Menard v. Cooperative Fire Insurance Assoc. of VT

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 88-177

                            OCTOBER TERM, 1989


Daniel R. and Joyce L. Menard     }          APPEALED FROM:
                                  }
                                  }
     v.                           }          Franklin Superior Court
                                  }
                                  }
Cooperative Fire Insurance        }
Association of Vermont            }          DOCKET NO. S62-85FC


             In the above entitled cause the Clerk will enter:

    Plaintiffs, Daniel and Joyce Menard, sued D.M.C. Electric, Inc. alleging
that faulty installation of an outlet box caused a fire that burned down
plaintiffs' barn.  Prior to the trial defendant, Cooperative Fire Insurance
Association of Vermont, which was plaintiffs' fire insurance carrier and
paid plaintiffs' claim, took possession of the outlet box and lost it and
all pictures of it.  As a result, plaintiffs were unable to show the box to
the jury, and plaintiffs' expert was unable to use it in his testimony in
the case against D.M.C. Electric.  When the jury returned a verdict against
plaintiffs in that case, they sued defendant, alleging that because of
defendant's negligence in losing the outlet box they were unable to prove
that the box was "the source of the fire."  The trial court dismissed this
action, holding that collateral estoppel barred it because the jury in the
case against D.M.C. Electric had determined that it was not negligent in
relation to the fire.  Plaintiffs argue here that collateral estoppel was
improperly applied to this case.

     We agree that collateral estoppel as applied by the trial court is
inapplicable.  Under the trial court's theory, a tort action like this could
never proceed because, even if the loss of the box were shown to be the
direct cause of the jury verdict against plaintiff, that verdict is binding
and prevents recovery.  Presumably, that result would apply even if a party
intentionally destroyed evidence to prevent recovery.  However, a jury
determination is preclusive under collateral estoppel doctrine only if
plaintiffs had a "full and fair opportunity to litigate the issue in the
earlier action."  Trepanier v. Getting Organized, Inc., 154 Vt. ___, ____,
583 A.2d 583, 587 (1990).  The heart of plaintiffs' case against defendant
is that an opportunity to show that D.M.C. Electric's actions were the
proximate cause of the fire was not afforded because of defendant's
negligence.

     We affirm the dismissal of plaintiffs' action, but on different
grounds.  The interrogatories provided to the jury in the action against
D.M.C. Electric specifically provided that they were to first determine
whether D.M.C. Electric was negligent and then determine if the negligence,
if any, was the proximate cause of the fire.  The jury determined that
D.M.C. Electric was not negligent and never reached the proximate cause
question.  We must assume that the jury followed the instructions in
completing the interrogatories.  See Claude G. Dern Elec., Inc. v.
Bernstein, 144 Vt. 423, 427, 479 A.2d 136, 139 (1984).

     As shown by their complaint and their theory in the action against
D.M.C. Electric, the condition of the outlet box was relevant to show that
improper wiring of the box was the cause of the fire.  Thus, the loss of the
box caused no harm.  It did not interfere with plaintiffs in showing D.M.C.
Electric was negligent since it was undisputed that the box was wired in the
way that plaintiffs' expert testified was dangerous.  In this case, plain-
tiffs must prove that defendant's negligence was the proximate cause of
their damage -- that is, the lost recovery in their case against D.M.C.
Electric.  See Hobart v. P.J.'s Auto Village, Inc., 136 Vt. 287, 289, 388 A.2d 419, 420 (1978).  The undisputed facts show that they cannot do so
because the jury never reached the proximate cause question and denied them
recovery on absence of negligence.

     Affirmed.



                                   BY THE COURT:*




                                   Louis P. Peck, Associate Justice


[x]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   F. Ray Keyser, Associate Justice (Ret.),
                                   Specially Assigned


                                   * Justice Morse attended oral argument
                                     but did not participate in the   decision.