Winter v. Aetna Cas. and Sur. Co.

• Decision Date: 20 September 1978
• Citation: 96 Misc.2d 497,409 N.Y.S.2d 85
• Parties: Damazy WINTER and Christine Winter, Plaintiffs, v. The AETNA CASUALTY AND SURETY COMPANY, Defendant.
• Court: New York Supreme Court

Page 85

409 N.Y.S.2d 85

96 Misc.2d 497

Damazy WINTER and Christine Winter, Plaintiffs, v. The AETNA CASUALTY AND SURETY COMPANY, Defendant.

Supreme Court, Special Term, Nassau County, Part V.

Sept. 20, 1978.

Ralph Berley, Bethpage, for plaintiffs.

Whitman & Ransom, Mineola, for defendant.

JAMES F. NIEHOFF, Justice.

This case presents issues which appear to be of first impression within the State of New York.

The plaintiffs, husband and wife, who own premises 136 No. 2nd Street in New Hyde Park as tenants-by-the-entirety seek to recover the sum of $28,581.60 for damage caused to their home by fire on November 10, 1976. The defendant insurer, while admitting that it issued to the plaintiffs its policy of insurance Number 73 SH7482247 PCA against fire damage in the sum of $32,000, declines to pay. The basis for its refusal is set forth in three affirmative defenses pleaded in the answer, to wit:

(1) that the fire in question was wilfully and maliciously set or caused to be set by plaintiffs or either one or the other of them;

(2) that plaintiffs rendered to defendant a paper purporting to be proof of loss in which plaintiffs swore falsely regarding certain material facts; and

(3) that at the time of the fire the hazard was increased by means within the knowledge or control of plaintiffs or either of them.

The case was tried on July 27, 1978. At the opening of the trial it was stipulated by the parties, with the approval of the Court, that the matter would be tried in a bifurcated fashion. Consequently, this decision deals only with the question of liability and to the extent that the second affirmative defense may relate to the amount of the claimed loss any determination with respect to said defense must be held in abeyance pending the trial of the issue of damages.

The following facts were developed on the trial.

The plaintiffs, who were married for 21 years at the time of the trial, were having marital troubles in November of 1976. On the morning of the fire, November 10th, they had a court appearance in the Family Court concerning the wife's application for an order of protection. After the hearing the husband went home and the wife remained behind to obtain the typed order from the Clerk of the Court. When he arrived home he was in an angry frame of mind because of the proceedings and, in his anger, drank more than a half quart of cognac in a period of from 12/2 to 2 hours. As he drank, his anger intensified and he determined to burn down the house. He found an empty gasoline can in the garage which he took to a local gas station. After the can had been filled, he returned home and spilled the gasoline in the garage and throughout the house. The fire followed shortly thereafter.

The insurer claims that the plaintiff husband set the fire or, at the very least, that he increased the hazard of fire by his actions.

The husband maintains that he did not set the fire. According to his testimony, which the Court accepts as true, he came to his senses and had second thoughts and instead of igniting the gasoline, he walked out of the house and drove away from the house with his dog in the car. He proceeded to Alley Pond Park in Queens where he fell asleep in his automobile. Later that day, he learned that there had been a fire in his house.

In the Court's judgment the evidence does not establish the defendant's first defense, namely, that the fire was wilfully set or caused to be set by one of the plaintiffs. While there is no doubt that plaintiff Damazy Winter deliberately spilled several gallons of gasoline throughout the house with the initial intention of setting fire to the house, the evidence does not support the conclusion that he ever ignited the gasoline. Rather, the credible evidence establishes that he left the house without igniting it. It may well be that the fire was caused by gasoline fumes coming into contact with the pilot light on the gas stove or by an electrical spark occurring when the refrigerator turned on. Hence, the first affirmative defense is stricken, as well as such part of the second affirmative defense as may relate to plaintiff's statement that the cause and origin of the loss were unknown to the assured and that the loss did not originate by any act, design or procurement on the part of the insured.

Although the evidence does not warrant a holding that Damazy Winter set the fire or caused it to be set it can hardly be denied that by his actions Mr. Winter materially and substantially increased the risk of fire in the premises.

The fire insurance policy (page 2) specifically provides that the " company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured;". Inasmuch as the hazard of fire was increased by means within the knowledge and control of the plaintiff Damazy Winter, it is clear that the defendant is not liable to said plaintiff and the defendant is entitled to enter judgment dismissing said plaintiff's complaint. However that may be, the question which must be answered and it is a vexatious one is whether or not the innocent insured, Christine Winter, is precluded from collecting under the insurance contract because of the acts of her joint tenant, her co-insured husband, Damazy Winter.

With respect to the key issue the respective positions of the parties are obvious. The plaintiff, Christine Winter, maintains that she is not barred from recovery under the fire insurance policy issued by the defendant Aetna despite her co-insured husband's wrongful acts, while the defendant argues that the co-insured husband's violation of the policy provision...