Riley v. Travelers Home & Marine Ins. Co.

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C. ANDREW RILEY v. THE TRAVELERS HOME
AND MARINE INSURANCE COMPANY
(AC 37307)
DiPentima, C. J., and Sheldon and Bishop, Js.
Argued January 19—officially released May 23, 2017
(Appeal from Superior Court, judicial district of
Hartford, Complex Litigation Docket, D. Sheridan, J.)
Linda L. Morkan, with whom were Daniel F. Sulli-
van and, on the brief, Jonathan E. Small, for the appel-
lant-cross appellee (defendant).
Proloy K. Das, with whom were Kristen L. Zaeh-
ringer and Leonard M. Isaac, and, on the brief, Sarah
Gruber and James J. Nugent, for the appellee-cross
appellant (plaintiff).
Opinion
SHELDON, J. In this case arising from a fire at the
home of the plaintiff, C. Andrew Riley, both parties
appeal from the judgment of the trial court awarding
damages and prejudgment interest to the plaintiff
against his homeowners insurer, the defendant, Travel-
ers Home and Marine Insurance Company, upon the
jury’s verdict for the plaintiff on claims of breach of
contract and negligent infliction of emotional distress.
The defendant claims initially that the evidence
adduced at trial was insufficient to support the jury’s
verdict in favor of the plaintiff on his claim of negligent
infliction of emotional distress, and thus that the trial
court erred in denying its motions for judgment notwith-
standing the verdict, to set aside the verdict, and for
remittitur. The defendant also claims that the court
erred in allowing the plaintiff’s two expert witnesses
to testify over its objection at trial because one of those
witnesses was not qualified to render an expert opinion
in this case and neither witness had based his expert
opinions on a scientifically reliable methodology. In his
cross appeal, the plaintiff claims that the trial court
abused its discretion in awarding him prejudgment
interest pursuant to General Statutes § 37-3a at the rate
of 3 percent instead of 10 percent. We affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. On February 26, 2009, a fire destroyed a significant
portion of the plaintiff’s home in Pomfret, in which he
and his wife, Barbara Riley, had been living and raising
their children for more than twenty-five years. On the
morning of the fire, the plaintiff was working on a proj-
ect in a room on the first floor of his home when he
received a telephone call from ADT Security Services,
his home security service provider, notifying him that
it had received an alert that there was a fire in his
home. The plaintiff, initially in disbelief, immediately
proceeded to the second floor of his home to look for
the cause of the alert. Upon ascending the stairs, he
saw flames through the open door of a room at the top
of the stairs that was used as an office and exercise
room, in which he had been exercising earlier that
morning. Seeing that the room was engulfed in flames,
he initially attempted to close the door but could not
get it to stay closed. He thus took an old bathrobe from
the adjacent bedroom and draped it over the door to
keep it closed. In so doing, the plaintiff sustained a
minor burn on his arm. Finally, after retrieving his wife’s
jewelry from their bedroom, the plaintiff ran back
downstairs, confirmed with ADT that there was a fire
in his home, and went outside to wait for assistance.
Upon the arrival of multiple fire companies, the fire
was promptly extinguished. As a result of the fire, the
room in which the fire had occurred was essentially
destroyed, along with most of its contents, including
all of the family’s photograph albums, a Mother’s Day
card to Barbara Riley, a sonogram photo of one of
their children, and an uncashed check in the amount
of $30,000, which Barbara Riley had received as a work
bonus. Although the fire was contained in that one room
on the second floor, it caused extensive smoke damage
throughout the plaintiff’s home.
The town of Pomfret fire marshal, Adam Scheuritzel,
arrived at the scene of the fire shortly after it was
extinguished. He conducted an investigation of the
cause and origin of the fire, using a video camera
attached to his helmet to record his investigation. He
also took several still photographs of the scene. In addi-
tion to inspecting the scene of the fire, Scheuritzel
spoke to and obtained written statements from the
plaintiff and several firefighters who had responded to
the scene. Scheuritzel observed a kerosene heater and
a separate container of kerosene in the exercise room
where the fire had occurred, but he concluded that
the kerosene had played no role in causing the fire.
Scheuritzel concluded instead that the cause of the
fire had been accidental, having been started by an
electrical problem inside the wall of the exercise room.
The plaintiff immediately notified the defendant of
the fire. The defendant, which had issued a homeown-
er’s insurance policy containing standard provisions
insuring the plaintiff’s property for any loss due to fire,
then initiated its own investigation of the cause and
origin of the fire, and assigned one of its own employees,
John E. Schoener, a trained and certified fire investiga-
tor, to conduct that investigation. Schoener concluded
that ‘‘the fire originated in the vapors of an ignitable
liquid (kerosene) that was poured throughout the floor
area and on boxes of stored contents within the room
of fire origin. All accidental causes were eliminated as
a cause of this fire. The cause of this fire is classified
as an incendiary fire.’’
By letter dated May 26, 2009, the defendant denied
the plaintiff’s claim for insurance coverage, stating that
it had ‘‘concluded that [the plaintiff] intentionally
caused the fire which resulted in this claim.’’1 The defen-
dant later sent another letter to the plaintiff, dated June
16, 2009, ‘‘to advise [him] of an additional basis for the
denial of [his] claim.’’ The letter stated, ‘‘During the
investigation of this loss, [the plaintiff] concealed and/
or misrepresented material facts and circumstances
concerning the loss and made material false statements
relating to this loss and to his insurance coverage.’’2
Although the defendant denied the plaintiff’s claim, it
accepted the claim of Barbara Riley for personal prop-
erty of herself and other family members, and additional
living expenses incurred while repairs were being made
to the residence.
On October 18, 2011, the plaintiff initiated this action
against the defendant, claiming breach of contract and
negligent infliction of emotional distress. In response,
the defendant denied the plaintiff’s claims and, by way
of special defense, alleged, inter alia, that the plaintiff
had intentionally caused the fire to his home and had
‘‘concealed or misrepresented material facts or circum-
stances, engaged in fraudulent conduct, and/or made
materially false statements regarding the fire and insur-
ance claim.’’ The plaintiff denied the defendant’s spe-
cial defenses.
The case was tried to a jury in June, 2014. At the
conclusion of the plaintiff’s case-in-chief, the defendant
orally moved for a directed verdict on the plaintiff’s
claim of negligent infliction of emotional distress. The
trial court reserved judgment on that motion and pro-
ceeded with the trial. On June 23, 2014, the jury returned
a verdict in favor of the plaintiff. By way of special
interrogatories, the jury rejected the defendant’s special
defenses and found that the defendant had failed to
prove that the plaintiff had intentionally caused the fire
to his home or that he had ‘‘intentionally concealed
or misrepresented material facts or circumstances, or
engaged in fraudulent conduct, or made material false
statements relating to his insurance . . . .’’ The jury
found that the plaintiff had proved that the defendant
breached his homeowner’s insurance contract by deny-
ing his claim for coverage and refusing to pay for his
losses from the February 26, 2009 fire, and that he had
‘‘sustained [damages] as a result of the [defendant’s]
negligent infliction of emotional distress . . . .’’ The
jury awarded the plaintiff $504,346.10 in damages for
breach of contract and $1,000,000 in damages for negli-
gent infliction of emotional distress. The defendant
thereafter filed motions for judgment notwithstanding
the verdict, to set aside the verdict, and for remittitur.
The court denied those motions and these appeals fol-
lowed. Additional facts will be set forth as necessary.
I
The defendant first claims that the evidence adduced
at trial was insufficient to support the jury’s verdict in
favor of the plaintiff on his claim of negligent infliction
of emotional distress. In support of that claim, the
defendant argues (1) that the court erred in denying
its motions for a directed verdict and for judgment
notwithstanding the verdict on the ground that the
court, in deciding both motions, was limited to the
evidence adduced during the plaintiff’s case-in-chief,
which was insufficient to establish the plaintiff’s claim;
(2) that even if the trial court were not so limited, it
should have set aside the verdict because the plaintiff
failed to prove that he suffered severe emotional dis-
tress and that his emotional distress was proximately
caused by conduct of the defendant in addition to its
denial of his claim for coverage; and (3) that, in any
event, the court should have granted its motion for
remittitur because, ‘‘[g]iven the paucity of evidence of
emotional distress, the damage award shocks the con-
science.’’ We disagree.
