plaintiff's investigators returned to the defendants' garage and obtained samples of the garage's concrete floor and the soil found underneath the garage floor drains. The test results of those samples also showed the presence of unweathered gasoline. The plaintiff's investigators concluded that the gasoline had been poured inside the garage prior to the fire. On the basis of those findings, the plaintiff concluded that the fire had been incendiary in nature and had been 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 had caused the fire either by igniting accelerants that had been spread throughout the garage or by directing someone else to ignite the accelerants. The defendants, however, maintained that the fire had started accidentally in the engine of the Mercedes-Benz while it was parked in the garage. In addition to the defendants' testimony and the testimony of the fire and police department personnel that had arrived at the scene of the fire and investigated the fire, both sides presented expert testimony regarding the timing of events surrounding the fire and its progression, the burn patterns of the fire, and whether the fire was incendiary in origin. The jury returned verdicts for the plaintiff in both actions and the trial court rendered judgments in accordance with those verdicts. This appeal followed.7

The defendants claim that the trial court improperly failed to instruct the jury, in accordance with their request to charge, and pursuant to Supreme and Appellate Court precedent, as to the civil arson defense, which the defendants maintain was required as a matter of law. Specifically, the defendants claim that the trial court improperly refused 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 in nature, that the defendants had the opportunity to cause the fire, and that the defendants had a motive for setting the fire. The defendants further contend that the evidence offered by the plaintiff with regard to the motive element of the arson defense was not sufficient to warrant the judgments in favor of the plaintiff and, therefore, those judgments must be reversed. The plaintiff claims, by contrast, that it had no obligation to establish the element of motive under the terms of the policy. The plaintiff contends...

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