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Ruggerio v. Harleysville Preferred Insurance Company

United States District Court, D. Connecticut

September 30, 2017

KATHLEEN RUGGERIO, Plaintiff,
v.
HARLEYSVILLE PREFERRED INSURANCE COMPANY, Defendant.

          MEMORANDUM OF DECISION

          ALVIN W. THOMPSON, UNITED STATES DISTRICT JUDGE.

         Plaintiff Kathleen Ruggerio brings two claims against defendant Harleysville Preferred Insurance Company. The Amended Complaint sets forth a claim for simple negligence (First Count) and a claim breach of an insurance contract (Second Count). At the final pretrial conference, the plaintiff sought permission to file a second amended complaint adding claims for negligent and intentional infliction of emotional distress and breach of the duty of good faith and fair dealing, in anticipation of evidence she expected to introduce at trial. The court decided that it would address that request in its decision after trial, so that it could take into account the evidence introduced at trial. For the reasons that follow, the plaintiff's request to add the additional claims is being denied and the court finds for the defendant on both the First and Second Counts.

         I. FACTS

         Plaintiff Kathleen Ruggerio (“Ruggerio”) was at all relevant times the owner of 52 Airline Road, Clinton, Connecticut (the “Property”). On and prior to April 20, 2010, Ruggerio had a contract for insurance with defendant Harleysville Preferred Insurance Company (“Harleysville”) under which the Property was covered (the “Policy”). The Policy was in full force and effect on April 20, 2010.

         On April 20, 2010, the Property was severely damaged by fire. The Clinton Fire Marshall, together with Sgt. Jeremiah Dunn and Detective John Sawyer of the Clinton Police Department, conducted an investigation into the origin and cause of the fire. They concluded that there were multiple points of origin and that the cause was arson.

         Sgt. Joseph Flynn also reported to the scene of the fire on April 20. The plaintiff arrived on the scene after being advised of the fire by Flynn. Sgt. Flynn and Sgt. Dunn interviewed the plaintiff on April 21st. She told them that she did not know who started the fire and that the last time she had been at the Property was the week prior to the fire. She mentioned that at that time she observed that a washer, a dryer and a generator had been taken. She also advised the officers that she had checked with all of her adult children and confirmed that none of them had taken these items.

         Bryan Taylor, an adjuster for Harleysville, was assigned to work on the plaintiff's claim on April 22, 2010. He learned on that day that the fire had been set. The next day, Taylor contacted the plaintiff and explained the insurance coverage and the procedures that would be followed. The plaintiff advised him that she had been staying at the Property off and on since September 2009, when her husband died. She also stated that 95% of her clothing was kept at the Property. Taylor concluded that the plaintiff needed an advance for her immediate needs, and he proceeded to make arrangements to have Harleysville advance $5, 000 to the plaintiff.

         The plaintiff also informed Taylor that when she was at the Property several days prior to the fire, she saw that the rear basement door had been kicked in and a washer, dryer and generator had been taken. She stated that she had not contacted the police because she wanted to first check with her adult children to see if any of them had removed the items, but that she had reported the break-in to the police after she learned of the fire on April 20, 2010. She told Taylor that although she had filed the police report she was not sure she would file a claim for the break-in and theft. Taylor thought the plaintiff appeared to be distraught.

         On April 23, Sgt. Flynn determined that a generator had been pawned by the plaintiff's son-in-law, Anthony D'Agostino in January of 2010; D'Agostino is married to one of Ruggerio's daughters, Kathleen Shirley Ruggerio (“Kat Ruggerio”). When Sgt. Flynn spoke to Anthony D'Agostino about the pawned generator, D'Agostino said it was a different generator than the one that had been reported stolen from the Property.

         On April 27, Taylor met with the plaintiff and one of her friends, and he also met with Harleysville's investigator, Dominick Buccafurri. On April 28, Taylor made a note in the claims file that relatives of the plaintiff were persons of interest with respect to the arson but the plaintiff herself was not. Taylor's entry in the claims file on April 28 also reflects his observation that the plaintiff seemed “out of it” and could not concentrate on basic questions. Taylor felt he needed to explain twice to the plaintiff the coverage and the procedures that would be followed and do so in the presence of her friend.