On July 3, 2014, the defendant filed a motion for
judgment notwithstanding the verdict, a motion to set
aside the verdict, and a motion for remittitur. By way
of memorandum of decision filed September 26, 2014,
the trial court denied all of the defendant’s postverdict
motions. The defendant now challenges the denial of
its postverdict motions on the ground that the evidence
was insufficient to support the jury’s verdict on the
plaintiff’s claim of the negligent infliction of emo-
tional distress.
Our Supreme Court has stated ‘‘that directed verdicts
are disfavored because [l]itigants have a constitutional
right to have factual issues resolved by the jury. . . .
Accordingly, [o]ur review of a trial court’s [decision]
to direct a verdict or to render a judgment notwithstand-
ing the verdict takes place within carefully defined
parameters. . . . [I]n reviewing the trial court’s deci-
sion to render judgment notwithstanding the verdict,
we may affirm that decision only if we find that the
jury could not reasonably and legally have reached [its]
conclusion. . . . The question is not whether we would
have arrived at the same verdict, but whether, when
viewed in the light most favorable to sustaining the
verdict, the evidence supports the jury’s determination.
. . . A trial court may only grant a motion for judgment
notwithstanding the verdict if the jury reasonably and
legally could not have reached any other conclusion
. . . and must deny such a motion where it is apparent
that there was some evidence upon which the jury might
reasonably reach [its] conclusion . . . . We review a
trial court’s decision on a motion for judgment notwith-
standing the verdict for abuse of discretion.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Landmark Investment Group, LLC v. CALCO
Construction & Development Co., 318 Conn. 847, 862–
63, 124 A.3d 847 (2015).
Similarly, ‘‘[t]he standards governing our review of a
sufficiency of evidence claim are well established and
rigorous. . . . [I]t is not the function of this court to
sit as the seventh juror when we review the sufficiency
of the evidence . . . rather, we must determine, in the
light most favorable to sustaining the verdict, whether
the totality of the evidence, including reasonable infer-
ences therefrom, supports the jury’s verdict . . . . In
making this determination, [t]he evidence must be given
the most favorable construction in support of the ver-
dict of which it is reasonably capable. . . . In other
words, [i]f the jury could reasonably have reached its
conclusion, the verdict must stand, even if this court
disagrees with it. . . .
‘‘We apply this familiar and deferential scope of
review, however, in light of the equally familiar principle
that the plaintiff must produce sufficient evidence to
remove the jury’s function of examining inferences and
finding facts from the realm of speculation. . . . A
motion to set aside the verdict should be granted if the
jury reasonably and legally could not have reached the
determination that they did in fact reach.’’ (Citations
omitted; internal quotation marks omitted.) Carrol v.
Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119 (2003).
‘‘[I]n order to prevail on a claim of negligent infliction
of emotional distress, the plaintiff must prove that the
defendant should have realized that its conduct
involved an unreasonable risk of causing emotional dis-
tress and that that distress, if it were caused, might
result in illness or bodily harm.’’ (Internal quotation
marks omitted.) Id., 446. In other words, ‘‘[t]o prevail
on a claim of negligent infliction of emotional distress,
the plaintiff must prove: (1) the defendant’s conduct
created an unreasonable risk of causing the plaintiff
emotional distress; (2) the plaintiff’s distress was fore-
seeable; (3) the emotional distress was severe enough
that it might result in illness or bodily harm; and (4)
the defendant’s conduct was the cause of the plaintiff’s
distress.’’ (Internal quotation marks omitted.) Grasso
v. Connecticut Hospice, Inc., 138 Conn. App. 759, 771,
54 A.3d 221 (2012). With these principles in mind, we
address the defendant’s sufficiency arguments in turn.
A
In challenging the sufficiency of the evidence to sup-
port the jury’s verdict in favor of the plaintiff on his
claim of negligent infliction of emotional distress, the
defendant first argues that the trial court erred in
rejecting that challenge without limiting itself to consid-
ering the evidence adduced in the plaintiff’s case-in-
chief. We disagree.
The following additional procedural history is rele-
vant to this claim. The plaintiff rested his case on June
10, 2014. Immediately thereafter, the defendant orally
moved for a directed verdict on the plaintiff’s claim for
negligent infliction of emotional distress. The defendant
argued in support of that motion that although the plain-
tiff’s expert witness, Ronald R. Mullen, had testified as
to the ‘‘standard of care’’ for conducting a fire investiga-
tion, no evidence was adduced as to any deficiency in
its investigation of the fire, and thus the plaintiff had
failed to establish a prima facie case of negligence in
investigating his claim for insurance coverage, or, thus,
negligent infliction of emotional distress. In response,
the plaintiff pointed to the testimony of Scheuritzel and
Mullen, who attested to their respective conclusions as
to the accidental cause and origin of the fire in the
plaintiff’s home, as well as the defendant’s attempts to
influence and coerce his experts to change their reports
and support its claim of arson. Without reference to
specific portions of Mullen’s testimony, the plaintiff
argued that Mullen had, in fact, pointed to inadequacies
in the defendant’s investigation. Following that brief
argument by counsel, the court concluded: ‘‘[A]lthough
I’ve expressed some concerns about the state of the
pleadings and the evidence, it does seem to me there’s
sufficient evidence on this question, if not direct evi-
dence, certainly reasonable inferences where I could
reserve on that question pursuant to the Practice Book
and we’ll proceed to the defendant’s case.’’ The trial
thus continued on to verdict, which, as previously
noted, was returned in favor of the plaintiff.
In its motion for judgment notwithstanding the ver-
dict, the defendant renewed its motion for a directed
verdict. The defendant argued in that motion: ‘‘During
his case-in-chief, [the] plaintiff failed to present any
evidence (other than the letter denying his insurance
claim) that would permit the jury to reasonably con-
clude that [the defendant] is liable to him for the negli-
gent infliction of emotional distress. [The] plaintiff
chose not to offer expert testimony regarding the integ-
rity of [the defendant’s] fire origin and cause investiga-
tion, or to call [the defendant’s] employees who
conducted the investigation to demonstrate their
alleged unreasonable or egregious misconduct in the
investigation of the fire.’’ The defendant further argued:
‘‘[W]hile [the] plaintiff developed additional evidence
regarding [the defendant’s] conduct on cross-examina-
tion of [the defendant’s] employees who testified on
behalf of the defense, this evidence and testimony can-
not be considered in evaluating whether [the] plaintiff
met [his] burden in [his] case-in-chief and in reaching
a determination on [the defendant’s] motion.’’
Although not precisely argued before the trial court,
the defendant’s references to the plaintiff’s ‘‘case-in-
chief’’ can be construed to have raised its present claim
that the court was confined to the evidence adduced
during the plaintiff’s case-in-chief when considering its
motions for a directed verdict and for judgment notwith-
standing the verdict. The law on this issue, however,
is well settled.
‘‘[W]hen a trial court denies a defendant’s motion for
a directed verdict at the close of the plaintiff’s case,
the defendant, by opting to introduce evidence in his
or her own behalf, waives the right to appeal the trial
court’s ruling. . . . The rationale for this rule is that,
by introducing evidence, the defendant undertakes a
risk that the testimony of defense witnesses will fill an
evidentiary gap in the [plaintiff’s] case. . . . On appeal
in such cases, the question becomes whether . . .
there is evidence in the entire record to justify submit-
ting the matter to a trier of fact. . . . Although we have
questioned the continuing viability of the waiver rule
in the criminal context . . . we have never questioned
its applicability in the civil context.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Elliott v. Larson,
81 Conn. App. 468, 471–72, 840 A.2d 59 (2004). Our
Supreme Court has explained the logic of this rule as
follows: ‘‘The waiver rule supports fact-finding and the
ultimate truth seeking function of a trial . . . [because
it] eliminates the bizarre result that could occur in its
absence, namely, that a [judgment] could be reversed
for evidentiary insufficiency, despite evidence in the
record sufficiently establishing [liability].’’ (Citations
omitted.) State v. Perkins, 271 Conn. 218, 237–38, 856
A.2d 917 (2004). To reach a contrary conclusion, the
Court explained, would result in ‘‘a perception of the
. . . trial as a sporting event in which the rules of the
game trump the search for truth.’’ Id., 245.
Here, because the defendant, after unsuccessfully
moving for a directed verdict after the plaintiff rested,
went on to present evidence on its claims that the plain-
tiff intentionally set fire to his house, engaged in fraudu-
lent conduct and intentionally misrepresented or
concealed material facts throughout the investigation
as to the cause and origin of the fire, it is precluded by
the waiver rule from claiming that the trial court was
limited in its review of the sufficiency of the evidence
to the evidence presented in the plaintiff’s case-in-chief.
