Pisa v. Underwriters

• Court: Court of Appeals for the First Circuit
• Decided: July 8, 1992
• Docket: 92-1326
• Status: Published

Opinion

USCA1 Opinion

July 8, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No.  92-1326

                                     ANTHONY PISA
                                Plaintiff, Appellant, 

                                          v.

                            UNDERWRITER AT LLOYDS, LONDON
                                 Defendant, Appellee.

                              __________________________

ERRATA SHEET

Please make the following corrections on opinion issued July
          2, 1992:

Cover sheet:  delete the number 1 from bottom front page.

               On page 3, Line 13 add "d" to "produce";
               On Page 3, Line 21 "was" instead of "were;

               On page 5, Line 20 "was" instead of "were;
               On page 5, Line 22 strike "ing" on "identifying."

                    July 2, 1992
                                [NOT FOR PUBLICATION]

___________________

No. 92-1326

ANTHONY PISA,

                                Plaintiff, Appellant,

                                          v.

                           UNDERWRITERS AT LLOYDS, LONDON,

                                 Defendant, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Selya, Chief Judge,
                                        ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ___________________

               Anthony Pisa on brief for appellant.
               ____________
               Lawrence  A. Dugan, and Morrison, Mahoney & Miller on Motion
               __________________      __________________________
          to  Dismiss  or in  the  Alternative for  Summary  Affirmance and
          Memorandum in Support for appellee.

                                  __________________

                                 __________________ 

Per Curiam.     Plaintiff  sought recovery under  a
                      __________

            fire insurance  policy.  The district  court granted  summary

            judgment for  defendant insurer on the  ground that plaintiff

            had failed to comply  with the policy's statutory cooperation

            clause1.

                      Plaintiff has several arguments which we address in

            turn.

                       First,  plaintiff claims  that the  district court

            improperly  resolved   factual  issues  by   concluding  that

            plaintiff's  inability to  remember  financial  details  when

            deposed by the  insurer was evasive conduct violative  of the

            policy's  cooperation  clause.    Plaintiff  argues  that  he

            answered to the best  of his ability and that  it is  a  jury

            question whether his  answers were evasive, on  the one hand,

____________________

            1.    By statute,  the  policy required  in material  part as
            follows: 
                           The  insured, as  often  as  may  be
                      reasonably required,  shall . .  . submit
                      to  examinations under  oath  .  . .  and
                      subscribe the same; and, as often as  may
                      be  reasonably  required,  shall  .  .  .
                      produce  for  examination  all  books  of
                      account,   bills,   invoices  and   other
                      vouchers, or certified copies  thereof if
                      originals  are  lost, at  such reasonable
                      time and  place as  may be  designated by
                      [the insurer].  

                           No suit or action on this policy for
                      the  recovery  on   any  claim  shall  be
                      sustainable in any court of law or equity
                      unless  all  the  requirements   of  this
                      policy have been complied with.

            R.I. Gen. L.   27-5-3.

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or a sincere inability to remember past matter, on the other.

The court did not resolve disputed factual  issues.

            To  be sure,  the  court did  state  that at  the  deposition

            plaintiff  had "managed  to  avoid giving  [the insurer]  any

            information  that could  help  them understand  [plaintiff's]

            finances  at  the   time  of  the   fire."  But,  the   court

            subsequently  specifically  noted that  it could  not resolve

            credibility matters  and pointed  out that plaintiff  had not

            produced any  requested document or  authorization to  obtain

            records.    Viewed  in  context,  the  court's  reference  to

            plaintiff's  deposition  testimony   was  not  a  credibility

            determination  that plaintiff  had not  testified truthfully,

            but rather background underscoring the insurer's need for the

            checkbook and authorizations given that plaintiff's testimony

            had produce little  or no information  concerning his or  the

            restaurant's finances. 

                      Second, plaintiff contends that plaintiff's failure

            to produce the checkbook and authorization for release of tax

            information   and   financial   records   was    not   wilful

            noncooperation  but rather  the product  of misunderstanding.

