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Riley v. Travelers Home & Marine Ins. Co.

Court of Appeals of Connecticut

May 23, 2017

C. ANDREW RILEY
v.
THE TRAVELERS HOMEAND MARINE INSURANCE COMPANY

          Argued January 19, 2017

         Appeal from Superior Court, judicial district of Hartford, Complex Litigation Docket, D. Sheridan, J.

          Linda L. Morkan, with whom were Daniel F. Sullivan and, on the brief, Jonathan E. Small, for the appellant-cross appellee (defendant).

          Proloy K. Das, with whom were Kristen L. Zaehringer and Leonard M. Isaac, and, on the brief, Sarah Gruber and James J. Nugent, for the appellee-cross appellant (plaintiff).

          DiPentima, C. J., and Sheldon and Bishop, Js.

          OPINION

          SHELDON, J.

         In this case arising from a fire at the home of the plaintiff, C. Andrew Riley, both parties appeal from the judgment of the trial court awarding damages and prejudgment interest to the plaintiff against his homeowners insurer, the defendant, Travelers Home and Marine Insurance Company, upon the jury's verdict for the plaintiff on claims of breach of contract and negligent infliction of emotional distress. The defendant claims initially that the evidence adduced at trial was insufficient to support the jury's verdict in favor of the plaintiff on his claim of negligent infliction of emotional distress, and thus that the trial court erred in denying its motions for judgment notwithstanding the verdict, to set aside the verdict, and for remittitur. The defendant also claims that the court erred in allowing the plaintiff's two expert witnesses to testify over its objection at trial because one of those witnesses was not qualified to render an expert opinion in this case and neither witness had based his expert opinions on a scientifically reliable methodology. In his cross appeal, the plaintiff claims that the trial court abused its discretion in awarding him prejudgment interest pursuant to General Statutes § 37-3a at the rate of 3 percent instead of 10 percent. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On February 26, 2009, afire destroyed a significant portion of the plaintiff's home in Pomfret, in which he and his wife, Barbara Riley, had been living and raising their children for more than twenty-five years. On the morning of the fire, the plaintiff was working on a project in a room on the first floor of his home when he received a telephone call from ADT Security Services, his home security service provider, notifying him that it had received an alert that there was a fire in his home. The plaintiff, initially in disbelief, immediately proceeded to the second floor of his home to look for the cause of the alert. Upon ascending the stairs, he saw flames through the open door of a room at the top of the stairs that was used as an office and exercise room, in which he had been exercising earlier that morning. Seeing that the room was engulfed in flames, he initially attempted to close the door but could not get it to stay closed. He thus took an old bathrobe from the adjacent bedroom and draped it over the door to keep it closed. In so doing, the plaintiff sustained a minor burn on his arm. Finally, after retrieving his wife's jewelry from their bedroom, the plaintiff ran back downstairs, confirmed with ADT that there was a fire in his home, and went outside to wait for assistance. Upon the arrival of multiple fire companies, the fire was promptly extinguished. As a result of the fire, the room in which the fire had occurred was essentially destroyed, along with most of its contents, including all of the family's photograph albums, a Mother's Day card to Barbara Riley, a sonogram photo of one of their children, and an uncashed check in the amount of $30, 000, which Barbara Riley had received as a work bonus. Although the fire was contained in that one room on the second floor, it caused extensive smoke damage throughout the plaintiff's home.

         The town of Pomfret fire marshal, Adam Scheuritzel, arrived at the scene of the fire shortly after it was extinguished. He conducted an investigation of the cause and origin of the fire, using a video camera attached to his helmet to record his investigation. He also took several still photographs of the scene. In addition to inspecting the scene of the fire, Scheuritzel spoke to and obtained written statements from the plaintiff and several firefighters who had responded to the scene. Scheuritzel observed a kerosene heater and a separate container of kerosene in the exercise room where the fire had occurred, but he concluded that the kerosene had played no role in causing the fire. Scheuritzel concluded instead that the cause of the fire had been accidental, having been started by an electrical problem inside the wall of the exercise room.