Although the evidence presented by the defendant,
which consisted almost exclusively of testimony of vari-
ous employees of the defendant—evidence described
by the defendant as ‘‘vitally important to [its] success
on its special defenses’’—had the effect of underscoring
the inadequacies of its investigation of the fire, that was
a risk the defendant assumed when it chose to present
defense evidence at trial. Our case law, as quoted pre-
viously, makes it clear that the defendant is now bound
by its choice to roll the proverbial dice by presenting
its own evidence at trial. It therefore cannot claim error
as to the trial court’s prior denial, based solely upon
the evidence presented in the plaintiff’s case-in-chief,
of its midtrial motion for a directed verdict.
B
The defendant next claims that the evidence adduced
in the entire trial was insufficient to support the jury’s
verdict that the emotional distress allegedly suffered
by the plaintiff was both proximately caused by the
defendant and severe enough that it might have resulted
in illness or bodily harm. We disagree.
In its motion to set aside the verdict and for a new
trial, the defendant, inter alia, ‘‘expressly incorporate[d]
th[e] arguments [set forth in the simultaneously filed
motion for judgment notwithstanding the verdict]’’ and
added that the plaintiff had also failed to present or elicit
evidence of negligent infliction of emotional distress
during the defendant’s case. The defendant argued that,
at most, the plaintiff had proved that the defendant had
breached its contract with him, but that a denial of
coverage was an insufficient basis for establishing a
claim of negligent infliction of emotional distress.
In denying the defendant’s motion for judgment not-
withstanding the verdict, the court reasoned: ‘‘Viewing
the totality of the evidence in a light most favorable to
sustaining the verdict, the court rejects the defendant’s
claim that the plaintiff did not prove any of the elements
required for negligent infliction of emotional distress.
‘‘There was sufficient evidence that the plaintiff’s dis-
tress was reasonable in light of the defendant’s conduct.
The defendant conducted its investigation using its own
employees to establish whether the fire that occurred
at the plaintiff’s residence was intentionally set. The
defendant was required to conduct itself reasonably
in conducting its investigation, since an accusation of
arson insurance fraud would obviously have far-reach-
ing personal, criminal and financial consequences for
an innocent policyholder. That an innocent man falsely
accused would suffer emotional distress is self-evident.
The impact is aptly described in George Eliot’s classic
[1861] novel, Silas Marner, a tale of a man falsely
accused of stealing, where it is observed that: ‘deep are
the sorrows that spring from false ideas for which no
man is culpable.’
‘‘The jury had evidence from which it could have
concluded that, despite the town of Pomfret fire mar-
shal’s finding that the fire was accidental in origin, [the
defendant’s] principal fire investigator . . . Schoener,
almost immediately suspected the plaintiff of having
intentionally set the fire, and set out to prove his suspi-
cion. This ‘rush to judgment,’ or working backward
from a predetermined conclusion of arson rather than
following the evidence to a logical conclusion, was a
central theme of the plaintiff’s case. The jury heard
evidence, which, if believed, would have supported a
determination that during the course of [the] investiga-
tion, Schoener ‘fabricated’ evidence to establish arson.
Moreover, even without finding that evidence was inten-
tionally fabricated, the jury could have reasonably
inferred that the [the defendant’s] investigation was
plagued by ‘confirmation bias’—the tendency to overly
weigh evidence that agrees with one’s preconceived
notions and downgrade the importance of evidence that
disagrees with one’s preconceived notions.
‘‘The jury heard evidence that Schoener contacted
the town of Pomfret fire marshal and forcefully urged
him to change his conclusion of an accidental fire and
classify the fire as intentionally set. The jury also heard
evidence that Schoener approached the plaintiff’s fire
investigator . . . Mullen, and through an ‘interrogation
technique’ involving falsehood and subterfuge,
attempted to acquire information about the plaintiff’s
investigation of the fire. The jury also heard that during
that conversation with Mullen, Schoener denigrated the
state of the plaintiff’s marriage, believing that to be a
possible motive for the arson. The jury could reasonably
have inferred from these extraordinary efforts to dispar-
age and harm the plaintiff—efforts which appeared to
be well outside the realm of a normal fire investiga-
tion—that (as [the] plaintiff’s counsel argued) Schoener
was ‘out to get’ the plaintiff and that a denial of coverage
based on an accusation of arson—whether or not it
was actually true—was the inevitable outcome of such
a biased and flawed investigation.
‘‘Finally, although he denied it, based on the evidence
presented, the jury could have reasonably inferred that
Schoener was motivated to find arson in order to
advance his employment with the defendant.
‘‘For these reasons, the court finds that there was
sufficient evidence to support a finding that the defen-
dant’s conduct created an unreasonable risk of causing
the plaintiff’s emotional distress and that the plaintiff’s
distress was foreseeable.
‘‘In addition, there was sufficient evidence that the
plaintiff’s distress was severe enough for the jury rea-
sonably to conclude that it might result in illness or
bodily harm. The jury heard testimony that when the
plaintiff learned that coverage had been denied based
on [the defendant’s] conclusion that the fire had been
intentionally set, he was ‘shocked’ and tremendously
upset. The plaintiff’s wife testified that the plaintiff’s
physical appearance reflected how much he had been
staggered and taken aback: ‘I remember thinking that
the color of his face looked different, his skin color
looked different.’ Witnesses recounted the plaintiff’s
subsequent emotional state as he ‘carried the burden’
of a false accusation of arson, variously describing emo-
tions of shame, embarrassment, unhappiness and
depression. Witnesses also described behavioral
changes in the plaintiff such as irritability and moodi-
ness, and withdrawal from family and friends. From
all [of] this testimony, the jury could have reasonably
concluded that the long-term effect of this emotional
turmoil might be physical illness or bodily harm.
‘‘Finally, there was sufficient evidence from which
the jury could find causation. The plaintiff’s wife and
daughter testified to a marked change in the plaintiff’s
moods, demeanor and behavior in the wake of the accu-
sation of arson. The plaintiff himself testified to changes
in the wake of the denial of coverage: ‘I just plain pulled
into a shell and, you know, I was—I spent a long time
waiting for the state police to come and take me away.’ ’’
On the basis of the foregoing findings, the court con-
cluded that ‘‘there was sufficient evidence for the jury
reasonably to have concluded as it did.’’ The court thus
denied the defendant’s motion for judgment notwith-
standing the verdict.
The court then turned to the defendant’s motion to set
aside the verdict. The court reasoned: ‘‘The defendant
argues that the verdict for the plaintiff on the claim of
negligent infliction of emotional distress is against the
weight of the evidence because that evidence ‘at most,
shows that [the defendant] breached the contract of
insurance.’ . . . The court disagrees. As has been dis-
cussed in the context of the motion for judgment not-
withstanding the verdict, viewing all of the evidence in
the light most favorable to sustaining the verdict, a jury
could reasonably find that [the defendant’s] conduct in
investigating the plaintiff’s claim was egregious and
beyond the bounds of socially tolerable behavior.’’
(Citation omitted.)
The court compared the facts of this case to those
discussed by our Supreme Court in the earlier case of
Carrol v. Allstate Ins. Co., supra, 262 Conn. 444. The
court explained: ‘‘In Carrol . . . under similar facts,
our Supreme Court has upheld a finding of negligent
infliction of emotional distress which arose when a
homeowner’s insurance company ‘abused its right to
investigate the origin of the fire at the plaintiff’s house
by conducting an investigation that was hasty, incom-
plete and ill-reasoned, thereby causing emotional dis-
tress to the plaintiff.’ Id., 450. The emotional distress
here sprang from unjustified accusations of dishonest,
immoral and criminal activity and not merely from a
breach of an obligation to pay . . . insurance pro-
ceeds. The defendant attempts to distinguish the Carrol
decision because the jury in that case could reasonably
have found that the fire investigation was ‘tainted by
racial animus’—and there is no such evidence in the
present case. The court finds the distinction unavailing
and the Carrol decision highly instructive as to the
present motion.
‘‘Although racial animus ‘might have played a role’
[id., 445] in the finding of arson [in Carrol], the court
also suggested that the jury could have based its verdict
on other factors that ‘tainted’ the investigation, such as
the inference that the investigator ‘was motivated to
find arson in order to ensure his continued employment
by the defendant.’ [Carrol v. Allstate Ins. Co., supra,
262 Conn.] 445. . . . In the present case, testimony was
elicited regarding the defendant’s employee and princi-
pal fire investigator . . . Schoener, and the possible
influence of his findings in this case upon his continued
employment, advancement, and training.
