Free Proposed Jury Instructions/Request to Charge - District Court of Connecticut - Connecticut

Case 3:03-cv-01009-SRU

Document 131

Filed 04/17/2006

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JOSEPH ATTIAS & HAIM ATTIAS VS. PATRONS MUTUAL INSURANCE COMPANY OF CONNECTICUT : : : : : : CIVIL ACTION NO. 3:03 CV 01009 (SRU) APRIL 13, 2006

DEFENDANT'S AMENDED REQUEST TO CHARGE The defendant, Patrons Mutual Insurance Company, hereby amends its Request to Charge VII. "DAMAGES ­ FAIR RENTAL VALUE" by the addition of case law in support of said request. VII. DAMAGES ­ FAIR RENTAL VALUE 1. The plaintiffs have claimed as part of their damages the income they would have

received as the fair rental value of the insured premises but for the fire. In this regard, the policy of insurance provides as follows: Coverage D ­ Additional Living Expenses and Fair Rental Value We pay for the fair rental value if the part of the insured premises rented or held for rental to others is made unfit for use by an insured loss.

SR/240881/jjr

Case 3:03-cv-01009-SRU

Document 131

Filed 04/17/2006

Page 2 of 3

In order for the plaintiffs to recover pursuant to this portion of the policy of insurance, you must find that a portion of the plaintiffs' premises were either being rented or held for rental at the time of the fire, in which case you may award the fair rental value for that portion of the premises. You will recall the testimony that the property was unoccupied at the time the fire occurred and that the plaintiffs had a meeting with John Oliveri, a realtor, to discuss listing the property for sale on the day the fire occurred. If you find that the premises were neither rented nor being held for rental, then you cannot award fair rental value. DeCrescenzo v. Capital Mutual Insurance Co., 187 A.2d 793, 589 NYS2d 669 (3d Dept. 1992), wherein the New York Appellate Court held that lost rental income only applied when the rental dwelling had tenants and did not apply when it was vacant and unoccupied; see also Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415 (1997), which stands for the proposition that insurance is a contract of indemnity and the insured cannot profit from a loss.

-2-

Case 3:03-cv-01009-SRU

Document 131

Filed 04/17/2006

Page 3 of 3

DEFENDANT, PATRONS MUTUAL INSURANCE COMPANY

By

/s/ Joel J. Rottner Skelley Rottner P.C. 433 South Main Street, Suite 305 West Hartford, CT 06110 Tel. (860) 561-7077 Fax (860) 561-7088 Federal Bar No. ct05612

CERTIFICATION I hereby certify that a copy of the above was mailed via U.S. Mail, postage prepaid, on April 13, 2006, to the following counsel of record: Attorney Cheryl E. Heffernan Farver & Heffernan 2858 Old Dixwell Avenue Hamden, CT 06518 Tel. (203) 288-8266

/s/ Joel J. Rottner

-3-