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Breaking Legal Developments

04-11-2008

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Utah Ct App-Fire Expert Testimony not Required of Plaintiff in Fire Insurance Loss


(1) UTAH CT APP-FIRE EXPERT TESTIMONY NOT REQUIRED OF PLAINTIFF IN FIRE INSURANCE LOSS

In Young v. Fire Insurance Exchange, 2008 UT App 114 (April 3, 2008), http://decisions.courts.state.ny.us/fcas/fcas_docs/2008apr/2300276902004101sciv.pdf , plaintiff had filed an action to recover for fire damage to her home. Her insurer declined the claim asserting the fire was internationally caused by insured and suit was filed. During the trial of the insurance claim, plaintiff cross examined the fire department investigator called by the insurer. That expert testified the fire likely started in the center of the room because this is where an accelerant dog picked up "some type of accelerant." There was no legitimate source of ignition according to that expert and he could not determine an accidental cause for the fire. However, on cross examination he admitted the fire could have started in the mattress. That the mattress had been removed when the dog came through. That the expert originally thought a car transmission was in the room of origin, that was later proven not to be true. Furthermore, he did not examine any appliances in the room, an extension cord or the circuit breaker box and failed to interview alleged users of the room before the fire was discovered.

The trial court had not allowed a rebuttal expert of plaintiff to challenge the fire department investigator's opinion that the fire was intentionally set. The Court of Appeals held that was error and that the insured had brought enough information forward to trigger coverage under the policy. The insurer then had to prove the fire was the result of an intentional act. The court had granted the defendant's motion for directed verdict in part because there was no expert testimony by the plaintiff. That ruling was also reversed. The court noted, the plaintiff's evidence may have been improbable but that did not justifying directing a verdict for the defendant. At the directed verdict stage, the court cannot weigh the evidence, it determines only whether there is a question of material fact for the jury to consider. The court held there was enough information produced on the fire not being intentionally set and reversed the judgment for the defendant, permitting the case to be retried.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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