United States District Court, E.D. Michigan, Southern Division
JOHNNIE WILSON, DWIGHT WILSON, HASSAN TURNER, C.S., Z.S., N.S. and A.S Plaintiffs,
STATE FARM FIRE AND CASUALTY COMPANY Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
(ECF NO. 52)
COHN UNITED STATES DISTRICT JUDGE.
an insurance case. Plaintiffs Johnnie Wilson, Hassan Turner,
and Turner's grandchildren (C.S., Z.S., N.S. and A.S.)
are suing State Farm for denying their claims for insurance
for the loss suffered after a fire at their home. The Named
Insured on the policy was Johnnie Wilson. It is undisputed
that Wilson's son, Hassan Turner, and his grandchildren
(C.S., Z.S., N.S. and A.S.), were all insured persons
pursuant to the definitions set forth in the policy.
case was tried in front of a jury. The jury unanimously found
that Plaintiff Johnnie Wilson had a wrongful connection to
the fire, but that his son, Plaintiff Hassan Turner, did not.
(ECF No. 44). A judgment was entered. (ECF No. 45). Before
the submission of the case to the jury, the Plaintiffs moved
for the dismissal of State Farm's fraud defense, which
was granted by the Court. In an oral ruling from the bench,
the Court concluded that State Farm's fraud defense was
too related to State Farm's arson defense, such that it
was not appropriate for the jury to be allowed to decide if
the Plaintiffs violated the policy's concealment or fraud
provisions as well. An order on this ruling was not entered.
State Farm moved for a new trial for Turner under FRCP 59(a)
on the grounds that the Court should have instructed the jury
on the fraud defense, and their motion is now before the
Court. (ECF No. 52).
59(a) provides that following a jury verdict, the court may
grant a new trial “for any of the reasons for which new
trials have heretofore been granted in actions at law in the
courts of the United States.” In Montgomery Ward
& Co. v. Duncan, 311 U.S. 243 (1940), the United
States Supreme Court held that a, “motion for new trial
may invoke the discretion of the court in so far as it is
bottomed on the claim that the verdict is against the weight
of the evidence, that the damages are excessive, or that, for
other reasons, the trial was not fair to the moving
Farm argues the jury should have been able to decide whether
Turner violated the policy's concealment or fraud
provision. They say that Turner “could have learned
that his father set the fire after the fire had occurred, and
then provided false information and/or concealed the truth
from State Farm in an effort to assist his father in his
attempt to recover benefits under the subject insurance
policy.” (ECF No. 52). The policy reads:
SECTION I AND II - CONDITIONS 2. Concealment or Fraud. This
policy is void as to you and any other insured, if you or any
other insured under this policy has intentionally concealed
or misrepresented any material fact or circumstance relating
to this insurance, whether before or after a loss.
(ECF No. 52-4).
and false swearing defense may be different than an arson
defense. See K & T Enterprises, Inc. v. Zurich Ins.
Co., 97 F.3d 171, 180 (6th Cir. 1996). See also J.C.
Wyckoff & Assoc., Inc., 936 F.2d at 1478, 1486
(arson defense failed while fraud and false swearing defense
succeeded); Northern Assurance Co. v. Rachlin Clothes
Shop, Inc., 32 Del. 406 (1924) (fraud and false swearing
defense failed while arson defense succeeded). Here, if
Turner had “come to know” that his father had a
wrongful connection to the fire after the fact, but concealed
or misrepresented that to State Farm, he would be precluded
from recovering under the policy. This is not the same as a
wrongful connection to the fire as described on the verdict
form, which read: “Do you find by a preponderance of
the evidence that Hassan Turner intentionally set or arranged
for the setting of the April 27, 2016 fire, or that he knew
of and consented to the setting of the fire?” (ECF
new trial, State Farm must show it was prejudiced by the
exclusion of the fraud instruction. See Dunn ex rel.
Albery v. State Farm Mut. Auto. Ins. Co., 724 F.Supp.2d
701, 714 (E.D. Mich. 2010). See also Kamenov v. N. Assur.
Co. of Am., 687 N.Y.S.2d 838, 840 (Moving party must
show that the evidence provided on behalf of the proposed
affirmative defense, if credited by a jury, would have
supported a verdict in moving party's favor).
Farm does did not ask Turner a single question about his
concealment of the fire after the fact. State Farm did not
ask Turner whether he knew if his father set the fire, when
he found out his father set the fire, or whether he
misrepresented any facts about the fire to State Farm. State
Farm's single question to Turner about whether he knew if
his father “had a reason” to set the fire falls
short of evidence supporting fraud or concealment (ECF No.
52-6). The limited information State Farm presents as
potential evidence of fraud or concealment does not support a
verdict for a fraud/concealment defense. See Smith v.
Lumbermen's Mut. Cas. Co., 360 So.2d 1098 (Fla.
Dist. Ct. App. 1st Dist. 1978) (“a party is entitled to
have the jury instructed on his or her theory of the case
when there is substantial evidence supporting the