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JAMES GIAMBRA AND THERESA GIAMBRA v. AETNA CASUALTY AND SURETY COMPANY AND INSURANCE PLACEMENT FACILITY PENNSYLVANIA (05/13/83)

filed: May 13, 1983.

JAMES GIAMBRA AND THERESA GIAMBRA, HIS WIFE, APPELLANTS,
v.
AETNA CASUALTY AND SURETY COMPANY AND INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA



No. 95 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Luzerne County, Civil Division, at No. 2593-C of 1980

COUNSEL

Joseph A. Lakowski, Pittston, for appellants.

Paul A. Barrett, Scranton, for Aetna, appellee.

Patrick J. O'Connor, Philadelphia, for Insurance, appellee.

Brosky, Wieand and Cirillo, JJ. Wieand, J., concurs in result.

Author: Brosky

[ 315 Pa. Super. Page 232]

This action was commenced by appellants who seek compensation under fire insurance policies issued by appellees for damage to the Giambras' building. It is undisputed that the building, located in Pittston, Pennsylvania, was damaged in the amount of $159,541. At issue before us is appellants' contention that there was insufficient evidence adduced at trial to put before the jury certain defenses raised by appellees. Appellees had raised the defenses that they were not obligated to compensate appellants for their loss on the grounds that the fire which damaged the building was set by appellants, or was procured by them; and/or that they were not liable because appellants had submitted false and fraudulent insurance claims to the companies. We find that the trial court properly denied the motions for new trial and judgment n.o.v. made by appellants and therefore affirm.

[ 315 Pa. Super. Page 233]

We note at the outset that an order either granting or refusing to grant a new trial will not be disturbed absent a manifest abuse of discretion or error of law. Rusidoff v. DeBolt Transfer, Inc., 251 Pa. Super. 208, 380 A.2d 451 (1977). Motions for judgment n.o.v. should be entered only in clear cases, and any doubts should be resolved in favor of the verdict winner, considering the evidence, together with all reasonable inferences therefrom. Steward v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Miller v. Checker Cab Co., 465 Pa. 82, 348 A.2d 128 (1975).

In assessing appellants' claim that there was insufficient evidence to put the aforementioned defenses before the jury, we have been guided by principles enunciated by this court in Ruttenberg v. Fire Insurance Co., 122 Pa. Super. 363, 186 A. 194 (1936). In that case, we explained:

The defense that the fire was caused directly or indirectly by the insured was an affirmative one, and the burden was therefore on the defendants to prove that the fire was set, or was caused to be set, by the insured. It was not necessary that the proof be beyond a reasonable doubt as is necessary when such a charge is made against a defendant in a criminal case. Proof of insured's fraudulent connection with the cause of the fire by a preponderance of the evidence was sufficient . . . . There was no eyewitness in the instant case who saw the insured set fire to his building. The verdict therefore must be supported by circumstances in evidence from which the jury may infer legitimately that the insured burned, or caused to be burned, his store, building and dwelling. Hence the vital question on this appeal is whether the evidence, viewed in a light most favorable to the defendants, is sufficient to sustain the conclusion of the jury that the insured set the fire, or that he caused it to be set. If the evidence fairly and reasonably justifies the verdict, it must be sustained. (Citations omitted.)

Id., 122 Pa. Superior at 365, 186 A. at 195. See also Greenberg v. Aetna Insurance Co., 427 Pa. 494, 235 A.2d 582 (1967), as to the ...


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