17‐100‐cv Pettengill v. Firemanʹs Fund Insurance Company

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of December, two thousand seventeen.

PRESENT: RALPH K. WINTER, DENNY CHIN, Circuit Judges, EDWARD R. KORMAN, District Judge.*

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ANITA PETTENGILL, Plaintiff‐Counter‐Defendant‐ Appellant,

v. 17‐100‐cv

FIREMANʹS FUND INSURANCE COMPANY, Defendant‐Counter‐Claimant‐ Appellee,

* Judge Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. TOG INSURANCE BROKERAGE GROUP, Defendant,

DONATO TELESCO, Counter‐Defendant.

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FOR PLAINTIFF‐COUNTER‐DEFENDANT ‐APPELLANT: Anita Pettengill, pro se, Sandy Hook, Connecticut.

FOR DEFENDANT‐COUNTER‐CLAIMANT ‐APPELLEE: Rhonda J. Tobin, J. Tyler Butts, Robinson & Cole LLP, Hartford, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Eginton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

In this insurance case, following a jury trial, judgment was entered against

plaintiff‐counter‐defendant‐appellant Anita Pettengill, dismissing her claims against

defendant‐counter‐claimant‐appellee Firemanʹs Fund Insurance Company (ʺFiremanʹs

Fundʺ) and awarding the latter damages on its counterclaims. Pettengill moved for

modification of the judgment or for a new trial pursuant to Federal Rule of Civil

2

Procedure 59. By memorandum of decision entered December 9, 2016, the district

court denied the motion. Proceeding pro se, Pettengill appeals.1

In 2011, pursuant to a homeownerʹs insurance policy, Firemanʹs Fund paid

Pettengillʹs claim for water damage to her home, pool house, and television (the ʺWater

Loss Claimʺ). Later that year, Pettengill filed another claim with Firemanʹs Fund for

fire damage (the ʺFire Loss Claimʺ). Firemanʹs Fund discovered discrepancies with

respect to both claims and subsequently refused to pay the full amount of the Fire Loss

Claim. Pettengill sued, asserting breach of her insurance policy.

Defendants removed this action to the district court based on diversity

jurisdiction. Firemanʹs Fund counterclaimed against Pettengill for fraud and breach of

the policyʹs fraud‐or‐concealment provision. The jury found for Firemanʹs Fund on all

counts against Pettengill except a fraud count with respect to the Fire Loss Claim, and

awarded damages in favor of Firemanʹs Fund and against Pettengill in the sum of

$330,277.28. The district court denied Pettengillʹs motion to amend the judgment or for

a new trial under Federal Rule of Civil Procedure 59 on December 9, 2016. This timely

1 Although Pettengill appears in this appeal pro se, she was represented by counsel throughout the litigation in district court.

3 appeal followed. We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

Where, as here, a Rule 59(e) motion essentially seeks judgment as a matter

of law, we review the district courtʹs decision de novo. ING Global v. United Parcel Serv.

Oasis Supply Corp.,

(2d Cir. 2014). Such a motion may be granted only to

ʺprevent manifest injustice,ʺ which ʺexists where a juryʹs verdict is wholly without legal

support.ʺ

Courts ʺʹmust disregard all evidence favorable to the moving party that

the jury is not required to believe.ʹʺ

(quoting Tolbert v. Queens Coll.,

, 70

(2d Cir. 2001)).

To the extent a Rule 59 motion seeks a new trial, our review is for abuse of

discretion. Id. A new trial under Rule 59(a) is warranted ʺʹonly if the verdict is

(1) seriously erroneous or (2) a miscarriage of justice.ʹʺ Id. at 99 (quoting Raedle v. Credit

Agricole Indosuez,

, 417‐18 (2d Cir. 2012)). When considering a Rule 59(a)

motion based on the sufficiency of the evidence, ʺour cases ʹteach that a high degree of

deference is accorded to the juryʹs evaluation of witness credibility, and that jury

verdicts should be disturbed with great infrequency.ʹʺ

at 97‐98 (quoting Raedle,

(alterations omitted)).

4 Pettengill contends that the judgment should have been modified or a

new trial granted because the juryʹs verdict as to the Water Loss Claim was not

supported by the evidence and the jury rendered inconsistent verdicts with respect to

the Fire Loss Claim.

As to the Water Loss Claim, we conclude that there was ample evidence at

trial for a reasonable jury to find fraud and breach by Pettengill: a witness testified that

the television was broken before the water damage; Pettengill told Firemanʹs Fund that

the television was water‐damaged; Pettengill submitted an invoice for that damage; and

Firemanʹs Fund paid her. Pettengill has not demonstrated manifest injustice, nor has

the juryʹs verdict resulted in a miscarriage of justice.

As to the Fire Loss Claim, Pettengill challenges the juryʹs finding of breach

as inconsistent with its finding that she did not commit fraud. She interprets that

verdict as finding that she breached the policyʹs cooperation requirement. But the jury

was instructed on the breach claim based only on the policyʹs fraud‐or‐concealment

provision. Additionally, these two issues have different standards of proof. Unlike

breach, which only requires proof by a preponderance of the evidence, fraud requires

clear and convincing proof and evidence. See Master‐Halco, Inc. v. Scillia Dowling &

Natarelli, LLC,

(D. Conn. 2010). Accordingly, the verdict was

5 not inconsistent and Pettengill cannot demonstrate manifest injustice or a miscarriage of

justice here either.

We have considered Pettengillʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the district courtʹs judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

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