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

 

Before 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 had

started the fire intentionally and had misrepresented the amount of his

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 discretion

in striking 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.

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instruction on the insurance company’s affirmative defense was flawed in

several significant ways and that the insurance company failed to prove the

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 investigator 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 for 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 person used five gallons of accelerant (as posited by at least one

insurance company witness), the resulting explosion would either seriously

injure or kill the person who spread the accelerant.

On a second trip some time later, the expert examined some of the

metal beams in the debris to see if there had been 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 common

in a fire started by an accelerant). He cleaned and scraped several metal

beams, removing exterior bubbles, which revealed what he considered to be

a type of rust that characteristically 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.
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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 advise

the insurance company of that visit unfairly prejudiced its case and

violated Fed. R. Civ. P. 26(e)(1); see also Fed. R. Civ. P. 26(a)(2)(C).

The trial court agreed 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 melting

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, 284

(8th Cir. 1995), cert. denied, 116 S. Ct. 1984 (1995), in striking the

expert’s testimony relative to his second visit to the site. We see no

abuse of discretion: the rules explicitly authorize the exclusion of

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-Mo

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

nature. The jury was also still entitled to consider the expert’s

testimony about the deadly nature of the explosion that would have resulted

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

insurance company's version of events. Additional testimony about the

expert's tests on the metal beams and his conversations with several

firefighters would have been more or less cumulative, in
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our view, since the essence of the expert's testimony -- with and without

the included portion -- was that the fire was not deliberately set. We

therefore hold that even if the trial court's ruling could be considered

error, it was harmless. 

II.

The insurance policy in this case denies “coverage” for any insured

who has "intentionally concealed or misrepresented any material fact or

circumstance" or "made 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 the

jurors believed that Mr. Patterson “intentionally concealed or

misrepresented any material fact or circumstance as to the cause and origin

of the fire; ... the value of the allegedly damaged personal property; ...

the existence of the allegedly damaged personal property; or ... his claim

for additional living expenses." 

Mr. Patterson contends that the instruction incorrectly failed to

include a requirement that the insurance company have relied to its

detriment on (have been prejudiced by) any misrepresentations that he

allegedly made. He also asserts that the instruction contravenes both

public policy and the language of the specific insurance policy in this

case by allowing total forfeiture of benefits because of a material

misrepresentation with regard to only one of the several types of coverage

provided by the policy.

With respect to the issue of detrimental reliance, we have found no

cases from the Missouri state courts dealing with this question in

circumstances involving alleged misrepresentations about the cause or

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
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prohibiting intentional misrepresentations and fraudulent conduct, under

Missouri law the insurance company does not have to show its own

detrimental reliance on the proof of loss. See General Casualty Insurance

Companies v. Holst Radiator Co., 88 F.3d 670, 672 (8th Cir. 1996), and

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 to

circumstances involving alleged misrepresentations about the cause or

origin of a fire and as to additional living expenses, since its basis is

the policy language itself. See General Casualty Insurance Companies, 88

F.3d at 671-72, and Vitale, 814 F.2d at 1251. The policy language in this

case says nothing about any requirement for detrimental reliance by the

insurance company. We therefore reject Mr. Patterson's argument on the

issue of detrimental reliance. 

Mr. Patterson never made his public policy argument or the contract

interpretation argument in the trial court. He contends nonetheless that

because the instruction allowed forfeiture of all benefits even if the jury

found that Mr. Patterson made a material misrepresentation with regard to

only one type of coverage provided by the policy, the instruction was plain

error. We disagree.

For one thing, both federal and state courts applying Missouri law

have specifically stated that Missouri common law permits forfeiture under

circumstances like the ones presented in this case. See, e.g., Vitale, 814

F.2d at 1247, and Childers v. State Farm Fire and 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 in

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 Insurance Co., 190 S.W. 78, 80

(Mo. Ct. App. 1916); and Hall v. Western Underwriters' Association, 81 S.W.

227, 227 (Mo. Ct.
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App. 1904). We therefore reject Mr. Patterson's arguments with respect to

forfeiture.

III.

Last, Mr. Patterson contends that the insurance company failed to

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 the

materiality of the statements that the insurance company offered as

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.