Fifth Amendment Doesn't Apply to a Plaintiff's Suit: Fear of Arson Arrest Not Basis for Refusing to Testify.

• Author: Zalma, Barry

When a person obtains insurance under false pretenses and then, as soon as the policy goes into effect, causes it to be set afire to defraud the insurer, he cannot then refuse to testify in a suit he filed pursuant to the Fifth Amendment of the U. S. Constitution.

In Corey Brown v. Certain Underwriters at Lloyd's, London; Underwriters at Lloyds, No. 18-2977, United States Court of Appeals for the Third Circuit (September 17, 2019) was called upon to deal with a summary judgment entered in favor of the insurer that Corey Brown appealed from the disposition in favor of Certain Underwriters at Lloyds, London, ("Lloyds").

BACKGROUND

Brown obtained a fire insurance policy from Lloyds, an underwriter based in London, for a house he owned in Philadelphia. That policy contained a clause stating that the house must be occupied as a condition of coverage. To demonstrate compliance with that condition, Brown provided Lloyd's with a copy of a residential lease for the house that listed Judy Cooks as a near-future tenant.

Less than three weeks later, on the day that Cooks was supposedly scheduled to move in, fires began in multiple locations in the house. The record shows the fires were spread by accelerants. An arson.

Brown submitted a claim for the full policy limits of the insurance, but Lloyd's began an investigation of the fires and determined that the claim should be held pending completion of the investigation into the potential arson-for-profit.

One year later, Brown sued in Pennsylvania state court, seeking to compel Lloyd's to pay the full policy limits as well as lost rental income. Lloyd's removed the case to the District Court and asserted counterclaims alleging, among other things, that Brown had violated the Pennsylvania Insurance Fraud Statute.

During discovery, Lloyd's deposed Brown. At the deposition, Brown invoked his Fifth Amendment right against self-incrimination and, on the advice of counsel, refused to answer questions related to the insurance policy, the house, or the fires.

Lloyd's subsequently filed a motion for discovery sanctions to preclude Brown from introducing any evidence on those subjects. Brown did not respond to that motion. The District Court partially granted Lloyd's' request, barring Brown from testifying on those subjects but nevertheless permitting him to introduce evidence on those subjects from other sources.

Lloyd's then filed a motion for partial summary judgment on Brown's claims and most of its...