         The plaintiff immediately notified the defendant of the fire. The defendant, which had issued a homeowner's insurance policy containing standard provisions insuring the plaintiff's property for any loss due to fire, then initiated its own investigation of the cause and origin of the fire, and assigned one of its own employees, John E. Schoener, a trained and certified fire investigator, to conduct that investigation. Schoener concluded that ‘‘the fire originated in the vapors of an ignitable liquid (kerosene) that was poured throughout the floor area and on boxes of stored contents within the room of fire origin. All accidental causes were eliminated as a cause of this fire. The cause of this fire is classified as an incendiary fire.''

         By letter dated May 26, 2009, the defendant denied the plaintiff's claim for insurance coverage, stating that it had ‘‘concluded that [the plaintiff] intentionally caused the fire which resulted in this claim.''[1] The defendant later sent another letter to the plaintiff, dated June 16, 2009, ‘‘to advise [him] of an additional basis for the denial of [his] claim.'' The letter stated, ‘‘During the investigation of this loss, [the plaintiff] concealed and/ or misrepresented material facts and circumstances concerning the loss and made material false statements relating to this loss and to his insurance coverage.''[2]Although the defendant denied the plaintiff's claim, it accepted the claim of Barbara Riley for personal property of herself and other family members, and additional living expenses incurred while repairs were being made to the residence.

         On October 18, 2011, the plaintiff initiated this action against the defendant, claiming breach of contract and negligent infliction of emotional distress. In response, the defendant denied the plaintiff's claims and, by way of special defense, alleged, inter alia, that the plaintiff had intentionally caused the fire to his home and had ‘‘concealed or misrepresented material facts or circumstances, engaged in fraudulent conduct, and/or made materially false statements regarding the fire and insurance claim.'' The plaintiff denied the defendant's special defenses.

         The case was tried to a jury in June, 2014. At the conclusion of the plaintiff's case-in-chief, the defendant orally moved for a directed verdict on the plaintiff's claim of negligent infliction of emotional distress. The trial court reserved judgment on that motion and proceeded with the trial. On June 23, 2014, the jury returned a verdict in favor of the plaintiff. By way of special interrogatories, the jury rejected the defendant's special defenses and found that the defendant had failed to prove that the plaintiff had intentionally caused the fire to his home or that he had ‘‘intentionally concealed or misrepresented material facts or circumstances, or engaged in fraudulent conduct, or made material false statements relating to his insurance . . . .'' The jury found that the plaintiff had proved that the defendant breached his homeowner's insurance contract by denying his claim for coverage and refusing to pay for his losses from the February 26, 2009 fire, and that he had ‘‘sustained [damages] as a result of the [defendant's] negligent infliction of emotional distress . . . .'' The jury awarded the plaintiff $504, 346.10 in damages for breach of contract and $1, 000, 000 in damages for negligent infliction of emotional distress. The defendant thereafter filed motions for judgment notwithstanding the verdict, to set aside the verdict, and for remittitur. The court denied those motions and these appeals followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the evidence adduced at trial was insufficient to support the jury's verdict in favor of the plaintiff on his claim of negligent infliction of emotional distress. In support of that claim, the defendant argues (1) that the court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict on the ground that the court, in deciding both motions, was limited to the evidence adduced during the plaintiff's case-in-chief, which was insufficient to establish the plaintiff's claim; (2) that even if the trial court were not so limited, it should have set aside the verdict because the plaintiff failed to prove that he suffered severe emotional distress and that his emotional distress was proximately caused by conduct of the defendant in addition to its denial of his claim for coverage; and (3) that, in any event, the court should have granted its motion for remittitur because, ‘‘[g]iven the paucity of evidence of emotional distress, the damage award shocks the conscience.'' We disagree.