         While Taylor was at the Property on April 27, the plaintiff informed Taylor that she would like to also make a claim for the theft of the washer, dryer and generator. She informed Taylor that she had waited until then to report these items missing because she wanted to check with all of her adult children to find out if any of them had removed these items from the Property, as opposed to them being stolen. The plaintiff told Taylor that she had determined that none of her children had taken these items so she wished to submit a claim with respect to them.

         The plaintiff advised Sgt. Flynn that she had put in a claim with her insurance company for the damage to the Property caused by the fire, as well as a claim for the washer, dryer and generator. She informed Sgt. Flynn that Harleysville was her insurance company. Sgt. Flynn contacted Bryan Taylor at Harleysville, and on April 27, 2010 Taylor confirmed that the plaintiff had made a claim for the damage to the house as well as a claim for the washer, dryer and generator.

         Then, on May 1 the plaintiff sent an e-mail to Taylor informing him that there was no need to file a claim for the washer, dryer and generator because she had found out what happened to those items and they had not been stolen.

         On May 5, Sgt. Flynn spoke again with Anthony D'Agostino after confirming that the generator sold at the pawn shop matched the description of the one that had been stolen from the Property. D'Agostino admitted that he had taken the items from the Property but stated that he had been given permission by the plaintiff to take them. He said he, his wife Kat and the plaintiff had lied to the police about Anthony D'Agostino taking the items because the items had been promised to another family member. After speaking with Anthony D'Agostino, Sgt. Flynn contacted the plaintiff, who told him that she was aware that D'Agostino and her daughter Kat had taken the washer, dryer and generator. She indicated to Flynn that she had given them permission to take these items but did not want her son, Kenneth Ruggerio, Jr., to know. Sgt. Flynn asked the plaintiff to provide a written statement, and she did so. Sgt. Flynn concluded that the written statement differed from what the plaintiff had told him over the telephone.

         Subsequently, during her Examination Under Oath on March 2, 2011, the plaintiff would testify that Anthony D'Agostino did not have permission to take the appliances. She testified that she learned that he had taken them after she had already signed a statement saying that the appliances had been stolen. She further testified that she went to the Clinton Police Department and changed her statement because she did not want her daughter Kat to get in trouble for something her husband Anthony D'Agostino had done.

         On May 18, 2010, the Clinton Police Department received a tip from an anonymous caller. The caller reported that the plaintiff had arranged for the arson at the Property and had set up the arson so that she could collect the insurance money.

         On May 19, 2010, Sgt. Flynn contacted Buccafurri to advise him about the anonymous tip.

         On May 19, 2010, Sgt. Flynn spoke by telephone with Susan D'Agostino, who is the mother of Anthony D'Agostino and the mother-in-law of Kat Ruggerio. (Sgt. Flynn's affidavit in support of the application for the arrest warrant gives her last name as “Esposito”.) Susan D'Agostino acknowledged to Flynn that she was the person who had called the tip line on May 18. D'Agostino told Flynn that on or about March 21, 2010 she and the plaintiff had had a conversation during which the plaintiff told her that she wanted to burn down the Property and collect the insurance money. D'Agostino told Flynn that the conversation had been witnessed by five other people. D'Agostino said that the plaintiff offered to pay two of those people $10, 000 to burn the Property. Sgt. Flynn re-interviewed Susan D'Agostino in person on May 24, 2010 and Susan D'Agostino repeated the same information. She also identified the other people who were present.

         On May 24, 2010, Sgt. Flynn spoke with four of the five witnesses who had been identified by D'Agostino. William Grecco, the boyfriend of Susan D'Agostino's daughter, stated that he recalled the plaintiff talking about burning her house and that the plaintiff had offered to pay him $10, 000 to burn the Property but Grecco had walked away and had not talked to her since. Sgt. Flynn also interviewed Kat Ruggerio, the plaintiff's daughter, who said that she recalled her mother discussing burning the house and making the statement to Grecco about paying him $10, 000 to burn it. Kat Ruggerio told Flynn that she took the statements seriously because her mother hated the house. But Kat Ruggerio testified subsequently that she only made those statement to Sgt. Flynn because Susan D'Agostino had threatened her. She also testified subsequently that she had informed Flynn of the fact that Susan D'Agostino had gotten her to make the statement to Flynn by threatening her, but that was contrary to her deposition testimony.

