
USCA1 Opinion

	




          July 8, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  92-1326                                     ANTHONY PISA                                Plaintiff, Appellant,                                           v.                            UNDERWRITER AT LLOYDS, LONDON                                 Defendant, Appellee.                              __________________________                                     ERRATA SHEET               Please make the following corrections on opinion issued July          2, 1992:               Cover sheet:  delete the number 1 from bottom front page.               On page 3, Line 13 add "d" to "produce";               On Page 3, Line 21 "was" instead of "were;               On page 5, Line 20 "was" instead of "were;               On page 5, Line 22 strike "ing" on "identifying."                    July 2, 1992                                [NOT FOR PUBLICATION]                                 ___________________          No. 92-1326                                                ANTHONY PISA,                                Plaintiff, Appellant,                                          v.                           UNDERWRITERS AT LLOYDS, LONDON,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Selya, Chief Judge,                                        ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               Anthony Pisa on brief for appellant.               ____________               Lawrence  A. Dugan, and Morrison, Mahoney & Miller on Motion               __________________      __________________________          to  Dismiss  or in  the  Alternative for  Summary  Affirmance and          Memorandum in Support for appellee.                                  __________________                                 __________________                       Per Curiam.     Plaintiff  sought recovery under  a                      __________            fire insurance  policy.  The district  court granted  summary            judgment for  defendant insurer on the  ground that plaintiff            had failed to comply  with the policy's statutory cooperation            clause1.                      Plaintiff has several arguments which we address in            turn.                       First,  plaintiff claims  that the  district court            improperly  resolved   factual  issues  by   concluding  that            plaintiff's  inability to  remember  financial  details  when            deposed by the  insurer was evasive conduct violative  of the            policy's  cooperation  clause.    Plaintiff  argues  that  he            answered to the best  of his ability and that  it is  a  jury            question whether his  answers were evasive, on  the one hand,                                            ____________________            1.    By statute,  the  policy required  in material  part as            follows:                            The  insured, as  often  as  may  be                      reasonably required,  shall . .  . submit                      to  examinations under  oath  .  . .  and                      subscribe the same; and, as often as  may                      be  reasonably  required,  shall  .  .  .                      produce  for  examination  all  books  of                      account,   bills,   invoices  and   other                      vouchers, or certified copies  thereof if                      originals  are  lost, at  such reasonable                      time and  place as  may be  designated by                      [the insurer].                             No suit or action on this policy for                      the  recovery  on   any  claim  shall  be                      sustainable in any court of law or equity                      unless  all  the  requirements   of  this                      policy have been complied with.            R.I. Gen. L.   27-5-3.                                         -2-            or a sincere inability to remember past matter, on the other.                      The court did not resolve disputed factual  issues.            To  be sure,  the  court did  state  that at  the  deposition            plaintiff  had "managed  to  avoid giving  [the insurer]  any            information  that could  help  them understand  [plaintiff's]            finances  at  the   time  of  the   fire."  But,  the   court            subsequently  specifically  noted that  it could  not resolve            credibility matters  and pointed  out that plaintiff  had not            produced any  requested document or  authorization to  obtain            records.    Viewed  in  context,  the  court's  reference  to            plaintiff's  deposition  testimony   was  not  a  credibility            determination  that plaintiff  had not  testified truthfully,            but rather background underscoring the insurer's need for the            checkbook and authorizations given that plaintiff's testimony            had produce little  or no information  concerning his or  the            restaurant's finances.                       Second, plaintiff contends that plaintiff's failure            to produce the checkbook and authorization for release of tax            information   and   financial   records   was    not   wilful            noncooperation  but rather  the product  of misunderstanding.            He claims he  never refused  to produce either.   Rather,  he            maintains that  neither was clearly requested.   Moreover, he            asserts, without  any record support, that  he did eventually            produce the  checkbook.      As for  a release  for financial                                         -3-            records  or  tax  returns,  plaintiff contends  that  he  was            willing to  cooperate, but, being pro se, did not know how to            draft an authorization or go about getting bank records, felt            any expense  in document  gathering  should be  borne by  the            insurer,  and  was waiting  for  the  insurer to  forward  an            authorization  for plaintiff  to  sign.   At the  very least,            plaintiff  argues, a  jury should  be permitted  to determine            whether plaintiff willfully  refused to  cooperate or  rather            stood ready  to cooperate and  to sign any  authorization the            insurer  might  prepare, but  failed  to  meet the  insurer's            expectation through misunderstanding and inadvertence.                      We conclude both that the record belies plaintiff's            present assertions  of no  clear demand  and misunderstanding            and that  plaintiff failed  timely to  raise these  claims in            opposition to defendant's motion for summary judgment.                        Plaintiff was directed to  bring to his December 6,            1990 deposition his and his business's tax returns as well as            enumerated business  records.  He  did not do  so, explaining            that  all but the checkbook had been  destroyed by fire.  The            December  6,   1990  deposition   (at  which   plaintiff  was            represented  by an  attorney)  concluded  with the  insurer's            lawyer stating his  understanding that  plaintiff would  look            for  the checkbook, give it  to his lawyer,  and discuss with            his lawyer whether to provide an authorization to  obtain tax            returns.   Plaintiff did not controvert that understanding at                                         -4-            that  time.  The insurer  clearly stated his  position at the            deposition that  the policy required plaintiff  to provide an            authorization  for  release  of  tax returns.    