                                    No. 95-4101


Claude Patterson,                          *
                                           *
      Appellant,                           *
                                           * Appeal from the United States
          v.       *                       District Court for the Eastern
                                           * District of Missouri.
State Automobile Mutual                    *
Insurance Company,                         *
                                           *
         Appellee. *




                       Submitted:   November 21, 1996

                           Filed:   February 3, 1997


Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE,1
     District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     A fire destroyed Claude Patterson's house in New Florence, Missouri,
in late 1989.    His insurance company, State Automobile Mutual Insurance,
denied his claim nine months later, contending that Mr. Patterson had
started the fire intentionally and had misrepresented the amount of his
losses.    Mr. Patterson sued.


     After a six-day trial, a jury found for the insurance company.
Mr. Patterson appeals, asserting that the trial court abused its discretion
in striking part of the testimony of one of Mr. Patterson's experts.
Mr. Patterson also argues that the jury




     1
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
instruction on the insurance company’s affirmative defense was flawed in
several significant ways and that the insurance company failed to prove the
materiality of any misrepresentations that Mr. Patterson allegedly made.
We affirm the judgment of the trial court.2


                                       I.
     One of Mr. Patterson's expert witnesses was an arson investigator for
the St. Louis police department.   The expert went to the scene one or two
weeks after the fire and walked around "what was left" of the outside of
the house, looking for any signs of the cause and origin of the fire.    At
that time, he was not able to determine the cause of the fire, and so he
presumed it to be accidental.   It was the expert’s view, in addition, that
if a person used five gallons of accelerant (as posited by at least one
insurance company witness), the resulting explosion would either seriously
injure or kill the person who spread the accelerant.


     On a second trip some time later, the expert examined some of the
metal beams in the debris to see if there had been any melting (because he
had heard that “some people had indicated that there was melting of metal
at the fire scene”; such melting would suggest the high temperatures common
in a fire started by an accelerant).    He cleaned and scraped several metal
beams, removing exterior bubbles, which revealed what he considered to be
a type of rust that characteristically appears when metal is subjected to
continuous burning at more moderate temperatures.    The expert also talked
with the fire chief and two firefighters, all of whom told him that they
had detected no odors of any accelerant in the fire.




     2
      The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.


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     At trial, the expert testified about both of his trips to the site.
The insurance company objected to the admission of the expert’s testimony
about his second trip there, arguing that Mr. Patterson’s failure to advise
the insurance company of that visit unfairly prejudiced its case and
violated Fed. R. Civ. P. 26(e)(1); see also Fed. R. Civ. P. 26(a)(2)(C).
The trial court agreed and instructed the jury to disregard "that portion
of [the expert’s] testimony that related to his second visit to the fire
site ... where he performed the tests on the steel beam relative to melting
and had an opinion on the melting situation.           Also, his discussions with
the firefighters and any opinions based on those from his second visit to
the scene."


     Mr. Patterson contends that the trial court abused its discretion,
see, e.g., Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284
(8th Cir. 1995), cert. denied, 116 S. Ct. 1984 (1995), in striking the
expert’s testimony relative to his second visit to the site.            We see no
abuse of discretion:        the rules explicitly authorize the exclusion of
testimony in the circumstances presented here.              See Fed. R. Civ. P.
37(c)(1);     see   also   Sylla-Sawdon,   47   F.3d   at   283-84,   and   Iowa-Mo
Enterprises, Inc. v. Avren, 639 F.2d 443, 446-47 (8th Cir. 1981).


     The jury was still entitled, moreover, to consider the expert's
testimony that he could not reach a conclusion about the cause or origin
of the fire, and that he therefore characterized it as being accidental in
nature.     The jury was also still entitled to consider the expert’s
testimony about the deadly nature of the explosion that would have resulted
if, as the insurance company suggested, five gallons of an accelerant had
been used in setting the fire.     That testimony alone tended to refute the
insurance company's version of events.          Additional testimony about the
expert's tests on the metal beams and his conversations with several
firefighters would have been more or less cumulative, in




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our view, since the essence of the expert's testimony -- with and without
the included portion -- was that the fire was not deliberately set.          We
therefore hold that even if the trial court's ruling could be considered
error, it was harmless.