         On July 3, 2014, the defendant filed a motion for judgment notwithstanding the verdict, a motion to set aside the verdict, and a motion for remittitur. By way of memorandum of decision filed September 26, 2014, the trial court denied all of the defendant's postverdict motions. The defendant now challenges the denial of its postverdict motions on the ground that the evidence was insufficient to support the jury's verdict on the plaintiff's claim of the negligent infliction of emotional distress.

         Our Supreme Court has stated ‘‘that directed verdicts are disfavored because [l]itigants have a constitutional right to have factual issues resolved by the jury. . . . Accordingly, [o]ur review of a trial court's [decision] to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. . . . [I]n reviewing the trial court's decision to render judgment notwithstanding the verdict, we may affirm that decision only if we find that the jury could not reasonably and legally have reached [its] conclusion. . . . The question is not whether we would have arrived at the same verdict, but whether, when viewed in the light most favorable to sustaining the verdict, the evidence supports the jury's determination. . . . A trial court may only grant a motion for judgment notwithstanding the verdict if the jury reasonably and legally could not have reached any other conclusion . . . and must deny such a motion where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion . . . . We review a trial court's decision on a motion for judgment notwithstanding the verdict for abuse of discretion.'' (Citations omitted; emphasis in original; internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 862- 63, 124 A.3d 847 (2015).

         Similarly, ‘‘[t]he standards governing our review of a sufficiency of evidence claim are well established and rigorous. . . . [I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. . . . In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it. . . .

         ‘‘We apply this familiar and deferential scope of review, however, in light of the equally familiar principle that the plaintiff must produce sufficient evidence to remove the jury's function of examining inferences and finding facts from the realm of speculation. . . . A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that they did in fact reach.'' (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119 (2003).

         ‘‘[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.'' (Internal quotation marks omitted.) Id., 446. In other words, ‘‘[t]o prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress.'' (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 771, 54 A.3d 221 (2012). With these principles in mind, we address the defendant's sufficiency arguments in turn.

         A

         In challenging the sufficiency of the evidence to support the jury's verdict in favor of the plaintiff on his claim of negligent infliction of emotional distress, the defendant first argues that the trial court erred in rejecting that challenge without limiting itself to considering the evidence adduced in the plaintiff's case-in-chief. We disagree.

         The following additional procedural history is relevant to this claim. The plaintiff rested his case on June 10, 2014. Immediately thereafter, the defendant orally moved for a directed verdict on the plaintiff's claim for negligent infliction of emotional distress. The defendant argued in support of that motion that although the plaintiff's expert witness, Ronald R. Mullen, had testified as to the ‘‘standard of care'' for conducting a fire investigation, no evidence was adduced as to any deficiency in its investigation of the fire, and thus the plaintiff had failed to establish a prima facie case of negligence in investigating his claim for insurance coverage, or, thus, negligent infliction of emotional distress. In response, the plaintiff pointed to the testimony of Scheuritzel and Mullen, who attested to their respective conclusions as to the accidental cause and origin of the fire in the plaintiff's home, as well as the defendant's attempts to influence and coerce his experts to change their reports and support its claim of arson. Without reference to specific portions of Mullen's testimony, the plaintiff argued that Mullen had, in fact, pointed to inadequacies in the defendant's investigation. Following that brief argument by counsel, the court concluded: ‘‘[A]lthough I've expressed some concerns about the state of the pleadings and the evidence, it does seem to me there's sufficient evidence on this question, if not direct evidence, certainly reasonable inferences where I could reserve on that question pursuant to the Practice Book and we'll proceed to the defendant's case.'' The trial thus continued on to verdict, which, as previously noted, was returned in favor of the plaintiff.