         Sgt. Flynn also interviewed Pasquale D'Agostino, the 15-year-old son of Susan D'Agostino. He also stated that the plaintiff had told him that she would pay him $10, 000 to burn the house. Finally, Sgt Flynn interviewed Sandra Capriglione, the mother of Susan D'Agostino. Capriglione stated that the plaintiff was complaining that the Property would cost too much to fix up and sell, so she wanted it to burn. Capriglione stated that she heard the plaintiff tell Pasquale D'Agostino that she would pay him $10, 000 if he burned the house. Capriglione also told Flynn that the plaintiff had said the same thing to Grecco.

         On May 25, 2010, Sgt. Flynn would speak to Angel D'Agostino by telephone and she would state that she had heard the plaintiff say she wanted to burn the house and heard her offer Pasquale D'Agostino $10, 000 to burn the Property.

         Susan D'Agostino would testify subsequently, at her deposition, that she was not the person who made the anonymous telephone call and that she did not tell Sgt. Flynn that she had; Kat Ruggerio testified though that she saw Susan D'Agostino make the call. D'Agostino also testified at her deposition that police officers showed up at her house to arrest Anthony D'Agostino and Kat Ruggerio for stealing a washing machine, and she learned from the officers that the plaintiff had told them that whoever stole the washing machine had set the fire at the Property; thus Susan D'Agostino may have acted out of a desire to protect her son. In addition, Susan D'Agostino testified at her deposition that she witnessed the plaintiff authorize Kat Ruggerio to take the washer and dryer and sell them, and that she did so before Anthony D'Agostino removed them from the Property.

         On May 24, 2010 Sgt. Flynn re-interviewed the plaintiff. At that time the plaintiff stated that she never made any statements about wanting to burn her house and that Susan D'Agostino had fabricated the incident. While the plaintiff acknowledged that she may have made statements to the effect that she wanted the house gone because it needed repairs, she told Sgt. Flynn that she had never asked anyone to burn it.

         On June 8, 2010, Buccafurri called Sgt. Flynn to inquire about the status of the investigation. Flynn told him about the information that he had obtained by means of interviewing Susan D'Agostino and the people identified as witnesses by her.

         Also on June 8, 2010, Harleysville wrote to the plaintiff advising her that it was reserving its rights under the Policy to disclaim liability and/or deny coverage. Harleysville advised the plaintiff that it was continuing to evaluate and investigate her claim and that as part of its investigation it was asking the plaintiff to furnish Harleysville with 27 categories of records and documents. It requested that this material be provided within 30 days.

         On July 1, 2010, counsel for Harleysville wrote to the plaintiff advising her that he wished to schedule her Examination Under Oath and that he would do so as soon as he received the documents and records that had previously been requested. On July 15, 2010 and again on July 28, counsel for Harleysville wrote to the plaintiff reminding her that the deadline for providing the documents and records had passed and again requesting that they be provided.

         In October, and again in November and January, counsel for Harleysville contacted the plaintiff's counsel to attempt to schedule the Examination Under Oath. And again in February 2011, counsel for Harleysville reminded the plaintiff's counsel that certain documents and records that had been requested remained outstanding.

         In January 2011, Buccafurri was conducting an investigation into the plaintiff's relationships with Jeanne Pierpaoli and funds the plaintiff received from her during the month of the fire. He had learned from the plaintiff's bank account records that checks written by Pierpaoli had been deposited into the plaintiff's bank account and the funds had been withdrawn by the plaintiff. Buccafurri was suspicious because the amounts of the transactions were consistent with an effort to circumvent the currency transaction reporting requirements. When Pierpaoli was subsequently deposed, which was after Harlesyville had denied coverage, Pierpaoli said that she did not really know Ruggerio, but that Ruggerio was the wife of someone who knew someone in the Peirpaoli family; this was consistent with the testimony of Ruggerio and her second husband, Frank Ruggerio, as to how Ruggerio knew Pierpaoli. However, after giving that bit of testimony, Pierpaoli asserted the Fifth Amendment privilege with respect to every question of substance concerning the movement of funds from her into the plaintiff's bank account.

