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Olesak v. Central Mutual Insurance Co.

Decided: February 3, 1987.

MICHAEL E. OLESAK, PLAINTIFF-APPELLANT,
v.
CENTRAL MUTUAL INSURANCE COMPANY AND ROYAL GLOBE INSURANCE COMPANY, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Middlesex County.

J. H. Coleman and R. S. Cohen. The opinion of the court was delivered by R. S. Cohen, J.A.D.

Cohen

[215 NJSuper Page 156] This is a claim for fire insurance proceeds. Plaintiff Michael E. Olesak owned a home which was insured against fire loss by defendant insurers. It was damaged in a fire on August 9, 1982, and this suit was ultimately brought for recovery on the policies. It was tried to a jury which found, in answer to an interrogatory, that plaintiff "deliberately and intentionally caused a fire at his dwelling for the purpose of making a claim for the damages. . . ." From the judgment entered on the jury verdict, plaintiff appealed to this court. We affirm.

Plaintiff was an experienced fire claims adjuster who had lost his job with an insurance company some seven months before the fire. He and independent witnesses agreed that he had been drinking heavily on the night of the fire. Counsel's opening asserted that he had become an alcoholic and did not recall the events. On the witness stand, plaintiff denied setting the fire.

In his testimony on damages, plaintiff described his $64,975 proof of loss of house contents, which included 70 dress shirts worth $35 each, 16 suits worth $300 each, a $7,500 oriental rug, a $6,400 bedroom set, three pairs of ski boots each worth $300, and 1,000 tennis balls. He had no documentary evidence of purchase or of price, and offered no explanation how he accumulated all of these goods on his $26,000 salary. Although this testimony did not bear directly on the issue of arson, it may well have damaged plaintiff's credibility and convinced the jury that plaintiff's account of the fire was about as dependable as his account of his losses.

Plaintiff's denial that he had set the fire was contradicted by other evidence. An emergency room nurse smelled gasoline on his clothing. Investigators smelled gasoline in the basement where the fire started. A laboratory found traces of gasoline in samples of material from the basement. There were three separate points of fire origin found. Finally, there was plaintiff's statement after the fire that, when it explosively started, he was on the front lawn and was blown 150 feet through the air. In the absence of substantial explosion damage to the house, the defense fire expert said, such a thing was impossible.

Before this court, plaintiff makes three arguments. They are:

POINT I: PLAINTIFF WAS ENTITLED TO AN ADVERSE INFER-

ENCE CHARGE DUE TO THE DEFENDANT'S FAILURE

TO CALL AS AN EXPERT WITNESS, RICHARD O'NEILL,

AND AS FACT WITNESSES, RAYMOND VLIET AND

LEONARD BILEKIN.

POINT II: THE DEFENSE OF ARSON (INSURANCE ...


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