The  insurer            reiterated this  position in a letter several  weeks later to            plaintiff's attorney and once again demanded the checkbook as            well  as an "authorization to obtain  copies of all financial            records which  [plaintiff] alleges  are not  presently within            his  possession  as  well  as Federal  and  State  Income Tax            returns  . . .  [for] 1986,  1987, 1988,  1989."   Ten months            later  (October  8, 1991),  the  insurer's  lawyer stated  by            affidavit that  plaintiff had not produced  the checkbook and            had not  provided any  authorization for defendant  to obtain            financial  records  or tax  returns.   So  far as  the record            reveals, plaintiff  made no timely cooperative  response.  He            did not controvert the insurer's affidavit that the checkbook            had  not  been  turned over,  he  did  not  offer to  produce            anything,  and  he  did  not  claim  financial  inability  or            confusion due to his pro se  status.  On December 12, 1991, a            hearing on the motions for summary judgment was scheduled for            January 16, 1992.   Still, plaintiff made no  overture toward            cooperation.   Plaintiff's present  claim of  confusion comes            too  late.   Plaintiff  was clearly  on  notice that  he  was            required to  produce relevant records.   The insurer's demand            for the checkbook and authorizations was reasonable under the            circumstances as a matter of law.  Plaintiff's failure either                                         -5-            to  comply  or  to  identify his  reservations  violated  the            cooperation clause.                      Third, plaintiff argues he should have been given a            further  chance  to cooperate.    An hour  after  the summary            judgment hearing  concluded,  plaintiff filed  a  handwritten            paper  authorizing  defendant   "to  retrieve  any  financial            document or  any other pertinent information"  and requesting            defendant to  send any authorization to  plaintiff's home for            plaintiff to sign.  The district court ruled that plaintiff's            offer came too late.                      Plaintiff  relies on  New York  cases, particularly            Pogo  Holding Corp.  v. New  York Property  Ins. Underwriting            __________________      _____________________________________            Assoc., 73 A.D.2d 605, 422 N.Y.S.2d 123 (1979), for his claim            _____            that he  should be given another  chance.   There,  after the            insured's treasurer had been examined under oath, the insurer            requested the  insured's  president similarly  to  submit  to            examination  and  to produce  certain  documents.   When  the            president refused, the insurer sought summary judgment.  Even            though plaintiff did not  satisfactorily explain its  failure            of cooperation,  the court,  "reluctant to exact  the extreme            penalty of  dismissal,"   gave plaintiff  one last  chance to            comply.     Plaintiff argues the  district court  should have            done  the  same  here  particularly  as,   plaintiff  claims,            defendant has not been prejudiced by the delay.                                         -6-                      It  is  true  that   under  Rhode  Island  law  "an            insurance  company  must show  that  it  has been  prejudiced            before  an insured's  failure to  comply with  the procedural            requirement in  a policy will bar recovery."   Pickwick Park,                                                           ______________            Ltd. v. Terra  Nova Ins. Co., 602  A.2d 515, 518  (R.I 1992);            ___     ___________________            Corrente v. Fitchburg Mut.  Fire Ins. Co., 557 A.2d  859, 863            ________    ____________________________            (R.I. 1989).   In  the present  case, however, prejudice  was            manifest as a matter of law on the record as it existed up to            the time of the  hearing on the motion for  summary judgment.            Defendant   insurer  had  received  no  documents  concerning                                                __            plaintiff's  or the restaurant's financial condition and very            little oral information concerning finances given plaintiff's            purported memory  lapse.  Plaintiff's position  now, however,            is that in view of his post-hearing offer of cooperation, the            insurer  will be  able  to obtain  tax returns  and financial            documents and hence will not ultimately be prejudiced.                      We  agree with  the  district court's  response  to            plaintiff's late offer:                      A Rule 56 motion puts an end to pre-trial                      maneuvering and compels the  litigants to                      show  the court  what they  can prove  at                      trial.   The rule gives  the plaintiff  a                      deadline to come forth with his case, and                      it   provides   the  strict   penalty  of                      dismissal  for those  who cannot  prove a                      case.   Delaying  the performance  of his                      contractual  obligations in  the apparent                      hope that  he would not have  to disclose                      damaging  information,   [plaintiff]  has                      missed his chance.                                         -7-                      Pogo Holding has  not been  invariably followed  by                      ____________            New  York courts.  When  an insured's lack  of cooperation is            egregious,  unconditional summary  judgment has  been granted            for the insurer.  See, e.g., Evans v. International Ins. Co.,                              ___  ____  _____    _____________________            168  A.D.2d  374,  562  N.Y.S.2d 692  (1990);  Pizzirusso  v.                                                           __________            Allstate Ins. Co,   143 A.D.2d 340, 532 N.Y.S.2d  309 (1988);            ________________            Rosenthal v. Prudential Property & Casualty Co, 928 F.2d 493,            _________    _________________________________            495  (2d  Cir.  1991)  (noting  that  New  York  courts  have            retreated from  affording an insured  a last chance  when the            insured's failure to  cooperate is  wilful).   In any  event,            regardless  whether a New  York court would  afford a further            chance to plaintiff, who  filed no timely satisfactory reply,                                               ______            offer to cooperate, or excuse for non compliance in  response            to defendant's affidavits and motion for summary judgment, it            is  Rhode Island law which controls this case.  Plaintiff has            pointed  to no  Rhode Island  case law  which  would tolerate            plaintiff's  foot  dragging.    In  these  circumstances,  we            summarily  affirm the  judgment below.2   First  Circuit Rule            27.1.                      Affirmed.                      ________                                            ____________________            2.  As  we summarily affirm the judgment on the merits, we do            not  pass on  defendant's  claim that  the  appeal should  be            dismissed  because  plaintiff's  brief  and  appendix do  not            comply  with  rules  of  appellate  procedure.    Defendant's            request for  costs and  attorney's fees pursuant  to Fed.  R.            App. P. 38 is denied.                                         -8-