         The Examination Under Oath finally took place on March 2, 2011. At that time the plaintiff had not produced all of the requested records and documents. Although the Examination Under Oath commenced at 2:18 p.m. and concluded at 6:43 p.m., it had not been completed and the plaintiff's counsel had another appointment. The Examination Under Oath was adjourned with a stipulation that it would be reconvened.

         During the Examination Under Oath, the plaintiff gave a different version of the conversation on or about March 21, 2010, which had occurred at Susan D'Agostino's home. She stated that William Grecco had raised the possibility of burning the house for $10, 000 and she said “Oh, poof. That would be the end of my problem. I wouldn't have to worry about anything, ” (Kathleen Ruggerio 3/2/2011 Examination at p. 126, ll. 1-3) but that she was not serious when she said it. During the Examination Under Oath, the plaintiff described Pierpaoli as a personal friend. The plaintiff was asked about the funds from Pierpaoli that had been deposited into the plaintiff's account. The plaintiff stated that Pierpaoli is a shut-in who deposits checks into the plaintiff's account, and the plaintiff then withdraws cash and gives it to Pierpaoli to purchase necessary items.

         On March 26, 2011, the plaintiff was arrested pursuant to a warrant that had been issued on January 5, 2011, based on an arrest warrant application submitted by Sgt. Flynn on January 4, 2011. Buccafurri had been advised by Sgt. Flynn on December 29, 2010 that a warrant would be obtained for the plaintiff's arrest. Then Buccafurri was advised by Sgt. Flynn on January 7, 2011 that the warrant for the plaintiff's arrest had been signed and that the charges were felony larceny, insurance fraud and filing a false report. Sgt. Flynn had advised Buccafurri that the plaintiff had not been charged with arson and conspiracy because Flynn had not located the individuals with whom the plaintiff may have conspired to burn the Property. Thus, Buccafurri attended the Examination Under Oath on March 2, 2011, knowing that the warrant for the plaintiff's arrest was outstanding.

         When the plaintiff was arrested on March 26, 2011, she was charged with criminal attempt to commit larceny in the first degree (a Class B felony) based on causing the Property to be burned in an attempt to collect insurance money; insurance fraud, based on making a false claim to Harleysville that the washer, dryer and generator had been stolen and only withdrawing the claim when the fraud was discovered by the police; and providing a false statement in the second degree, based on making a false statement to the Clinton Police Department.

         On June 14, 2011, the plaintiff and her criminal defense attorney talked to the state prosecutor, who advised them that the state had written a letter to Harleysville and was waiting for a response before deciding what type of an offer to make to the plaintiff in terms of disposition of the criminal case.

         Following the plaintiff's arrest, there were discussions between counsel for Harleysville and her counsel about resuming the Examination Under Oath. These discussions culminated in the plaintiff's counsel advising counsel for Harleysville in June 2011 that the plaintiff would not provide any further sworn testimony or any additional supporting claim documents until her criminal case had been resolved. Counsel for Harleysville took the position that the plaintiff did not have the right to refuse to continue the Examination Under Oath. The plaintiff's counsel sought a continuance to late August or early September so that research on the issue could be conducted.

         Eventually, Harleysville scheduled the continuation of the Examination Under Oath for October 13, 2011. The plaintiff proposed an alternate approach under which the plaintiff would not appear for the continuation of the Examination Under Oath until such time as her application in the criminal case for Accelerated Rehabilitation had been granted. Counsel for Harleysville rejected the plaintiff's proposal, and notified the plaintiff on October 10 that the continuation of the Examination Under Oath scheduled for October 13, 2011 would proceed, and also demanded that 27 categories of documentation be brought on October 13, 2011 for inspection ...


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