dissenting.
I am in complete agreement with the majority’s crystalline clarification of the previously murky law of increase-of-hazard. I part company from my colleagues only insofar as they have concluded that this record warrants a reversal. Like the trial court and the Appellate Division, I do not find an evidential basis for an increase-of-hazard instruction.
There is no direct evidence that Esposito or anyone “under his control or with his knowledge” ever locked the sprinkler system in the off-position. In fact, the only evidence is that, except during the actual fire, the sprinkler system was locked in the on-position, shown by the fact that Esposito left a key for his employees so they could momentarily turn off the system if it was activated *20accidentally (by a smoker for example). Obviously, if the system was locked in the off-position, no key would have been necessary. Given the absence of any direct evidence of Esposito’s complicity in locking the sprinkler system, it was his financial motive that got the arson case to the jury. As the majority properly notes, “Princeton’s theory at trial was that Esposito set the fire or facilitated it by disabling the sprinkler system to obtain the insurance proceeds and thus alleviate his financial burdens.” Ante at 7, 754 A.2d 1140. A thin circumstantial case pivoting off financial motive was advanced on that point. There was, however, no evidence, circumstantial or otherwise, that Esposito (or anyone in his control or with his knowledge) locked the system in the off-position for a reason other than to facilitate the arson. That missing proof is what would have been necessary to justify an increase-of-hazard instruction.
The possibilities here are that Esposito locked the sprinkler system in the off-position to facilitate an arson; locked it for a different purpose, thus increasing the hazard; or did not lock it at all. Only the first and last of those scenarios can fairly be inferred from the record. The reason the trial court refused the increase-of-hazard instruction was because the trial, at heart, had been about arson; the court recognized that there was no separate evidence to support another theory of defense. As the Appellate Division aptly observed, Princeton’s case
was tiled on the theory that [Esposito] set the fire or intentionally facilitated the arson by locking off the sprinkler system. Thus, if [Esposito] had turned off the sprinkler system, defendant did not have to pay under its policy. There was no evidence to suggest that [Esposito] had deactivated the system negligently or for some purpose unrelated to the arson.
That is not to suggest locking the sprinkler could not constitute an increase-of-hazard, or that arson and increase-of-hazard can not exist simultaneously in a single case. For example, an insured who deliberately locks a sprinkler system for a purpose other than arson can be denied coverage on increase-of-hazard grounds. Likewise, if there had been evidence in this case, in addition to the arson evidence, that Esposito or an employee locked the sprinkler *21system in the off-position to save them the trouble of disengaging it if it accidentally activated, both an increase-of-hazard charge and an arson instruction would have been necessary. However, there was no such evidence here; thus the arson charge alone was adequate.
I would affirm the Appellate Division and allow Esposito’s verdict to stand.
For reversal and remandment — Chief Justice PORITZ, and Justices O’HERN, STEIN, COLEMAN, VERNIERO and LaVECCHIA — 6.
For affirmance — Justice LONG — 1.