            He claims he  never refused  to produce either.   Rather,  he

            maintains that  neither was clearly requested.   Moreover, he

            asserts, without  any record support, that  he did eventually

            produce the  checkbook.      As for  a release  for financial

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records  or  tax  returns,  plaintiff contends  that  he  was

            willing to  cooperate, but, being pro se, did not know how to

            draft an authorization or go about getting bank records, felt

            any expense  in document  gathering  should be  borne by  the

            insurer,  and  was waiting  for  the  insurer to  forward  an

            authorization  for plaintiff  to  sign.   At the  very least,

            plaintiff  argues, a  jury should  be permitted  to determine

            whether plaintiff willfully  refused to  cooperate or  rather

            stood ready  to cooperate and  to sign any  authorization the

            insurer  might  prepare, but  failed  to  meet the  insurer's

            expectation through misunderstanding and inadvertence.

                      We conclude both that the record belies plaintiff's

            present assertions  of no  clear demand  and misunderstanding

            and that  plaintiff failed  timely to  raise these  claims in

            opposition to defendant's motion for summary judgment.  

                      Plaintiff was directed to  bring to his December 6,

            1990 deposition his and his business's tax returns as well as

            enumerated business  records.  He  did not do  so, explaining

            that  all but the checkbook had been  destroyed by fire.  The

            December  6,   1990  deposition   (at  which   plaintiff  was

            represented  by an  attorney)  concluded  with the  insurer's

            lawyer stating his  understanding that  plaintiff would  look

            for  the checkbook, give it  to his lawyer,  and discuss with

            his lawyer whether to provide an authorization to  obtain tax

            returns.   Plaintiff did not controvert that understanding at

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that  time.  The insurer  clearly stated his  position at the

            deposition that  the policy required plaintiff  to provide an

            authorization  for  release  of  tax returns.    The  insurer

            reiterated this  position in a letter several  weeks later to

            plaintiff's attorney and once again demanded the checkbook as

            well  as an "authorization to obtain  copies of all financial

            records which  [plaintiff] alleges  are not  presently within

            his  possession  as  well  as Federal  and  State  Income Tax

            returns  . . .  [for] 1986,  1987, 1988,  1989."   Ten months

            later  (October  8, 1991),  the  insurer's  lawyer stated  by

            affidavit that  plaintiff had not produced  the checkbook and

            had not  provided any  authorization for defendant  to obtain

            financial  records  or tax  returns.   So  far as  the record

            reveals, plaintiff  made no timely cooperative  response.  He

            did not controvert the insurer's affidavit that the checkbook

            had  not  been  turned over,  he  did  not  offer to  produce

            anything,  and  he  did  not  claim  financial  inability  or

            confusion due to his pro se  status.  On December 12, 1991, a

            hearing on the motions for summary judgment was scheduled for

            January 16, 1992.   Still, plaintiff made no  overture toward

            cooperation.   Plaintiff's present  claim of  confusion comes

            too  late.   Plaintiff  was clearly  on  notice that  he  was

            required to  produce relevant records.   The insurer's demand

            for the checkbook and authorizations was reasonable under the

            circumstances as a matter of law.  Plaintiff's failure either

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to  comply  or  to  identify his  reservations  violated  the

            cooperation clause.

                      Third, plaintiff argues he should have been given a

            further  chance  to cooperate.    An hour  after  the summary

            judgment hearing  concluded,  plaintiff filed  a  handwritten

            paper  authorizing  defendant   "to  retrieve  any  financial

            document or  any other pertinent information"  and requesting

            defendant to  send any authorization to  plaintiff's home for

            plaintiff to sign.  The district court ruled that plaintiff's

            offer came too late.