                                       II.
        The insurance policy in this case denies “coverage” for any insured
who has "intentionally concealed or misrepresented any material fact or
circumstance" or "made false statements or engaged in fraudulent conduct"
"relating to this insurance."         The trial court instructed the jury,
therefore, that the verdict had to be for the insurance company if the
jurors     believed    that   Mr.   Patterson   “intentionally   concealed   or
misrepresented any material fact or circumstance as to the cause and origin
of the fire; ... the value of the allegedly damaged personal property; ...
the existence of the allegedly damaged personal property; or ... his claim
for additional living expenses."


        Mr. Patterson contends that the instruction incorrectly failed to
include a requirement that the insurance company have relied to its
detriment on (have been prejudiced by) any misrepresentations that he
allegedly made.       He also asserts that the instruction contravenes both
public policy and the language of the specific insurance policy in this
case by allowing total forfeiture of benefits because of a material
misrepresentation with regard to only one of the several types of coverage
provided by the policy.


        With respect to the issue of detrimental reliance, we have found no
cases    from the Missouri state courts dealing with this question in
circumstances involving alleged misrepresentations about the cause or
origin of a fire, in proofs of loss, or as to additional living expenses.
Our court, however, has held at least twice that when an insurance company
challenges a proof of loss as fraudulent, and thus in violation of terms
in the policy




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                                        4
prohibiting intentional misrepresentations and fraudulent conduct, under
Missouri    law   the   insurance   company   does   not   have   to   show   its   own
detrimental reliance on the proof of loss.       See General Casualty Insurance
Companies v. Holst Radiator Co., 88 F.3d 670, 672 (8th Cir. 1996), and
Vitale v. Aetna Casualty and Surety Co., 814 F.2d 1242, 1251 (8th Cir.
1987).     We see no reason why this principle should not apply as well to
circumstances involving alleged misrepresentations about the cause or
origin of a fire and as to additional living expenses, since its basis is
the policy language itself.     See General Casualty Insurance Companies, 88
F.3d at 671-72, and Vitale, 814 F.2d at 1251.         The policy language in this
case says nothing about any requirement for detrimental reliance by the
insurance company.       We therefore reject Mr. Patterson's argument on the
issue of detrimental reliance.


     Mr. Patterson never made his public policy argument or the contract
interpretation argument in the trial court.          He contends nonetheless that
because the instruction allowed forfeiture of all benefits even if the jury
found that Mr. Patterson made a material misrepresentation with regard to
only one type of coverage provided by the policy, the instruction was plain
error.   We disagree.


     For one thing, both federal and state courts applying Missouri law
have specifically stated that Missouri common law permits forfeiture under
circumstances like the ones presented in this case.         See, e.g., Vitale, 814
F.2d at 1247, and Childers v. State Farm Fire and Casualty Co., 799 S.W.2d
138, 141 (Mo. Ct. App. 1990).       In addition, both federal and state courts
have allowed this kind of forfeiture based on the language contained in
particular insurance policies.       See, e.g., Vitale, 814 F.2d at 1247; Farm
Bureau Town and Country Insurance Co. v. Crain, 731 S.W.2d 866, 875 (Mo.
Ct. App. 1987); Arel v. First National Fire Insurance Co., 190 S.W. 78, 80
(Mo. Ct. App. 1916); and Hall v. Western Underwriters' Association, 81 S.W.
227, 227 (Mo. Ct.




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App. 1904).    We therefore reject Mr. Patterson's arguments with respect to
forfeiture.


                                     III.
     Last, Mr. Patterson contends that the insurance company failed to
prove the materiality of any misrepresentations that he allegedly made.
We have read with care the transcript of the
six-day trial.      The evidence was more than sufficient to prove the
materiality of the statements that the insurance company offered as
misrepresentations made by Mr. Patterson.


                                     IV.
     For the reasons stated, we affirm the judgment of the trial court.


     A true copy.


              Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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