‘‘Also, in a footnote, the Carrol court noted that the
plaintiff’s ‘theme’ [id., 440 n.9] throughout the trial was
that the defendant impulsively concluded that the fire
was caused by arson and never backed off this conclu-
sion despite substantial evidence to the contrary. In
the final argument in Carrol, [the] plaintiff’s counsel
suggested that the investigator ‘concluded that this man
tried to burn his house down. And, then he spent the
rest of the time trying to make sure it could stick.’ [Id.,
449 n.11.] Similar arguments were made in the present
case and the jury was asked to draw similar inferences
from the conduct and statements of the defendant’s
principal investigator . . . Schoener. In the view of this
court, the similarities between Carrol and the present
case are far more enlightening than the differences.
‘‘Moreover, nowhere in Carrol is there a suggestion
that a false accusation of arson can be considered ‘egre-
gious and beyond the bounds of socially tolerable
behavior’ only when it is motivated by racial prejudice.
Regardless of the underlying motivation, any reason-
able person would believe that falsely accusing an indi-
vidual of the heinous crime of arson is abhorrent and
reprehensible conduct.’’ (Emphasis in original.)
The court thus found that ‘‘[t]here was sufficient evi-
dence upon which the jury might reasonably have based
its verdict in favor of the plaintiff’’ and, accordingly,
denied the defendant’s motion to set aside the verdict.
The defendant claims that the evidence adduced at
trial was insufficient to support the jury’s verdict that
the defendant’s conduct proximately caused the plain-
tiff to suffer emotional distress and that said emotional
distress was sufficiently severe to establish negligent
infliction of emotional distress.3 The plaintiff concedes,
as he must, that the defendant’s denial of his claim for
coverage, alone, would not have been legally sufficient
to establish his claim of negligent infliction of emotional
distress. See Montinieri v. Southern New England Tele-
phone Co., 175 Conn. 337, 341, 398 A.2d 1180 (1978)
(‘‘mere breach of the contract would not afford a basis
for a recovery in tort’’ [internal quotation marks omit-
ted]). It is clear from the trial record, however, that the
plaintiff’s claim for emotional distress was not based
only upon the denial of his claim for coverage. Rather,
the plaintiff’s claim was also based upon the defendant’s
contemporaneous accusation that he had intentionally
caused the fire in his own home, and thus committed
the crime of arson.
The plaintiff testified, as more fully recounted herein,
that he became obsessed with ‘‘clearing his name’’ and
‘‘withdrew’’ from his family, friends and community due
to the shame that he experienced as a result of the
defendant’s accusation. He explained to the jury that
he would lie awake at night wondering if the police
were going to arrive and arrest him. The plaintiff further
testified that the accusation of arson caused him to
withdraw from a certain business venture so as to not
impugn the business by its association with a person
accused of committing an act so dishonest and criminal
in nature as arson. The plaintiff’s closing argument
focused on the defendant’s act of ‘‘label[ing] him a filthy
word’’—an arsonist—as the conduct that caused him
to suffer severe emotional distress. We thus agree with
the trial court’s conclusion that ‘‘[t]he [plaintiff’s] emo-
tional distress sprang from unjustified accusations of
dishonest, immoral and criminal activity and not merely
from a breach of an obligation to pay . . . insurance
proceeds.’’ The defendant’s claim that the evidence pre-
sented at trial was insufficient to prove that its conduct
proximately caused the plaintiff emotional distress is
therefore unavailing.
We also agree with the trial court’s determination
that there was sufficient evidence that the plaintiff’s
emotional distress was ‘‘severe enough that it might
result in illness or bodily harm . . . .’’ (Internal quota-
tion marks omitted.) Grasso v. Connecticut Hospice,
Inc., supra, 138 Conn. App. 771. We are again guided
by our Supreme Court’s analysis in Carrol, where the
plaintiff had suffered emotional distress similar to that
suffered by the plaintiff here. In addressing the require-
ment that the emotional distress suffered by the plaintiff
was severe enough that it might have resulted in illness
or bodily harm, the Carrol court explained: ‘‘This court
. . . in Montinieri v. Southern New England Telephone
Co., [supra, 175 Conn. 344], concluded that there is no
logical reason for making a distinction, for purposes of
determining liability, between those cases where the
emotional distress results in bodily injury and those
cases where there is emotional distress only. . . . The
only requirement is that the distress might result in
illness or bodily harm. The plaintiff testified that he
could not sleep, had frequent nightmares, had a loss of
appetite, and experienced depression and a sense of
isolation from his community because of the investiga-
tion.’’ (Citation omitted; internal quotation marks omit-
ted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 448.
On that basis, the court concluded that the emotional
distress suffered by the plaintiff was severe enough that
it might have resulted in illness or bodily harm. Id.
Here, the emotional distress suffered by the plaintiff
was akin to that suffered by the plaintiff in Carrol.4
Evidence was presented at trial regarding the impact
that the defendant’s accusation of arson had on him
personally, on his relationships with his family and
friends, and on his career. The testimony presented at
trial revealed the emotional toll borne by the plaintiff
upon being accused of intentionally setting his family’s
home on fire, and the frustration, humiliation and fear
he experienced ‘‘every waking moment’’ for almost five
years after being accused of a crime that he described
as ‘‘despicable beyond belief.’’ The emotions experi-
enced by the plaintiff were consistent with those one
might feel when falsely accused of intentional and crimi-
nal conduct. It cannot reasonably be argued that such
distress was not so severe that it might have resulted
in illness or bodily harm.
C
The defendant finally challenges the sufficiency of
the evidence to support the amount of damages that
the jury awarded to the plaintiff on his claim of negligent
infliction of emotional distress. To reiterate, the defen-
dant claims that the court improperly denied its motion
for remittitur of the jury’s $1,000,000 award on the
ground that ‘‘[g]iven the paucity of evidence of emo-
tional distress, the damage award shocks the con-
science.’’ We disagree.
‘‘Because an award of damages is a matter peculiarly
within the province of the trier of facts, we have held
consistently that a court should exercise its authority
to order a remittitur rarely—only in the most excep-
tional of circumstances. . . . In determining whether
to order remittitur, the trial court is required to review
the evidence in the light most favorable to sustaining
the verdict. . . . Upon completing that review, the
court should not interfere with the jury’s determination
except when the verdict is plainly excessive or exorbi-
tant. . . . The ultimate test which must be applied to
the verdict by the trial court is whether the jury’s award
falls somewhere within the necessarily uncertain limits
of just damages or whether the size of the verdict so
shocks the sense of justice as to compel the conclusion
that the jury [was] influenced by partiality, prejudice,
mistake or corruption. . . . The court’s broad power
to order a remittitur should be exercised only when it
is manifest that the jury [has] included items of damage
which are contrary to law, not supported by proof,
or contrary to the court’s explicit and unchallenged
instructions. . . .
‘‘Furthermore, [t]he decision whether to reduce a jury
verdict because it is excessive as a matter of law . . .
rests solely within the discretion of the trial court. . . .
[Consequently], the proper standard of review of a trial
court’s decision to grant or deny a motion to set aside
a verdict as excessive as a matter of law is that of abuse
of discretion. . . . Accordingly, the ruling of the trial
court on the motion to set aside the verdict as excessive
is entitled to great weight and every reasonable pre-
sumption should be given in favor of its correctness.’’
(Citations omitted; internal quotation marks omitted.)
Patino v. Birken Mfg. Co., 304 Conn. 679, 705–706, 41
A.3d 1013 (2012).
