### The Honorable Andrew W. Bogue, United States District Judge 1 

### for the District of South Dakota, sitting by designation. No. 95-4101

Claude Patterson, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. State Automobile Mutual * Insurance Company, * * Appellee. *

Submitted: November 21, 1996 Filed: February 3, 1997

Befor e McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE, 1 District Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
A fire destroyed Claude Patterson's house in New Florence, Missouri, in late 1989. His insurance company, State Automobile Mutual Insurance, denied his claim nine months later, contending that Mr. Patterson ha d sta rted the fire intentionally and had misrepresented the amount of hi s losses. Mr. Patterson sued.

After a six-day trial, a jury found for the insurance company

. Mr. Patterson appeals, asserting that the trial court abused its discretio n in s triking part of the testimony of one of Mr. Patterson's experts

. Mr. Patterson also argues that the jury

### The Honorable Charles A. Shaw, United States District Judge 2 

### for the Eastern District of Missouri.

-2- instruction on the insurance company’s affirmative defense was flawed in several significant ways and that the insurance company failed to prove th e materiality of any misrepresentations that Mr. Patterson allegedly made. We affirm the judgment of the trial court. 2

I. One of Mr. Patterson's expert witnesses was an arson investigat or for the St. Louis police department. The expert went to the scene one or two weeks after the fire and walked around "what was left" of the outside of the house, looking fo r any signs of the cause and origin of the fire. At that time, he was not able to determine the cause of the fire, and so he presumed it to be accidental. It was the expert ’s view, in addition, that if a pe rson used five gallons of accelerant (as posited by at least on e insurance company witness), the resulting explos ion would either seriously injure or kill the person who spread the accelerant.

On a seco nd trip some time later, the expert examined some of th e metal beams in the debris to see if there had be en any melting (because he had heard that “some people had indicated that there was melting of metal at the fire scene”; such melting would suggest the high temperatures commo n in a fire started by an accelerant). He cleaned and scraped several metal beams, removing exter ior bubbles, which revealed what he considered to be a type of rust that c haracteristically appears when metal is subjected to continuous burning at more moderate temperatures. The expert also talked with the fire chief and two firefighters, all of whom told him that they had detected no odors of any accelerant in the fire.

### -3- At trial, the expert testified about both of his trips to the site. The insurance company objected to the admission of the expert’s testimony about his second trip there, arguing that Mr. Patterson’s failure to advis e the insurance company of that visit unfairly prejudiced its case an d violated Fed. R. Civ. P. 26(e)(1); see also Fed. R. Civ. P. 26(a)(2)(C). The trial court agree d and instructed the jury to disregard "that portion of [the expert’s] testimony that related to his second visit to the fire site ... where he performed the tests on the steel beam relative to meltin g and had an opinion on the melting situation. Also, his discussions with the firefighters and any opinions based on those from his second visit to the scene."

Mr. Patterson contends that the trial court abused its discretion , see , e.g. , Sylla-Sawdon v. Uniroyal Goodrich Tire Co. , 47 F.3d 277, 28 4 (8th Cir. 1995), cert. denied , 116 S. Ct. 1984 (1995), in striking th e expert’ s testimony relative to his second visit to the site. We see n o abuse o f discretion: the rules explicitly authorize the exclusion o f testimony in the circumstances presented here. See Fed. R. Civ. P

. 37(c)( 1); see also Sylla-Sawdon , 47 F.3d at 283-84, and Iowa-M o Enterprises, Inc. v. Avren , 639 F.2d 443, 446-47 (8th Cir. 1981).

The jury was still entitled, moreover, to consider the expert' s testimony that he could not reach a conclusion about the cause or origin of the fire, and that he therefore characterized it as being accidental in nat ure. The jury was also still entitled to consider the expert’ s testimony about the deadly nature of the explosion that would have resulte d if, as the insurance company suggested, five gallons of an accelerant had been used in setting the fire. That testimony alone tended to refute the insura nce company's version of events. Additional testimony about th e expe rt's tests on the metal beams and his conversations with severa l firefighters would have been more or less cumulative, in

### -4-

our view, since the e ssence of the expert's testimony -- with and without the inc luded portion -- was that the fire was not deliberately set. W e therefore hold that even if the trial court's ruling could be considered error, it was harmless.

