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USCA1 Opinion
July 8, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1326
ANTHONY PISA
Plaintiff, Appellant,
v.
UNDERWRITER AT LLOYDS, LONDON
Defendant, Appellee.
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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[NOT FOR PUBLICATION]
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No. 92-1326
ANTHONY PISA,
Plaintiff, Appellant,
v.
UNDERWRITERS AT LLOYDS, LONDON,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Selya, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Anthony Pisa on brief for appellant.
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Lawrence A. Dugan, and Morrison, Mahoney & Miller on Motion
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to Dismiss or in the Alternative for Summary Affirmance and
Memorandum in Support for appellee.
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Per Curiam. Plaintiff sought recovery under a
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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,
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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
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Assoc., 73 A.D.2d 605, 422 N.Y.S.2d 123 (1979), for his claim
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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,
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Ltd. v. Terra Nova Ins. Co., 602 A.2d 515, 518 (R.I 1992);
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Corrente v. Fitchburg Mut. Fire Ins. Co., 557 A.2d 859, 863
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(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
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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
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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.,
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168 A.D.2d 374, 562 N.Y.S.2d 692 (1990); Pizzirusso v.
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Allstate Ins. Co, 143 A.D.2d 340, 532 N.Y.S.2d 309 (1988);
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Rosenthal v. Prudential Property & Casualty Co, 928 F.2d 493,
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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,
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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.
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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.
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Document Info
Docket Number： 92-1326
Filed Date： 7/8/1992
Precedential Status： Precedential
Modified Date： 9/21/2015