In its motion for remittitur, the defendant argued,
inter alia, that the amount of damages awarded by the
jury on the plaintiff’s claim for negligent infliction of
emotional distress was ‘‘excessive as a matter of law’’
and was ‘‘grossly disproportionate to the harm suffered’’
by the plaintiff, which was ‘‘general and subjective.’’ The
trial court disagreed, reasoning, inter alia, as follows:
‘‘There was ample evidence before the jury that the
plaintiff exhibited personality and behavior changes
caused by emotional upset or anguish in the wake of
[the] defendant’s arson investigation. The plaintiff testi-
fied that over the four-plus years between the denial
of coverage and the trial, he was beset by tumultuous
emotions. ‘There have been plenty of nights where, you
know, you lie in bed and wonder, are the state police
going to come to my door and take me away in hand-
cuffs?’ He withdrew from his family, friends and youn-
gest son. As the plaintiff himself testified, he ‘pulled
into a shell.’ There was testimony that the plaintiff was
at various times ‘irritable’ and ‘brooding,’ or ‘downtrod-
den’ and ‘depressed.’ The plaintiff (and others) testified
that he ‘put his life on hold’ and became ‘obsessed with
clearing his name.’ He felt compelled to forgo business
opportunities and ‘avoided’ friends and acquaintances
on account of the ‘stigma’ of having been accused of
intentionally setting fire to his home for money. The
testimony established that these were emotions, atti-
tudes and behaviors not seen before in the plaintiff,
who was typically good-natured, gregarious, confident
and cheerful.’’
The court noted that although the award of damages
was ‘‘remarkably generous,’’ it could not find that it
‘‘fell outside the necessarily uncertain limits of fair and
reasonable compensation.’’ The court further found:
‘‘There is nothing in the record to suggest that the jury
acted under the sway of passion or prejudice, or
included items of damages that were contrary to the
court’s instructions or unsupported by proof. By all
appearances, the members of the jury solemnly and
diligently fulfilled their duty to weigh the evidence and
render an award of damages that, based on their collec-
tive judgment, represented fair, just and reasonable
compensation.’’
In denying the defendant’s motion for remittitur, the
court again referenced Carrol, which also involved
emotional distress arising from a false allegation of
arson. The court explained: ‘‘Determining the range of
reasonable compensation for a given injury is never
easy and cannot be reduced to a precise arithmetical
calculation. However, as the parties have noted, this
jury award of substantial emotional distress damages
in connection with a denial of coverage for a fire loss
is not entirely precedent setting. In Carrol v. Allstate
Ins. Co., [supra] 262 Conn. 437 . . . previously dis-
cussed, the jury awarded the plaintiff $500,000 as dam-
ages for emotional distress. On appeal, it was held that
the court did not abuse its discretion in refusing to
order a remittitur. The testimony in Carrol as to the
impact upon the plaintiff of the false accusation of arson
was not markedly dissimilar from the description of
the plaintiff offered in this case. And the court takes
judicial notice of the fact that $500,000 awarded in 2001
would, when adjusted for inflation using commonly
accepted inflation calculators, be the equivalent of an
approximately $675,000 award in 2014.’’
In light of the testimony regarding the emotional dis-
tress suffered by the plaintiff resulting from the
unfounded allegations that he had set his own family’s
house on fire and engaged in fraudulent conduct to hide
his allegedly intentional criminal conduct, distress that
likely and logically would be experienced by anyone
placed in that position, it cannot reasonably be argued
that the jury’s verdict was ‘‘plainly excessive or exorbi-
tant.’’ (Internal quotation marks omitted.) Patino v.
Birken Mfg. Co., supra, 304 Conn. 706. The testimony
of the plaintiff himself and those close to him reveals
that the defendant’s allegations weighed heavily on him
every day from the date that he received the first letter
of denial from the defendant in 2009 to the date the jury
returned its verdict. Although it is difficult to quantify
emotional distress precisely, we agree with the trial
court that the jury’s award was well within the realm
of fair and reasonable compensation.
II
The defendant also claims that the court erred in
denying its motion to preclude the plaintiff’s disclosed
experts, Scheuritzel and Mullen, from testifying on his
behalf as to the cause and origin of the fire in the
plaintiff’s home. Specifically, the defendant claims that
the proffered expert testimony should have been pre-
cluded pursuant to State v. Porter, 241 Conn. 57, 68–69,
698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.
Ct. 1384, 140 L. Ed. 2d 645 (1998), because Scheuritzel
was not qualified to render an expert opinion and nei-
ther he nor Mullen ‘‘professed to follow a scientific
methodology which satisfied the Porter standard.’’ The
defendant also argues that the court erred in failing to
hold an evidentiary hearing on its motion to preclude.
We disagree.
The following procedural history is relevant to this
claim. On April 28, 2014, the defendant moved in limine
to preclude the expert testimony of Scheuritzel and
Mullen. The defendant argued therein: ‘‘Scheuritzel’s
purported opinion testimony should first be precluded
because he is simply not qualified to testify as an expert
witness on the origin and cause of the fire at issue in
this case. Moreover, both . . . Scheuritzel’s and . . .
Mullen’s opinions should be precluded because the
methodologies underlying their scientific theories are
not valid and therefore unreliable.’’ In so arguing, the
defendant noted that both of the plaintiff’s expert wit-
nesses had correctly ‘‘recognized [National Fire Protec-
tion Association standard 921 (standard 921)] as
authoritative on the subject of the investigation of fires.
. . . Investigations that comply with [standard] 921 are
grounded in the scientific method, which is both desir-
able and necessary for accurate fire investigations.’’5
(Citations omitted.) Scheuritzel and Mullen testified
that they were trained in the guidelines set forth in
standard 921 and generally adhered to those guidelines
in conducting their respective investigations of the fire
in the plaintiff’s home. The defendant claimed, however,
that neither witness, in fact, adhered to the methodol-
ogy prescribed by standard 921. The defendant claimed
that Scheuritzel, instead, based his investigation on his
‘‘vaguely generalized ‘experience and training,’ ’’ and
Mullen failed to thoroughly investigate any theories as
to the cause of the fire beyond an electrical fault and
that he failed to consult an electrical consultant. On
those bases, the defendant claimed that their testimony
was unreliable and must be precluded.
On May 9, 2014, the court denied the defendant’s
motion to preclude. In so doing, the court recounted
Scheuritzel’s experience and qualifications and rejected
the defendant’s contention that he was not qualified to
render an expert opinion. The court also rejected the
defendant’s claim that the testimony of the plaintiff’s
experts was not scientifically reliable. The court rea-
soned: ‘‘The methodology for the fire investigation con-
ducted by Scheuritzel and Mullen appears to have been
based in large part on their training and experience as
fire marshals within the state of Connecticut, which
would suggest that those techniques have gained some
general acceptance. Nonetheless, the defendant argues
that it must be excluded because Scheuritzel and Mullen
failed to adhere to the methodology set forth in [stan-
dard] 921. There is no controlling appellate authority
within this state as to whether [standard] 921 has so
conclusively defined the field of fire investigation as to
make any expert opinion based on a methodology other
than [standard] 921 inherently unreliable or unscien-
tific. Having reviewed excerpts from the depositions of
Scheuritzel and Mullen, the court does not find their
testimony to be based on any of the scientific insuffi-
ciencies—such as ‘novel techniques’ or ‘conjecture or
speculation’—that were identified in State v. Porter
[supra, 241 Conn. 57] as being the hallmarks of expert
testimony that does not meet the threshold of admissi-
bility. . . . Excerpts from the depositions demonstrate
that Scheuritzel and Mullen will no doubt be subjected
to vigorous cross-examination as to how they came to
reach their opinions. Their various departures from the
[standard] 921 methodology for fire investigation will
certainly be ‘fodder for cross-examination’ and will go
to the weight, not the admissibility, of the expert testi-
mony.’’ (Citation omitted.)
Scheuritzel and Mullen were thus permitted to pre-
sent expert testimony at trial regarding the origin and
cause of the fire at the plaintiff’s home. Here, Scheurit-
zel and Mullen acknowledged standard 921 as authorita-
tive in the investigation of fires, and both testified that
they had been trained in and adhered to the methodolo-
gies set forth therein. Both witnesses had extensive
experience investigating fires and concluded that the
fire had been accidental in nature and caused by an
electric fault inside the wall of the exercise room on
the second floor of the plaintiff’s home. Upon arriving at
the scene of the fire at the plaintiff’s home, Scheuritzel,
acting in his official capacity as chief fire marshal for
the town of Pomfret, conducted a cause and origin
investigation of the fire. Throughout his investigation
and in reaching his conclusions as to the cause and
origin of the fire, Scheuritzel employed and relied upon
his twenty-three years of training and experience. The
camera on his helmet recorded his actions, and he took
several still photographs of the scene. Scheuritzel spoke
to and obtained written statements from the plaintiff
and several firefighters who had responded at the scene,
who provided various observations about the way the
fire was burning, the color of the smoke, and the amount
of time it took them to suppress the fire. Scheuritzel
explained that he concluded that the fire originated
inside the wall of the exercise room based upon his
observation of V patterns and charring. Scheuritzel also
testified that he observed beads of melted copper
caused by an electric arc, which in turn was likely
caused by a short circuit caused by rodent damage.