         In its motion for judgment notwithstanding the verdict, the defendant renewed its motion for a directed verdict. The defendant argued in that motion: ‘‘During his case-in-chief, [the] plaintiff failed to present any evidence (other than the letter denying his insurance claim) that would permit the jury to reasonably conclude that [the defendant] is liable to him for the negligent infliction of emotional distress. [The] plaintiff chose not to offer expert testimony regarding the integrity of [the defendant's] fire origin and cause investigation, or to call [the defendant's] employees who conducted the investigation to demonstrate their alleged unreasonable or egregious misconduct in the investigation of the fire.'' The defendant further argued: ‘‘[W]hile [the] plaintiff developed additional evidence regarding [the defendant's] conduct on cross-examination of [the defendant's] employees who testified on behalf of the defense, this evidence and testimony cannot be considered in evaluating whether [the] plaintiff met [his] burden in [his] case-in-chief and in reaching a determination on [the defendant's] motion.''

         Although not precisely argued before the trial court, the defendant's references to the plaintiff's ‘‘case-in-chief'' can be construed to have raised its present claim that the court was confined to the evidence adduced during the plaintiff's case-in-chief when considering its motions for adirected verdict and for judgment notwithstanding the verdict. The law on this issue, however, is well settled.

         ‘‘[W]hen a trial court denies a defendant's motion for a directed verdict at the close of the plaintiff's case, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court's ruling. . . . The rationale for this rule is that, by introducing evidence, the defendant undertakes a risk that the testimony of defense witnesses will fill an evidentiary gap in the [plaintiff's] case. . . . On appeal in such cases, the question becomes whether . . . there is evidence in the entire record to justify submitting the matter to a trier of fact. . . . Although we have questioned the continuing viability of the waiver rule in the criminal context . . . we have never questioned its applicability in the civil context.'' (Emphasis in original; internal quotation marks omitted.) Elliott v. Larson, 81 Conn.App. 468, 471-72, 840 A.2d 59 (2004). Our Supreme Court has explained the logic of this rule as follows: ‘‘The waiver rule supports fact-finding and the ultimate truth seeking function of a trial . . . [because it] eliminates the bizarre result that could occur in its absence, namely, that a [judgment] could be reversed for evidentiary insufficiency, despite evidence in the record sufficiently establishing [liability].'' (Citations omitted.) State v. Perkins, 271 Conn. 218, 237-38, 856 A.2d 917 (2004). To reach a contrary conclusion, the Court explained, would result in ‘‘a perception of the . . . trial as a sporting event in which the rules of the game trump the search for truth.'' Id., 245.

         Here, because the defendant, after unsuccessfully moving for a directed verdict after the plaintiff rested, went on to present evidence on its claims that the plaintiff intentionally set fire to his house, engaged in fraudulent conduct and intentionally misrepresented or concealed material facts throughout the investigation as to the cause and origin of the fire, it is precluded by the waiver rule from claiming that the trial court was limited in its review of the sufficiency of the evidence to the evidence presented in the plaintiff's case-in-chief. Although the evidence presented by the defendant, which consisted almost exclusively of testimony of various employees of the defendant-evidence described by the defendant as ‘‘vitally important to [its] success on its special defenses''-had the effect of underscoring the inadequacies of its investigation of the fire, that was a risk the defendant assumed when it chose to present defense evidence at trial. Our case law, as quoted previously, makes it clear that the defendant is now bound by its choice to roll the proverbial dice by presenting its own evidence at trial. It therefore cannot claim error as to the trial court's prior denial, based solely upon the evidence presented in the plaintiff's case-in-chief, of its midtrial motion for a directed verdict.

         B

         The defendant next claims that the evidence adduced in the entire trial was insufficient to support the jury's verdict that the emotional distress allegedly suffered by the plaintiff was both proximately caused by the defendant and severe enough that it might have resulted in illness or bodily harm. We disagree.

         In its motion to set aside the verdict and for a new trial, the defendant, inter alia, ‘‘expressly incorporate[d] th[e] arguments [set forth in the simultaneously filed motion for judgment notwithstanding the verdict]'' and added that the plaintiff had also failed to present or elicit evidence of negligent infliction of emotional distress during the defendant's case. The defendant argued that, at most, the plaintiff had proved that the defendant had breached its contract ...


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