Salka v. Lumbermens Mutual Casualty Co.

127 A.D.2d 333, 515 N.Y.S.2d 344, 1987 N.Y. App. Div. LEXIS 42402
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 30, 1987
StatusPublished
Cited by10 cases

This text of 127 A.D.2d 333 (Salka v. Lumbermens Mutual Casualty Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salka v. Lumbermens Mutual Casualty Co., 127 A.D.2d 333, 515 N.Y.S.2d 344, 1987 N.Y. App. Div. LEXIS 42402 (N.Y. Ct. App. 1987).

Opinion

OPINION OF THE COURT

Weiss, J. P.

On March 22, 1984, plaintiffs’ home at 94 Main Street, Village of Keeseville, Clinton County, was destroyed by fire. The premises were insured under a homeowner’s policy issued by defendant three weeks earlier. Plaintiffs gave prompt notice of the loss and timely rendered a statement of proof of loss. After plaintiffs were examined under oath on May 15, 1984, defendant forwarded an authorization form seeking authority to obtain "any and all information regarding financial, business or personal transactions” between plaintiffs and "any other individual or entity”. Plaintiffs responded that the form was too broad, but offered to provide specific documents upon request. By letter of August 17, 1984, defendant advised plaintiffs that a failure to sign the authorization form violated the cooperation provisions of the policy and might result in a forfeiture of their rights under the policy. In response, plaintiffs reiterated that the form was overly broad and specifically inquired whether defendant had "reason to suspect that the insureds intentionally started the fire”. On September 27, 1984, defendant rejected the claim in writing, citing plaintiffs’ failure to cooperate in the investigation and to provide the documentation requested, "together with other good and sufficient reasons”.

Plaintiffs commenced the instant action in October 1985 seeking compensatory damages for the property loss sustained and, in the second cause of action, to recover punitive damages alleging defendant’s bad-faith breach of duty to plaintiffs [335]*335under the terms of the policy. In its answer, defendant asserted as affirmative defenses that the complaint failed to state a cause of action for punitive damages, that plaintiffs deliberately caused the fire and that plaintiffs violated the policy by failing to provide the requested information authorization. Thereafter, insofar as here pertinent, defendant moved for an order pursuant to CPLR 3211 (a) (7) and CPLR 3212 dismissing the claim for punitive damages and the attendant request for counsel fees. In response, plaintiffs moved for leave to amend their complaint to assert additional allegations relative to the punitive damages claim and to increase the amount of punitive damages to $100,000. In support of the request, plaintiffs emphasized that defendant’s answer provided the first notice that their claim was rejected upon a contention of arson. Supreme Court refused to dismiss plaintiffs’ claim for punitive damages and, instead, granted plaintiffs’ motion to amend the complaint. Defendant has appealed.

The crux of this appeal is whether Supreme Court erred in denying defendant’s motion for partial summary judgment dismissing plaintiffs’ claim for punitive damages. This court has only recently reiterated that "punitive damages are not available for an isolated transaction such as the breach of an insurance contract, even if that breach was committed willfully and without justification” (Monroe v Providence Wash. Ins. Co., 126 AD2d 929 [and cases cited therein]). We do recognize that in actions premised on fraud, such as Greenspan v Commercial Ins. Co. (57 AD2d 387) relied on by Supreme Court, punitive damages are available to remedy a private wrong where morally culpable conduct is established (see, Borkowski v Borkowski, 39 NY2d 982; Hebert v State Farm Mut. Auto. Ins. Co., 124 AD2d 958; Keen v Keen, 113 AD2d 964, 965-966, lv dismissed 67 NY2d 602, 646; cf., Supreme Automotive Mfg. Corp. v Continental Cas. Co., 126 AD2d 153; Samovar of Russia Jewelry Antique Corp. v Generali, Gen. Ins. Co., 102 AD2d 279, 282-283). Here, plaintiffs essentially maintain that defendant’s bad-faith rejection of their claim extends beyond a mere breach of the insurance contract, and is tantamount to a fraudulent breach of the insurer’s duty of good faith and fair dealing (see, DeMarco v Federal Ins. Co., 99 AD2d 114, 115-116). To recover on this premise, however, it was necessary for plaintiffs to make an "extraordinary showing of a disingenuous or dishonest failure to carry out a contract” (Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427, 437, cert denied 410 US 931; accord, Home Ins. Co. v Karan[336]*336tonis, 124 AD2d 368; Marsch v Massachusetts Indem. & Life Ins. Co., 101 AD2d 952, 953, lv dismissed 63 NY2d 603, 769). Giving due regard to the procedural posture of this case (see, Canonico v Hayes, 127 AD2d 911), we find that plaintiffs’ evidentiary submissions fall short of the required showing of bad faith and are therefore inadequate.