He testified that he considered and eliminated other
possible causes of the fire, and concluded that the fault
of the electrical wiring in the wall was the cause. He
observed the kerosene heater in the room and was
aware that there had been a separate container of kero-
sene in the room during the fire, which had been spilled
by the firefighters and moved to the bathtub. He elimi-
nated the kerosene as a possible cause of the fire, how-
ever, because only the area near the heater smelled of
kerosene and he noted no other evidence of accelerant
during his investigation.
Mullen also employed and relied upon his training
and experience, which dates back to 1981, throughout
his investigation of the fire in this case. He went to the
plaintiff’s home to observe and investigate the fire scene
himself. Although many items had been removed from
the scene by the time of his arrival, he was able to
inspect the floor and walls of the room where the fire
occurred for evidence of incendiary fluids and burn
patterns. He viewed the video recording of the scene
from the day of the fire that was taken by the camera on
Scheuritzel’s helmet. He also read Scheuritzel’s report,
including the statements of the firefighters with whom
Scheuritzel had spoken. Finally, he viewed many photo-
graphs that had been taken on the day of the fire. On
the basis of his investigation, Mullen agreed with Scheu-
ritzel that the fire at the plaintiff’s home was accidental,
having been caused by an electrical fault inside the wall
of the exercise room. Mullen rejected the defendant’s
theory that the plaintiff had intentionally started the
fire by dousing the room with kerosene because there
simply was not enough damage to the room to support
that theory. He further explained that he had observed
no burn patterns on the floor that were consistent with
the presence of an ignitable fluid.
In its motion to set aside the verdict, the defendant
reiterated its argument that the testimony of Scheuritzel
and Mullen should have been precluded because it was
not scientifically reliable. The court disagreed,
explaining: ‘‘[B]oth witnesses were subjected to vigor-
ous cross-examination about their investigative meth-
ods, including the fact that, having recognized
[standard] 921 as authoritative on the subject, both
experts’ investigations were arguably not conducted in
strict accordance with [standard] 921. Both experts
were questioned about their failure to investigate the
presence of kerosene in the room and their failure to
examine or test the physical evidence before reaching
their conclusions. Under a Porter standard, those
alleged deviations from [standard] 921 methodology
went to the weight, and not the admissibility, of the
expert testimony.’’ This appeal followed.
‘‘We review a trial court’s decision [regarding the
admission of] expert testimony for an abuse of discre-
tion. . . . We afford our trial courts wide discretion in
determining whether to admit expert testimony and,
unless the trial court’s decision is unreasonable, made
on untenable grounds . . . or involves a clear miscon-
ception of the law, we will not disturb its decision. . . .
Although we afford trial courts significant discretion,
[w]here it clearly appears that an expert witness is
qualified to give an opinion, the exclusion of his testi-
mony may be found to be [an abuse of discretion]. . . .
To the extent the trial court makes factual findings to
support its decision, we will accept those findings
unless they are clearly improper. . . . If we determine
that a court acted improperly with respect to the admis-
sibility of expert testimony, we will reverse the trial
court’s judgment and grant a new trial only if the impro-
priety was harmful to the appealing party. . . .
‘‘We also note our standards for admitting expert
testimony. Expert testimony should be admitted when:
(1) the witness has a special skill or knowledge directly
applicable to a matter in issue, (2) that skill or knowl-
edge is not common to the average person, and (3)
the testimony would be helpful to the court or jury in
considering the issues. . . . [T]o render an expert opin-
ion the witness must be qualified to do so and there must
be a factual basis for the opinion.’’ (Citations omitted;
internal quotation marks omitted.) Weaver v. McKnight,
313 Conn. 393, 405–406, 97 A.3d 920 (2014).
Here, the trial court found that Scheuritzel was quali-
fied to render expert testimony regarding the cause and
origin of the fire at the plaintiff’s home. Specifically,
the court found that ‘‘[Scheuritzel] has been engaged
in the firefighting and fire protection service in various
localities in Connecticut in various capacities since
1987. He was awarded a fire marshal certificate by the
state of Connecticut in 2003. As part of his training
from [the] state of Connecticut for the fire marshal
certification, he received training in investigations of
fires and explosions. . . . Thereafter, from 2003 to
2011, he undertook thirty hours of . . . annual training
and education for fire marshals. He has participated in
(either as the principal investigator or as an assisting
investigator) approximately thirty fire investigations.
At the time of the fire which is the subject of this lawsuit,
he was the chief fire marshal for the town of Pomfret.
He investigated this fire, spending two hours at [the]
scene and making a determination as to where the fire
originated.’’ On those bases, the court found that Scheu-
ritzel had a special skill or knowledge that is applicable
to this case, was not common to the average person,
and would assist the jury in reaching its verdict. The
court’s findings are supported by the record. We thus
conclude that the court did not abuse its discretion in
finding that Scheuritzel was qualified to provide expert
testimony in this case.
‘‘[B]eyond [the] . . . general requirements regarding
the admissibility of expert testimony, [t]here is a further
hurdle to the admissibility of expert testimony when
that testimony is based on . . . scientific [evidence].
In those situations, the scientific evidence that forms
the basis for the expert’s opinion must undergo a
[threshold] validity assessment [by the court] to ensure
reliability. State v. Porter, [supra] 241 Conn. 68–69
. . . . In Porter, this court followed the United States
Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and held that scientific evi-
dence should be subjected to a flexible test, with dif-
fering factors that are applied on a case-by-case basis,
to determine the reliability of the scientific evidence.
. . . Porter explicitly stated that the flexible Daubert
approach was a better approach than the test of general
acceptance in the scientific community, which was
established in Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923). . . . Following State v. Porter, supra, 81–84,
scientific evidence, and expert testimony based
thereon, usually is to be evaluated under a threshold
admissibility standard assessing the reliability of the
methodology underlying the evidence and whether the
evidence at issue is, in fact, derived from and based
upon that methodology . . . .
‘‘The mere fact that scientific evidence is sought to
be admitted into evidence, however, does not require
necessarily that a Porter inquiry be conducted as to the
threshold admissibility of the evidence. As we have
recognized, some scientific principles have become so
well established that [a threshold admissibility] analysis
is not necessary for admission of evidence thereunder.
. . . Evidence derived from such principles would
clearly withstand [such an] analysis, and thus may be
admitted simply on a showing of relevance. . . .
‘‘Moreover, certain types of evidence, although osten-
sibly rooted in scientific principles and presented by
expert witnesses with scientific training, are not scien-
tific for . . . purposes of our admissibility standard for
scientific evidence, either before or after Porter [was
decided]. . . . Thus, even evidence with its roots in
scientific principles, which is within the comprehension
of the average juror and which allows the jury to make
its own conclusions based on its independent powers
of observation and physical comparison, and without
heavy reliance upon the testimony of an expert witness,
need not be considered scientific in nature for . . .
purposes of evidentiary admissibility. . . . [E]vidence
. . . which merely places a jury . . . in a position to
weigh the probative value of the testimony without
abandoning common sense and sacrificing independent
judgment to the expert’s assertions based on his special
skill or knowledge . . . is not the type of scientific
evidence within the contemplation of Porter, and simi-
larly was not within the ambit of our standard for
assessing scientific evidence prior to Porter.’’ (Citations
omitted; internal quotation marks omitted.) State v.
West, 274 Conn. 605, 630–31, 877 A.2d 787, cert. denied,
546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
‘‘[Q]uestions about the methodological validity of
proffered scientific testimony will generally go to the
weight of such evidence, not to its admissibility. Courts
should exclude scientific evidence, however, when such
concerns render the technique, and the resulting evi-
dence, incapable of assisting the fact finder in a suffi-
ciently meaningful way. . . . Moreover, in light of the
traditional policy regarding the admission of relevant
evidence, [a] judge frequently should find an expert’s
methodology helpful [and thus admissible] even when
the judge thinks that the expert’s technique has flaws
sufficient to render the [expert’s] conclusions inaccu-
rate. He or she will often still believe that hearing the
expert’s testimony and assessing its flaws was an
important part of assessing what conclusion was cor-
rect and may certainly still believe that a jury attempting
to reach an accurate result should consider the evi-
dence. . . . A trial judge should therefore deem scien-
tific evidence inadmissible only when the methodology
underlying such evidence is sufficiently invalid to ren-
der the evidence incapable of helping the fact finder
determine a fact in dispute.’’ (Citation omitted; empha-
sis in original; footnote omitted; internal quotation
marks omitted.) State v. Porter, supra, 241 Conn. 88–89.