                      Plaintiff  relies on  New York  cases, particularly

            Pogo  Holding Corp.  v. New  York Property  Ins. Underwriting
            __________________      _____________________________________

            Assoc., 73 A.D.2d 605, 422 N.Y.S.2d 123 (1979), for his claim
            _____

            that he  should be given another  chance.   There,  after the

            insured's treasurer had been examined under oath, the insurer

            requested the  insured's  president similarly  to  submit  to

            examination  and  to produce  certain  documents.   When  the

            president refused, the insurer sought summary judgment.  Even

            though plaintiff did not  satisfactorily explain its  failure

            of cooperation,  the court,  "reluctant to exact  the extreme

            penalty of  dismissal,"   gave plaintiff  one last  chance to

            comply.     Plaintiff argues the  district court  should have

            done  the  same  here  particularly  as,   plaintiff  claims,

            defendant has not been prejudiced by the delay.

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It  is  true  that   under  Rhode  Island  law  "an

            insurance  company  must show  that  it  has been  prejudiced

            before  an insured's  failure to  comply with  the procedural

            requirement in  a policy will bar recovery."   Pickwick Park,
                                                           ______________

            Ltd. v. Terra  Nova Ins. Co., 602  A.2d 515, 518  (R.I 1992);
            ___     ___________________

            Corrente v. Fitchburg Mut.  Fire Ins. Co., 557 A.2d  859, 863
            ________    ____________________________

            (R.I. 1989).   In  the present  case, however, prejudice  was

            manifest as a matter of law on the record as it existed up to

            the time of the  hearing on the motion for  summary judgment.

            Defendant   insurer  had  received  no  documents  concerning
                                                __

            plaintiff's  or the restaurant's financial condition and very

            little oral information concerning finances given plaintiff's

            purported memory  lapse.  Plaintiff's position  now, however,

            is that in view of his post-hearing offer of cooperation, the

            insurer  will be  able  to obtain  tax returns  and financial

            documents and hence will not ultimately be prejudiced.

                      We  agree with  the  district court's  response  to

            plaintiff's late offer:

                      A Rule 56 motion puts an end to pre-trial
                      maneuvering and compels the  litigants to
                      show  the court  what they  can prove  at
                      trial.   The rule gives  the plaintiff  a
                      deadline to come forth with his case, and
                      it   provides   the  strict   penalty  of
                      dismissal  for those  who cannot  prove a
                      case.   Delaying  the performance  of his
                      contractual  obligations in  the apparent
                      hope that  he would not have  to disclose
                      damaging  information,   [plaintiff]  has
                      missed his chance.

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Pogo Holding has  not been  invariably followed  by
                      ____________

            New  York courts.  When  an insured's lack  of cooperation is

            egregious,  unconditional summary  judgment has  been granted

            for the insurer.  See, e.g., Evans v. International Ins. Co.,
                              ___  ____  _____    _____________________

            168  A.D.2d  374,  562  N.Y.S.2d 692  (1990);  Pizzirusso  v.
                                                           __________

            Allstate Ins. Co,   143 A.D.2d 340, 532 N.Y.S.2d  309 (1988);
            ________________

            Rosenthal v. Prudential Property & Casualty Co, 928 F.2d 493,
            _________    _________________________________

            495  (2d  Cir.  1991)  (noting  that  New  York  courts  have

            retreated from  affording an insured  a last chance  when the

            insured's failure to  cooperate is  wilful).   In any  event,

            regardless  whether a New  York court would  afford a further

            chance to plaintiff, who  filed no timely satisfactory reply,
                                               ______

            offer to cooperate, or excuse for non compliance in  response

            to defendant's affidavits and motion for summary judgment, it

            is  Rhode Island law which controls this case.  Plaintiff has

            pointed  to no  Rhode Island  case law  which  would tolerate

            plaintiff's  foot  dragging.    In  these  circumstances,  we

            summarily  affirm the  judgment below.2   First  Circuit Rule

            27.1.

                      Affirmed.
                      ________

____________________

            2.  As  we summarily affirm the judgment on the merits, we do
            not  pass on  defendant's  claim that  the  appeal should  be
            dismissed  because  plaintiff's  brief  and  appendix do  not
            comply  with  rules  of  appellate  procedure.    Defendant's
            request for  costs and  attorney's fees pursuant  to Fed.  R.
            App. P. 38 is denied.

                                         -8-