Opinion
No. FST CV 07 5004458 S
March 2, 2011
MEMORANDUM OF DECISION RE MOTION IN LIMINE #158
I FACTS
In this action, the plaintiffs are suing the defendant, Interstate Fire Safety Equipment Co., for damages arising out of a fire at the plaintiffs' property in October 2006. On February 1, 2011, the defendant filed a motion in limine to "preclude the plaintiffs from eliciting any information or testimony or introducing any evidence concerning the plaintiffs' personal property claims." The defendant claims that in order to obtain the value of their damages, the plaintiffs "utilized the actual purchase price for the item or researched same on the Internet and obtained what the cost of the item was based on 2006/2007 values." The defendant argues that such testimony is inadmissible under Connecticut law. In their February 14, 2011 objection to the motion in limine, the plaintiffs claim instead that the individual parties "will testify as to the value of their personal property at the time of the fire in 2006, not the present cost to replace such property" and that "[t]his testimony will likely be based on the replacement cost of the personal property adjusted for depreciation."
There are six plaintiffs in this action. They are JC Corp., Teahouse on the Riverside, Inc., Julie Chen, Warren Hutchison, S.L. Chen and Hsiao-Wen Chen.
The objection to the motion in limine is brought on behalf of all six plaintiffs and indicates that the four individual non-corporate plaintiffs (Julie Chen, Warren Hutchison, S.L. Chen and Hsiao-Wen Chen) will testify as to the value of the personal property.
II DISCUSSION
"Our cases have ruled that the competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question . . . The rule establishing an owner's competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered . . . and the common experience that an owner is familiar with her property and knows what it is worth . . . This rule is applicable in criminal as well as civil cases." (Citations omitted.) State v. Baker, 182 Conn. 52, 60-61, 437 A.2d 843 (1980). See also Code of Evidence, § 7-1 comment ("Some of the matters upon which nonexpert opinion testimony has been held admissible include: the market value of property where the witness is the owner of the property . . .").
This has been the established rule in Connecticut for more than sixty years. Lovejoy v. Darien, 131 Conn. 533, 536, 41 A.2d 98 (1945). In Lovejoy, one of the first applications of this rule, the plaintiff sued the defendant after the defendant ran a sewer pipe through the plaintiff's oyster bed, destroying the bed and the oysters. Id., 534. In discussing the admissibility of the plaintiff's testimony, Justice Jennings opined as follows: "The plaintiff, as owner, testified to the value of his franchise based upon prices paid by him for other oyster grounds in the vicinity. Even without his long experience as an oyster grower, such evidence by an owner would be admissible." Id., 536.
Three years later, the Court relied on Lovejoy, among other decisions, in holding that the owners of household furniture lost in a fire may testify as to the furniture's value. Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 479-80, 58 A.2d 387 (1948). The court ruled as follows: "The furniture was not available, and indirect evidence of value was all that could be offered. In determining that value, the original cost of the furniture, the way in which its use had affected it, and the increased cost of buying new furniture were all elements which might properly be considered . . . and, as indicative of the way the plaintiff and his wife had kept it, the testimony as to its condition was not so remote that the trial court could not in its discretion admit the evidence . . . Testimony of the plaintiff as to the value of the furniture was proper, although no qualification other than his ownership of it was shown." (Citations omitted.) Id.
In addition to Lovejoy, the Saporiti decision cited Professor Wigmore. Id., 480. In the cited section of his treatise, Wigmore writes: "The owner of an article, whether he is generally familiar with such values or not ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and Courts have usually made no objections to this policy." 3 J. Wigmore, Evidence (3d Ed. 1940) § 716. Wigmore's observation has been applied in more recent Connecticut appellate cases. See, e.g., Hunting v. Chambers, 99 Conn.App. 664, 671-72, 916 A.2d 56, cert. denied, 283 Conn. 901, 926 A.2d 669 (2007) (plaintiff allowed to testify as to his opinion of the value of a grandfather clock that was converted by the defendant). In Hunting v. Chambers, the Appellate Court explained the indispensable need for owners' testimony: "[D]ue to the defendant's disposing of the clock, it was no longer available for inspection or appraisal at the time of the trial. The court therefore had no other source from which to ascertain its value other than the plaintiff's opinion testimony." Id., 671.
"The primary reason for admitting such an estimate of value is that of necessity, the owner necessarily knowing something about the quality, cost, and condition of the article, and it often being impossible to produce other witnesses having the requisite knowledge upon which to base an opinion. But the rule of admissibility is more frequently predicated on the presumption that the owner, being familiar with his property, knows what it is worth." Annot., 37 A.L.R.2d 973 (1954).
Furthermore, "[a]n owner's opinion as to the value of his property goes to the weight of the testimony and not to its admissibility." Moore v. Sergi, 38 Conn.App. 829, 840, 664 A.2d 795 (1995); see also Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 35, 664 A.2d 719 (1995). For instance, in Shane v. Tabor, 5 Conn.App. 363, 364-65, 497 A.2d 1047 (1985) (per curiam), where the plaintiff sought to recover damages for her mink coat which she alleged was stolen from the defendant's restaurant, the plaintiff testified that she bought the coat for about $5,000 three or four years prior to the theft, that she insured the coat for $5,000, that she wore the coat about one hundred times and that she believed the coat was worth $5,000 when it was stolen. The basis for her opinion as to the coat's value at the time of loss was the amount that the coat was insured for. Id., 365. Even in the face of such potentially problematic evidence, the Appellate Court ruled that "[t]his basis for her opinion does not render it incompetent but rather goes to the weight of her testimony, which is a question for the trier of fact . . ." Id.
The decisions cited by the defendant in support of its motion in limine are inapposite. In Wasko v. Manella, 87 Conn.App. 390, 398-400, 865 A.2d 1223 (2005), the Appellate Court ruled that it was wrong for the trial court to rely on the owner's testimony as to the retail price of the destroyed property when the measure of damages was the value of the property at the time it was destroyed. In the present case, the plaintiffs intend to testify as to the depreciated value of their destroyed personal property. Furthermore, New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 236-37, 348 A.2d 641 (1974), another decision cited by the defendants, does not address the testimony of property owners but rather discusses the valuation methods that can be used by a tax assessor. The defendant has offered no law to support its claim that only an expert may provide evidence as to depreciation. The decision cited in favor of this contention, Funding Consultants, Inc. v. Aetna Casualty Surely Co., 187 Conn. 637, 645-46, 447 A.2d 1163 (1982), reflects the Supreme Court's opinion that "[i]t is not unreasonable to offer a lay jury expert assistance in the proper calculation of values that are not obvious on the face of the instruments to be compared." This decision, which addressed expert valuation of promissory notes, does not foreclose property owners' opinion testimony as to the value of destroyed property.
Therefore, the plaintiffs in this case will be allowed to testify as to the value of their property at the time of the fire, but they shall not on direct examination mention the present replacement value of the property. The defendant will have "the opportunity of testing the plaintiff[s'] knowledge of the value on cross-examination." Misisco v. La Maita, 150 Conn. 680, 685, 192 A.2d 891 (1963). The jury will determine the weight to be given to the plaintiffs' testimony.
III CONCLUSION
Based on the foregoing, the court denies the defendant's motion in limine to preclude the plaintiffs from testifying or introducing evidence as to the value of destroyed personal property.