II. The insur ance policy in this case denies “coverage” for any insured who ha s "intentionally concealed or misrepresented any material fact o r circumstance" or "mad e false statements or engaged in fraudulent conduct" "relating to this insurance." The trial court instructed the jury , therefore, that the verdict had to be for the insurance company if th e jur ors believed that Mr. Patterson “intentionally concealed o r misrepresented any material fact or circumstance as to the cause and origi n of the fire; ... the value of the allegedly dama ged personal property; ... the existence of the allegedly damaged personal property; or ... his claim for additional living expenses."

Mr. P atterson contends that the instruction incorrectly failed t o include a requirement that the insurance company have relied to it s detrim ent on (have been prejudiced by) any misrepresentations that h e allegedly made. He also asserts that the instruction contravenes bot h public policy and the language of the specific insurance policy in thi s
case by allowing total forfeiture of benefits because of a materia l misrepresentation with regard to only one of the several types of coverage provided by the policy.
With resp ect to the issue of detrimental reliance, we have found no
cases fr om the Missouri state courts dealing with this question i n cir cumstances involving alleged misrepresentations about the cause o r origin of a fire, in proofs of loss, or as to additional living expenses. Our court, however, has held at least twice that when an insurance company challenges a proof of loss as fraudulent, and thus in violation of terms in the policy

### -5-

prohibiting intentional misrepresentations and fraudulent conduct, unde r Mi ssouri law the insurance company does not have to show its ow n detrimental reliance on the proof of loss. See General Casualty Insurance Companies v. Holst Radiator Co. , 88 F.3d 670, 672 (8th Cir. 1996), an d Vitale v. Aetna Casualty and Surety Co. , 814 F.2d 1242, 1251 (8th Cir

. 1987)

. We see no reason why this principle should not apply as well t o cir cumstances involving alleged misrepresentations about the cause o r origin of a fire and as to additional living expenses, since its basis is the policy language i tself. See General Casualty Insurance Companies , 88 F.3d at 671-72, and Vitale , 814 F.2d at 1251. T he policy language in this
cas e says nothing about any requirement for detrimental reliance by th e ins urance company. We therefore reject Mr. Patterson's argument on th e issue of detrimental reliance.

Mr. Patte rson never made his public policy argument or the contract interpretation argume nt in the trial court. He contends nonetheless that because the instruction allowed forfeiture of all benefits even if the jur y found that Mr. Patter son made a material misrepresentation with regard to only one type of coverage provided by the policy, the instruction was plai n error. We disagree.

For one thing, both federal and state courts applying Missouri la w have specifically stated that Missouri common la w permits forfeiture under circumstances like the ones presented in this case. See , e.g. , Vitale , 81 4 F.2d at 1247, and Childers v. State Farm Fire an d Casualty Co. , 799 S.W.2d 138, 141 (Mo. Ct. App . 1990). In addition, both federal and state courts have allowed this kind of forfeiture based on the language contained i n particular insurance policies. See , e.g. , Vitale , 814 F.2d at 1247; Farm Bureau Town and Country Insurance Co. v. Crain , 731 S.W.2d 866, 875 (Mo. Ct. App. 1987); Arel v. First National Fire Insu rance Co. , 190 S.W. 78, 80 (Mo. Ct. App. 1916); and Hall v. Western Underwriters' Association , 81 S.W

. 227, 227 (Mo. Ct.

### -6-

App. 1904). We therefore reject Mr. Patterson's arguments with respect to forfeiture.

III. Last, Mr. Patterson contends that the insurance company failed t o prove the materiality of any misrepresentations that he allegedly made

. We have read with care the transcript of the six -day trial. The evidence was more than sufficient to prove th e materi ality of the statements that the insurance company offered a s misrepresentations made by Mr. Patterson.

IV. For the reasons stated, we affirm the judgment of the trial court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.