The Appellate Division overturned a verdict for the insurer when the actual policy was never introduced at trial. Pennsylvania Lumbermens Mut. Ins. Co. v. B&F Land Dev. Corp., 2019 N.Y. App. Div. LEXIS 264 (N.Y. App. Div. Jan 16, 2018).
The decedent was killed when he fell through a skylight while working on a premises owned by B&F Land Development Corporation. The estate sued B&F for wrongful death.
B&F tendered to its carrier, Pennsylvania Lumbermens Mutual (PLM). PLM issued a reservations of rights. It later denied coverage because the location of the loss was not a location listed on the policy, an exclusion barred coverage for bodily injury arising out of B&F's ongoing operations conducted by it or on its behalf, and the loss was not reported to PLM as soon as practicable.
PLM sued B&F and the estate for a declaratory judgment that it had no duty to defend or indemnify. A default judgment was entered against B&F after it failed to answer. Trial proceeded against the estate
At trial, the only witness PLM called was Francis Santoro, its vice president of claims. The court admitted into evidence a cop of the policy which was proffered by PLM. The copy of the policy was complied by Santoro based upon information contained in the underwriting file, but did not specify a location for which the policy applied. The policy admitted into evidence also had a different description of an endorsement titled "Exclusion-Designated Ongoing Operations" than the copy of the policy that PLM had produced during discovery. When questioned about the discrepancy, Santoro did not know which version of the endorsement applied to the policy issued to B&F. The estate did not call any witnesses. The trial court issued a judgment in favor of PLM.
The appellate court observed that the best evidence rule required the production of an original writing where its contents were in dispute and were sought to be proven in a case. An exception to the rule allowed secondary evidence of the contents of an unproduced original upon threshold factual findings by the trial court that the proponent of the substitute had sufficiently explained the unavailability of the primary evidence and had not procured its loss or destruction in bad faith.
Here, PLM failed to offer any explanation as to the unavailability of the primary evidence, i.e., the original policy. PLM also did not establish that the copy of the policy proffered at trial was a reliable and accurate portrayal of the original. Therefore, the trial court should not have admitted into evidence the copy of the policy proffered by PLM. The matter was remanded for a a new trial.