‘‘Once the validity of a scientific principle has been
satisfactorily established, any remaining questions
regarding the manner in which that technique was
applied in a particular case is generally an issue of fact
that goes to weight, and not admissibility.’’ (Emphasis
in original.) Id., 88 n.31.
Here, the defendant argues, the plaintiff’s ‘‘two
experts agreed [as to] what constituted the standard
methodology for fire investigation ([standard] 921), but
disregarded that methodology and sought instead to
testify as to their ‘general experiences.’ ’’ ‘‘In large part,
the focus of [the defendant’s] objections to [the] plain-
tiff’s experts was that they were tainted by expectation
bias, examining only that evidence that supported their
assertion that the fire was electrical in origin.’’ The
defendant argues: ‘‘[D]espite their acknowledgement
of the authoritative nature of [standard] 921, neither
Scheuritzel nor Mullen testified that he had followed
its protocols. Neither man had even looked at all of the
evidence. Mullen, a latecomer to the investigation, had
not even examined the wire that was said to have been
the source of the electrical fault . . . nor did he look
at the kerosene container and cap collected from the
scene. . . . [The defendant] was especially concerned
with the introduction of expectation bias in the investi-
gations conducted by these two individuals because
their testimony revealed that they both heeded only
that evidence that supported the theory of an electrical
fault, and had not adequately addressed or even consid-
ered other possible causes of the fire. By refusing to
consider evidence which might lead to an alternative
conclusion, neither Scheuritzel nor Mullen conducted a
systematic and scientific investigation of the fire scene.
Their failure to comply with even the most basic tenets
of a scientific methodology (including the performance
of a full and complete investigation) illustrates the con-
cerns [the defendant] had in having their opinions
offered to the jury as expert opinions.’’ The defendant
argues, ‘‘[b]ecause neither of [the] plaintiff’s proposed
witnesses considered all of the evidence or relied on
any recognized or reliable method in determining that
the fire was caused by an electrical fault, their proposed
testimony did not meet the Porter standard.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.)
In other words, the defendant challenges the admissi-
bility of the expert testimony, as it did at trial, on the
ground that the plaintiff’s expert witnesses did not
adhere to the methodology set forth in standard 921,
which both witnesses recognized as authoritative. The
defendant does not attack the scientific basis for the
expert testimony, but, rather, argues that they did not
adhere to that science—that they did not follow the
recognized scientific methods set forth in standard 921.
This is the precise circumstance contemplated by the
Porter court when it instructed that ‘‘questions regard-
ing the manner in which [a scientific] technique was
applied . . . [are] generally an issue of fact that goes
to weight, and not admissibility.’’ (Emphasis omitted.)
State v. Porter, supra, 241 Conn. 88 n.31. The defen-
dant’s assertion that investigations conducted by Scheu-
ritzel and Mullen were not thorough and that they did
not do all that could or should have been done goes
to the weight of their testimony, not its admissibility.6
Because the defendant did not, in fact, attack the scien-
tific reliability of the witnesses’ testimony, the court
did not abuse its discretion in admitting that testimony
into evidence without a Porter hearing.
III
The plaintiff cross appeals from the judgment of the
trial court on the ground that the court improperly
awarded prejudgment interest, on the breach of con-
tract award rendered by the jury, at the rate of 3 percent
instead of 10 percent, which he requested pursuant to
§ 37-3a. We disagree.
On July 2, 2014, the plaintiff filed a motion for prejudg-
ment interest on the $504,360.10 awarded by the jury
on his breach of contract claim. Pursuant to § 37-3a,
the plaintiff sought prejudgment interest at the rate of
10 percent per year beginning on May 26, 2009, the date
that the defendant notified the plaintiff of its denial
of his claim. The defendant objected to the plaintiff’s
motion, arguing, inter alia, that § 37-3a sets the maxi-
mum rate at which prejudgment interest may be allowed
at 10 percent, but that an award for prejudgment inter-
est should be consistent with lower rates that had been
prevalent during the period of time in which the moneys
were allegedly wrongfully withheld from the plaintiff.
On September 26, 2014, the court granted the plain-
tiff’s motion for prejudgment interest, finding that
although ‘‘an award of interest is not a matter of right
. . . [based upon] the evidence presented at trial and
the jury’s verdict, the court believes that it is warranted
in the present case. [The defendant] elected to base its
decision to refuse payment on an in-house investigation
and analysis, rather than an independent and impartial
inquiry. All of the collecting, analyzing, and interpreting
of evidence was performed by [the defendant’s] employ-
ees, arguably skewing the results against the insured,
and in favor of arson. In the end, the analysis hardly
proved to a scientific certainty, much less a preponder-
ance of the evidence, that the fire was intentional, rather
than accidental in origin. Yet, it was the basis for [the
defendant’s] business decision that it was relieved of
its contractual obligation to pay the claim of its insured.
This is not a breach of contract as a result of an honest
mistake or a good faith misunderstanding. It is in the
interests of justice to award interest for the detention
of money under such circumstances.’’
As to the rate of interest awarded, the court
explained: ‘‘[T]he court agrees that an award of interest
at the statutory maximum rate of 10 percent would be
inequitable in the present case. As with all damages,
the award of interest is not intended to punish the
defendant; it is meant to compensate the plaintiff for
the loss of the use of his money. It is commonly recog-
nized that, in the wake of the 2008 financial crisis and
recession, interest rates for borrowing or investing
money were at historic lows for several years. The
[p]laintiff himself is aware of this, as he testified to it
during the trial. The plaintiff’s loss of the use of his
money occurred during this period, and any interest
award must take into account the economic conditions
in effect at that time. . . .
‘‘Considering all of the above, under the particular
facts and circumstances of this case, the court finds
that prejudgment interest at a rate of 3 percent . . .
per annum commencing on May 26, 2009, is appropriate
to compensate the plaintiff for the loss of use of his
money.’’
The plaintiff now challenges the interest rate utilized
by the trial court in awarding him prejudgment interest,
arguing that the court improperly awarded prejudgment
interest at the rate of 3 percent instead of the ‘‘presump-
tive statutory rate’’ of 10 percent. The plaintiff claims
that the court improperly placed the burden on him to
prove his entitlement to the 10 percent interest rate
and that the court ‘‘established an arbitrary range,
unconnected to the facts and circumstances of the case
currently before it, outside of which it would not stray
. . . .’’ We disagree.
Section 37-3a (a) provides in relevant part that ‘‘inter-
est at the rate of ten per cent a year, and no more, may
be recovered and allowed in civil actions . . . as dam-
ages for the detention of money after it becomes
payable.’’
‘‘The decision of whether to grant interest under § 37-
3a is primarily an equitable determination and a matter
lying within the discretion of the trial court. . . . Under
the abuse of discretion standard of review, [w]e will
make every reasonable presumption in favor of uphold-
ing the trial court’s ruling, and only upset it for a mani-
fest abuse of discretion. . . . The purpose of § 37-3a
is to compensate plaintiffs who have been deprived of
the use of money wrongfully withheld by defendants.
. . . Whether interest may be awarded depends on
whether the money involved is payable . . . and
whether the detention of the money is or is not wrongful
under the circumstances.’’ (Citations omitted; internal
quotation marks omitted.) Hartford Steam Boiler
Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos.
Collective, 121 Conn. App. 31, 61, 994 A.2d 262, cert.
denied, 297 Conn. 918, 996 A.2d 277 (2010).
