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Riley v. The Travelers Home and Marine Insurance Co.

Supreme Court of Connecticut

September 10, 2019

C. ANDREW RILEY
v.
THE TRAVELERS HOME AND MARINE INSURANCE COMPANY

          Argued November 8, 2018

         Procedural History

         Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Hartford and transferred to the Complex Litigation Docket, where the case was tried to the jury before D. Sheridan, J.; verdict for the plaintiff; thereafter, the court denied the defendant’s motion for judgment notwithstanding the verdict and rendered judgment in accordance with the verdict, from which the defendant appealed to the Appellate Court, DiPentima, C. J., and Sheldon and Bishop, Js., which affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court. Affirmed.

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

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

          Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.

          OPINION

          ECKER, J.

         This appeal concerns a question of civil procedure arising when a jury returns a verdict in favor of the plaintiff that the defendant claims was not supported by sufficient evidence presented during the plaintiff’s case-in-chief. Under what has come to be known as the waiver rule, ‘‘when 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.’’ Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 756–57, 699 A.2d 81 (1997). The defendant, The Traveler’s Home and Marine Insurance Company, contends that the waiver rule is inapplicable to civil cases in which a trial court reserves decision on a motion for a directed verdict pursuant to Practice Book § 16-37.[1] We disagree and conclude that the waiver rule is applicable regardless of whether a motion for a directed verdict has been reserved for decision or denied. Thus, a court reviewing the sufficiency of the evidence to support a jury’s verdict must consider all of the evidence considered by the jury returning the verdict, not just the evidence presented in the plaintiff’s case-in-chief.

         The plaintiff, C. Andrew Riley, commenced this action against the defendant for breach of contract and negligent infliction of emotional distress stemming from the defendant’s handling of the plaintiff’s homeowner’s insurance claim. At the close of the plaintiff’s case-in-chief, the defendant moved for a directed verdict on the plaintiff’s negligent infliction of emotional distress claim, and the trial court reserved decision on that motion. The defendant then presented evidence in its defense, some of which supported the plaintiff’s contention that the defendant had been negligent in its investigation of his homeowner’s insurance claim. The jury returned a verdict for the plaintiff on both counts. The defendant timely moved for judgment notwithstanding the verdict, renewing its motion for a directed verdict and requesting the court to set aside the verdict on the claim of negligent infliction of emotional distress and render judgment for the defendant. The trial court, relying primarily on evidence that emerged during the defendant’s case, determined that there was sufficient evidence to support the jury’s verdict and denied the defendant’s motion. The Appellate Court affirmed the trial court’s judgment; Riley v. Travelers Home & Marine Ins. Co., 173 Conn. App. 422, 462, 163 A.3d 1246 (2017); and we affirm the judgment of the Appellate Court.

         I

         The Appellate Court summarized the facts and procedural history as follows. ‘‘On February 26, 2009, a fire 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 . . . 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.’ 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, ‘[d]uring 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.’ 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’s counsel] orally moved for a directed verdict on the plaintiff’s claim of negligent infliction of emotional distress.’’ (Footnotes omitted.) Riley v. Travelers Home & Marine Ins. Co., supra, 173 Conn. App. 425–28. In support of its motion, the defendant argued ‘‘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, [and], 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.’ ’’ Id., 432.

         After the defendant’s presentation of evidence, 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.’’ Id. 428–29.

         Thereafter, the defendant filed a motion for judgment notwithstanding the verdict and a supporting memorandum of law. ‘‘The defendant argued in that motion: ‘During [the plaintiff’s] 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.’ ’’ Id., 433. The trial court disagreed and, after reviewing all of the evidence adduced at trial, including evidence presented during the defendant’s case, concluded that the jury’s verdict was supported by the evidence. The trial court therefore rendered judgment in accordance with the jury’s verdict.

         The defendant appealed from the trial court’s judgment to the Appellate Court, claiming, among other things, that the trial court ‘‘was limited to the evidence adduced during the plaintiff’s case-in-chief, which was insufficient to establish the plaintiff’s claim . . . .’’ Id., 429. The Appellate Court rejected the defendant’s claim, holding that the defendant ‘‘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 . . . had the effect of ...


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