Plaintiffs premise their claim for punitive damages on defendant’s failure to timely inform them that the claim would be denied on the basis of arson and on defendant’s unjustified insistence that plaintiffs sign the authorization form. With respect to the latter point, even were we to agree with plaintiffs that the authorization request was overly broad and plaintiffs’ offer to provide particular documents on request was reasonable, defendant’s insistence on having the form signed is certainly not morally reprehensible conduct, particularly when one considers that numerous documents were apparently destroyed in the fire (see, Williams v American Home Assur. Co., 97 AD2d 707, 708, affd 62 NY2d 953). The more significant allegation concerns defendant’s purported misleading of plaintiffs in order to gain an unfair advantage in the arson defense. The record establishes that defendant retained an independent arson investigator, J. Eugene Bricault, who investigated the fire scene on March 24, 1984 and ultimately concluded that the fire was of an incendiary nature. This conclusion was communicated to defendant on April 10, 1984, but defendant neither contacted the appropriate government officials (see, Insurance Law § 319 [b]) nor informed plaintiffs, despite the latter’s specific inquiry on the arson question. The problem is compounded by plaintiffs’ assertion that both defendant and the Keeseville Fire Department authorized the removal of the fire debris in February or March 1985. As a result, plaintiffs maintain that they were fraudulently deprived of an opportunity to conduct their own tests at the fire scene to disprove the arson defense.

It is evident that following Bricault’s investigation and plaintiffs’ examinations under oath, which confirmed that plaintiff Thomas H. Salka was on the premises at the time of the fire and that plaintiffs were experiencing some financial difficulties, questions of fact were raised as to whether the fire was deliberately set and whether plaintiffs had a financial motive to procure the loss. However, defendant’s conduct in failing to expressly apprise plaintiffs of the arson defense has left plaintiffs in the precarious position of not having the benefit of an evaluation of the fire debris by their own expert. [337]*337Defendant explained that it did not inform the authorities of its investigation results because Bricault inferred from the presence of a member of the Clinton County Arson Task Force at the scene during the investigation that the authorities were already treating the fire as suspicious in nature and that further notice was unnecessary. Defendant further asserts that the fact it retained an arson investigator and thoroughly deposed plaintiffs as to their whereabouts on the day of the fire and their financial status should have alerted plaintiffs to the prospect of an arson defense, particularly since plaintiffs had retained counsel.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pinnacle Environmental Systems, Inc. v. R.W. Granger & Sons, Inc.
245 A.D.2d 773 (Appellate Division of the Supreme Court of New York, 1997)
Langevin v. Community Bank
227 A.D.2d 816 (Appellate Division of the Supreme Court of New York, 1996)
Huzar v. State
156 Misc. 2d 370 (New York State Court of Claims, 1992)
Kinnarney v. Natale Auto Body
157 A.D.2d 938 (Appellate Division of the Supreme Court of New York, 1990)
Morse/Diesel, Inc. v. Fidelity and Deposit Co. of Md.
715 F. Supp. 578 (S.D. New York, 1989)
O'Dell v. New York Property Insurance Underwriting Ass'n
145 A.D.2d 791 (Appellate Division of the Supreme Court of New York, 1988)
Naja v. Pennsylvania General Insurance
144 A.D.2d 213 (Appellate Division of the Supreme Court of New York, 1988)
Somers v. Bankers Life & Casualty Co.
142 A.D.2d 780 (Appellate Division of the Supreme Court of New York, 1988)
Village of Malone Housing Authority v. Jardine Insurance Brokers, Inc.
140 A.D.2d 917 (Appellate Division of the Supreme Court of New York, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
127 A.D.2d 333, 515 N.Y.S.2d 344, 1987 N.Y. App. Div. LEXIS 42402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salka-v-lumbermens-mutual-casualty-co-nyappdiv-1987.