Here, in moving for prejudgment interest pursuant
to § 37-3a, the plaintiff baldly claimed that it was entitled
to interest at the rate of 10 percent per annum. The
plaintiff presented no legal argument or analysis to the
trial court in support of its claim of entitlement to inter-
est at the rate of 10 percent.7 The plaintiff now claims
that he was entitled to interest at the rate of 10 percent
because it is the ‘‘presumptive statutory rate’’ of interest
to which he is entitled under § 37-3a. Our Supreme
Court has explained: ‘‘[Section] 37-3a (a) provides for a
maximum rate of interest of 10 percent, with discretion
afforded to the trial court to order interest at a lesser
rate. . . . [U]nder § 37-3a (a), an interest rate of less
than 10 percent is presumptively valid, and therefore
will be upheld, unless the party challenging the rate set
by the court can demonstrate that it represents an abuse
of discretion.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) Ballou v. Law
Offices Howard Lee Schiff, P.C., 304 Conn. 348, 365,
39 A.3d 1075 (2012).
In granting the award for prejudgment interest, the
court relied heavily on the fact that the interest rates
during the period of time that the funds were wrongfully
detained from the plaintiff were lower than the 10 per-
cent allowed under § 37-3a. The court explained that it
‘‘surveyed representative decisions of Superior Court
[cases] in the first six months of 2014 and found that,
with rare exceptions, most [courts] found that interest
in the range of 3 to 6 percent per annum appropriately
compensates a plaintiff for deprivation of the use of
his or her money.’’ The court clarified: ‘‘Obviously the
appropriate exercise of legal discretion requires that
each case be considered on its own merits. The object
of a survey of other Superior Court decisions is not to
suggest that an appropriate interest rate is the average
of all interest rates employed by other judges. Rather
it helps by giving an approximation of the upper and
lower limits of the range within which—absent extraor-
dinary circumstances—the court should exercise its
discretion.’’ With those other cases in mind, the court
considered the ‘‘particular facts and circumstances of
this case’’ and determined that interest at the rate of 3
percent was appropriate to compensate the plaintiff for
the loss of use of his money. It is clear from the forego-
ing that the trial court carefully considered the facts
and circumstances before it, together with the prevalent
interest rates during the time period within which the
plaintiff was deprived of his funds. We thus conclude
that the court acted well within its discretion in award-
ing prejudgment interest at the rate of 3 percent.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In that letter, the defendant cited to the following provision of the plain-
tiff’s insurance policy:
‘‘SECTION I—EXCLUSIONS
‘‘8. Intentional Loss
‘‘We do not provide coverage for the ‘insured’ who commits or conspires
to commit an act with the intent to cause a loss.’’
2
The letter directed the plaintiff to the ‘‘Special Provisions—Connecticut
Endorsement (HO-300 CT (08-07)):
‘‘8. CONCEALMENT OR FRAUD
‘‘We will not provide coverage for the ‘insured’ who, whether before or
after a loss has intentionally:
‘‘a. Concealed or misrepresented any material fact or circumstance;
‘‘b. Engaged in fraudulent conduct; or
‘‘c. Made material false statements relating to this insurance.’’
3
The trial court comprehensively set forth the basis upon which the jury
could have determined that the defendant’s investigation—the investigation
that led to its conclusion and ensuing allegation that the plaintiff committed
arson—was, at best, incompetent. The defendant has not challenged the
trial court’s factual findings regarding its conduct. In fact, the defendant so
concedes in its reply brief to this court, wherein it stated that it ‘‘has not
appealed on the basis that it did not act tortiously.’’ From Schoener’s rush
to judgment that the plaintiff had started the fire at his home, his removal
of evidence from the plaintiff’s home without providing notice that he was
doing so, to the indifference with which he regarded fundamental principles
of investigations, such as the contamination of evidence and the chain of
custody, the incompetence of the defendant’s investigation cannot reason-
ably be disputed. Upon being assigned the investigation, Schoener enlisted
the assistance of John E. Sleights, another employee of the defendant who
shared his cavalier approach to maintaining the integrity of their investiga-
tion. One of the most egregious examples of deficiency of the defendant’s
investigation was its handling of the kerosene container that had been near
the kerosene heater in the exercise room at the time of the fire—the very
container from which the plaintiff allegedly poured kerosene throughout
the exercise room to start the fire. On February 27, 2009, the day after the
fire, Schoener noticed the container in the bathroom adjacent to the exercise
room, where it had been placed in the bathtub by one of the firefighters.
Rather than take that container into evidence at that time, Schoener, along
with the plaintiff and his public adjuster, placed the container in a wheelbar-
row in the plaintiff’s barn, where it remained, open and uncovered, over
the following weekend. Schoener eventually put the container in the back
of his pickup truck, where he allegedly took samples of the liquid contained
in it on March 3, 2009. (It is noteworthy that the plaintiff testified that he
had, in fact, emptied the kerosene container on February 27, 2009.) The
evidence tag affixed to that container, presumably a key piece of evidence
to the defendant’s steadfast position that the plaintiff had used it to douse
the exercise room with kerosene to start the fire, was completed by Sleights.
The information on that tag, which was filled out by Sleights, is inaccurate.
According to the tag, the container was seized by Sleights on February 27,
2009 from the second floor bathroom. The February 27, 2009 date actually
appears in the field allotted for ‘‘Time.’’ There is no indication as to what
time it was collected. Sleights testified that his first involvement in the case,
consistent with his personal notes, was not until March 3, 2009. In fact,
Sleights conceded at trial that he had never seen the blue kerosene container
outside of the defendant’s laboratory prior to June, 2014. He never saw it
at the plaintiff’s home.
Mullen testified that the proper protocol when an investigator finds a
container that contains a substance that may have caused the fire would
be to take it into custody immediately and properly document it. None of
the defendant’s witnesses ever provided a clear explanation as to why
this simple, yet paramount, protocol was not followed. The incompetence
surrounding the handling of this container is baffling. Compounding the
obvious deficiency with the procedures employed by the defendant through-
out its investigation of the origin and cause of the fire at the plaintiff’s home
is the fact that the testimony of Schoener and Sleights continues to change
each time it is presented.
John Machnicki, the ‘‘vice president in charge of [the defendant’s] forensic
consulting and analytical laboratories,’’ confirmed that he had learned that
Schoener ‘‘had not made proper documentation for what he had done at
the scene of the Riley home . . . .’’ The defendant’s laboratory technician,
Christine Lopol, testified that this was the first investigation in her twenty-
two year career with the defendant in which she did not have complete chain
of custody documentation for samples provided to her in an investigation.
The previously described conduct is but one example of the problematic
nature of the defendant’s investigation. From that investigation, which was
knowingly marred by a lack of integrity, came the defendant’s unwavering
accusation that the plaintiff had intentionally started the fire to his home.
4
In considering the severity of the distress suffered by the plaintiff, the
court referred to the evidence that it considered in denying the defendant’s
motion for remittitur, which will be more specifically set forth herein.
5
‘‘In response to increased judicial demands for a better showing of the
reliability of scientific and technical experts, the National Fire Protection
Association (NFPA) has formulated guidelines for fire scene investigations.
NFPA 921 outlines a thorough basis for conducting a fire investigation.
NFPA [921] has become the de facto national standard for fire scene examina-
tion and analysis.’’ (Footnotes omitted; internal quotation marks omitted.)
P. Giannelli et al., Scientific Evidence (5th Ed. 2012) § 26.03, pp. 1053–55.
6
Although not binding on this court, we note that other jurisdictions have
also held that an expert witness’ alleged failure to strictly adhere to the
guidelines set forth in standard 921 goes to the weight of the testimony of
that expert, not its admissibility. See, e.g., Schlesinger v. United States,
898 F. Supp. 2d 489, 505 (E.D.N.Y. 2012) (‘‘The decision not to follow the
methodology set forth in NFPA 921, as well as other purported flaws in the
. . . methodology—e.g., the failure to rule out other possible causes—goes
to the weight of the evidence, not its admissibility. See Allstate Ins. Co. v.
Gonyo, No. 07-CV-1011, 2009 WL 1212481, *6 [N.D.N.Y. April 30, 2009] [deny-
ing Daubert challenge to an arson expert who [had] not ‘ardently and strictly
followed each step of NFPA’ and holding that ‘[i]f there is any question that
[the arson expert] did not eliminate every cause for the fire, this will not
be determinative as to whether he will testify; all that it suggests is that the
credibility of his decision may be subject to an attack.’]; Pekarek [v. Sunbeam
Products, Inc., 672 F. Supp. 2d 1161, 1175–76 (D. Kan. 2008)] [the mere fact
that the expert did not ‘cite or use NFPA 921 as his guide does not necessarily
mean he failed to use a reliable method’ and although he did not note and
document all items that may have been potential causes of the fire ‘such
deficiencies, while grounds for cross-examination, are not sufficient to pre-
clude a jury from hearing and considering his opinion testimony as to the
point of origin or his opinion ruling out specific items such as the breaker
panel and the candle [although not the attempt to light it] as possible causes
of the fire’]’’).
7
The plaintiff did not argue to the trial court that he was entitled to
interest at the rate of 10 percent on the ground that it was the ‘‘presumptive
statutory rate.’’ Consequently, the trial court was not afforded the opportu-
nity to consider the merits of that argument.