Gay v. Safeco Insurance Company of America
The plain error doctrine will not rescue a party from the consequences of its own strategic choice. In connection with a furnace malfunction and burst pipe, Richard and Marie Gay filed a breach of contract action against Safeco Insurance Company of America alleging that it had failed to pay all losses covered by the Gays' homeowners' insurance policy issued by Safeco. Safeco filed a counterclaim alleging fraud. At trial, outside the presence of the jury, the court apprised Richard Gay several times during cross-examination of his fifth amendment privilege against self-incrimination. Safeco did not object. Before the jury, Richard Gay claimed his fifth amendment privilege and refused to answer certain questions. The court instructed the jury that it could draw an adverse inference from Richard Gay's invocation of the privilege. The jury returned a verdict for Safeco on the Gays' breach of contract claim and for the Gays on Safeco's counterclaim. Safeco filed a motion including to set aside the verdict on its counterclaim, arguing, for the first time, that the court improperly advised Richard Gay of his Fifth Amendment right against self-incrimination because he had waived the privilege by testifying on direct. The court denied the motion. Safeco appealed. The Appellate Court affirmed the judgment. Safeco's claim that the court improperly advised Richard Gay regarding his 5th amendment privilege was not preserved and the Appellate Court declined to review the claim. Safeco conceded that it did not object to the court's advisement when given but argued that the issue was preserved because it raised the claim in post-trial motions citing Practice Book §60-5. However, Safeco did not raise the issue prior to judgment and the claim did not arise subsequent to trial. Further, the claim did not qualify as plain error. Safeco presented no reason to believe that the alleged error was so obvious that it would undermine public confidence in the judicial process or that the verdict is unreliable or a miscarriage of justice. Moreover, Safeco enjoyed the tactical benefit of the court's adverse inference instruction to the jury and withheld its objection until after the verdict was returned. Secondly, the trial court did not abuse its discretion in denying Safeco's motion to compel a re-inspection of the home just before trial was to begin.