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Queen City Farms Inc. v. Aetna Casualty & Surety Co.9/9/1994
in the Clerk's Papers. The verbatim transcript indicates that part of the testimony was read to the jury. Verbatim Report of Proceedings (May 25, 1988), at 9-10. However, that testimony was not transcribed, and it is not possible to determine which part of the deposition the jury heard. Thus, it is not possible to determine whether Beard's deposition testimony which the jury heard supports a determination of materiality. For this reason, we do not consider the Beard deposition.
In light of our conclusion that Lloyd's expert witness's testimony should have been excluded, and our conclusion that there remains no proof on this record of materiality of any misrepresentations by QCF, Lloyd's materiality defense must be rejected.
Conclusion
We affirm the Court of Appeals' holding that Lloyd's is liable under its excess policies for damage resulting from escape of toxic materials from the waste pits. The jury has determined that QCF expected or intended that material from the waste ponds would leak into the groundwater under either an objective or subjective standard as of December 31, 1968, and the Lloyd's policy does not contain any pollution exclusion which must be considered. Also, Lloyd's misrepresentation defense fails.
There remain factual questions insofar as the expectation and intention of Maryland Casualty and Central National's policies are concerned, which must be resolved under a subjective standard. This case is therefore remanded for resolution of the remaining factual questions involving the insurance issues in accord with our analysis herein. Central National failed to prove its misrepresentation defense, and is foreclosed from reasserting it on remand.
Brachtenbach, J.
WE CONCUR:
Smith, J.
Dolliver, J.
Johnson, J.
Disposition
Holding that coverage is provided under one of the insurer's policies, that factual questions remain as to coverage under the other insurers' policies, and that the misrepresentation defense of defendant Central National failed, the court affirms the decision of the Court of Appeals. A majority of the court also affirms the jury's finding that the plaintiff made material misrepresentations in obtaining insurance from defendant Lloyd's of London.
ANDERSEN, C.J. (concurring and dissenting) -- I concur with the result and the reasoning of all of the issues in Justice Brachtenbach's majority opinion with the exception of the material misrepresentation issue. With respect to that issue, I agree with Justice Utter's dissenting opinion that evidence was presented from which the jury reasonably could have found a material misrepresentation and that we should respect the jury's finding of fact on that issue.
ANDERSEN, C. J.
UTTER, J. (dissenting) -- I disagree with the majority's conclusion the trial court improperly denied a motion for a judgment n.o.v. with respect to the Lloyd's of London policy. Because evidence was presented from which the jury reasonably could have inferred a material misrepresentation was made, we should respect the jury's finding of fact on this issue.
The jury was instructed the insurers bore the burden of proving by clear, cogent, and convincing evidence that a material misrepresentation had been made by the insured with the intent to deceive the insurers. Instructions 7 and 8. Clerk's Papers of Appellant, Vol. 1 at 1119-20. The jury returned a verdict in favor of Lloyd's and Central National.
A judgment n.o.v. may only be granted when, viewing the evidence and reasonable inferences which can be drawn from it most favorably to the nonmoving pa
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