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LA CANIN v. AUTOMOBILE INS. CO.

December 18, 1941

LA CANIN
v.
AUTOMOBILE INS. CO. OF HARTFORD et al.



The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is a motion requiring the defendant, The Automobile Insurance Company of Hartford, to furnish the plaintiff with a bill of particulars of its defense setting forth the following items:

"1. State whether or not defendant will claim upon the trial of this action that the policy sued upon is void because of fraud or misrepresentation by the insured, as set forth in lines '1' to '6' of said policy, and if so, specify the particular provision or provisions of said policy upon which defendant will rely.

 "2. State whether or not defendant will claim upon the trial of this action that the loss was caused by a hazard or hazards not covered by the policy sued on, as provided in lines '12' to '19' thereof, and if so, state the particular hazard or hazards by which it will be claimed the fire was caused.

 "3. State whether or not the defendant will claim upon the trial of this action that the policy sued on is void because of change of ownership, as provided in lines '20' to '31' thereof, and if so, state the particular change or changes in ownership upon which the defendant will rely.

 "4. State whether or not defendant will claim upon the trial of this action, that the defendant is not liable for the loss because of the existence of any of the conditions set forth in lines '32' to '61' of the policy sued on, and if so, state the particular condition or conditions upon which defendant will rely.

 "5. State whether or not the defendant will claim upon the trial of this action that it is not liable because of the existence of a chattel mortgage upon the property insured, as provided in lines '62' to '67' of the policy sued on, and if so, specify the property which, it will be claimed, was incumbered with a chattel mortgage.

 "6. State whether or not the defendant will claim upon the trial of this action, that the plaintiff has rendered void or forfeited her rights under the policy sued on, or has failed to perform any conditions precedent, required to be performed by her, other than as set forth under the foregoing items and the first and second affirmative defenses, and if so, state the particular provisions of the policy under which it is claimed that such avoidance or forfeiture occurred, or the particular conditions precedent which, it is claimed, were not performed."

 "Or, in the alternative, directing the attorneys for the respective parties to appear before the Court for a further pre-trial conference."

 The motion for the bill of particulars is denied as issue has been joined. See Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

 There has been one pre-trial conference in this case which was concluded. That fact does not prevent another pre-trial conference. Motion for a further pre-trial conference is granted.

 This is an action to recover upon a policy of fire insurance. Two questions are now presented to the Court on this pre-trial hearing, the first involving a determination of whether the defendant insurance company should be compelled to disclose what, if any, conditions of the policy it will claim were breached, and the second raising the issue of date of issuance of the policy.

 Plaintiff's complaint alleges due performance of all conditions and that the fire did not occur from any of the excepted causes. These allegations the defendant has denied. On this pre-trial hearing, plaintiff desires defendant to disclose what conditions it will claim were breached, upon what excepted causes it intends to rely, etc. In short, plaintiff asks to have determined the real issues of the case. Defendant on the other hand urges that to grant plaintiff's request would involve, in effect, the shifting of plaintiff's burden of proof.

 An examination of the New York Standard Fire Insurance Policy discloses that it is replete with numerous conditions, the burden of proof as to which it may be admitted rests upon the plaintiff. To meet this burden, plaintiff will of course have to produce some evidence. What she desires to know at this time, however, is how much evidence. If defendant intends to make no claim that certain conditions were breached or that certain excepted causes of fire had applicability, then it is a waste of plaintiff's time and expense to compel her to ...


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