Casey v. Phelan Ins. Agency, Inc.

• Decision Date: 09 May 2006
• Docket Number: No. 3:03-CV-00545.,3:03-CV-00545.
• Citation: 431 F.Supp.2d 888
• Parties: John Norman CASEY, and Carol Casey, Plaintiffs v. PHELAN INSURANCE AGENCY, INC., Alan Davis Insurance Agency, Inc., and Truck Insurance Exchange, Defendants.
• Court: U.S. District Court — Northern District of Indiana

Page 888

431 F.Supp.2d 888

John Norman CASEY, and Carol Casey, Plaintiffs v. PHELAN INSURANCE AGENCY, INC., Alan Davis Insurance Agency, Inc., and Truck Insurance Exchange, Defendants.

No. 3:03-CV-00545.

United States District Court, N.D. Indiana, South Bend Division.

May 9, 2006.

Harry A. Wilson Jr., PHV, William E. Winingham, Wilson Kehoe and Winingham, Indianapolis, IN, Thomas Howard Singer, Nickle and Piasecki, South Bend, IN, for Plaintiffs.

Philip E. Kalamaros, Hunt Suedhoff Kalamaros LLP, South Bend, IN, Laura S. Reed, Riley Bennett & Egloff LLP, Indianapolis, IN, for Defendants.

MEMORANDUM, OPINION, AND ORDER

ALLEN SHARP, District Judge.

This matter is before the Court on Defendants', Truck Insurance Exchange ("Truck") and Alan Davis Insurance Agency, Inc. ("Alan Davis"), Motion for Summary Judgment (Docket No. 45) and Defendant's, Phelan Insurance Agency, Inc. ("Phelan"), First Motion for Summary Judgment (Docket No. 50). This matter is also before the Court on Defendant Phelan's Rule 56 Motion to Strike Appendix, Exhibit "G" (Docket No. 60). Although the docket sheet in this case indicates that the jurisdictional basis here is federal question jurisdiction, the papers in the case might indicate otherwise. This Court has jurisdiction under 28 U.S.C. 1332, invoking Indiana law with regard to issues surrounding an automobile accident and insurance coverage. This Court held oral argument on these issues on April 26, 2006 in South Bend, Indiana, and the parties have fully briefed the relevant issues.

For the reasons discussed below, Defendant Phelan's Rule 56 Motion to Strike Appendix, Exhibit "G" (Docket No. 60) is GRANTED. Defendants Truck and Alan Davis's Motion for Summary Judgment (Docket No. 45) arid Defendant Phelan's First Motion for Summary Judgment (Docket No. 50) are also GRANTED.

I. Procedural History and Factual Background

The factual setting of this case is fairly simple and straightforward. In 1999, at the time necessary to renew his company's liability insurance, Herman Joe Rex ("Rex"), President of Rex Transportation, Inc. ("Rex Transportation"), received a letter from Phelan offering to quote insurance policies. Rex Dep. at 8:13-9:8. Alan Davis worked with Phelan in providing these quotes.¹ Id. at 47:23-48:21. On November 5, 1999 Rex met with Mick McClurg, from Phelan, to discuss potential liability insurance. At that meeting, Rex asked McClurg what uninsured/underinsured motorist ("UM/UMI") limits his competitors carried and, based on that information and his prior policy with the Gibson Agency ("Gibson"), requested that the UM/UMI coverage on his policy be set at $50,000. Rex testified that he knew higher limits of UM/UMI coverage were available. Id. at 16:22-17:1.

Rex subsequently received an insurance quote from Truck through Alan Davis and Phelan. Thereafter, Phelan issued a motor vehicle liability policy to Rex.² This policy was renewed under the same terms as for the initial period and extended, covering the period through November 7, 2001. Throughout the entire period of coverage, Rex paid all premiums owing. Ultimately, Rex purchased liability insurance from Truck Insurance Exchange ("Truck") for injuries to third parties in the amount of one million dollars. This policy also provided uninsured/underinsured coverage in the amount of fifty thousand dollars.

In the early morning hours of August 11, 2001, the Plaintiff, John Norman Casey ("Casey"), was driving a 1997 International semi-tractor trailer rig owned by his employer, Rex Transportation, Inc. Casey was traveling in a northbound direction on U.S. 421 in Boone County, Indiana at the same time that Douglas P. Scott ("Scott"), now deceased, operated a Chevrolet pickup in an eastbound direction on State Road 47, approaching its intersection with U.S. Highway 421. A stop sign required the vehicles on State Road 47 to stop at its intersection with U.S. Highway 421. According to the papers in this case, Scott failed to stop or yield the right of way, causing a collision with Casey. The collision caused the tractor trailer operated by Casey to turn on its side and ignite. As a result, Casey suffered permanent, severe injuries. He claimed special damages in excess of one hundred thousand dollars.

On October 17, 2002, Scott's insurance carrier paid its policy maximum, $100,000,³ to Casey, but the payment was insufficient to cover his medical expenses. As a result, the Casey's brought this action against Rex Transportation's liability insurer and its agents (collectively referred to as "Defendants") for breach of contract for failure to pay underinsured motorist benefits, negligent failure to procure insurance, and negligent failure to provide insurance advice.

II. Motion to Strike Analysis

Before the Court can rule on Defendants' Motions for Summary Judgment, it must address Defendant Phelan's Rule 56 Motion to Strike Appendix, Exhibit "G." On January 6, 2006, Defendant Phelan filed its Motion to Strike, pursuant to N.D. Ind. L.R. 7.1 and 56.1(d). Specifically, Phelan requested that this Court strike Appendix, Exhibit "G" of Plaintiffs' designation of materials, which was filed in conjunction with Plaintiffs' Response to Defendants' Motions For Summary Judgment (Docket Nos. 56 and 57). Phelan asserts that the promotional flyer contained within Exhibit "G" and Plaintiffs' references to it throughout their supporting argument are inadmissible because the flyer is unauthenticated. On January 17, 2006, the Plaintiffs filed their Response (Docket No. 63) in objection to Defendant's Motion to Strike.

In determining whether to grant a motion for summary judgment, the court may consider evidence beyond the pleadings, but may only consider evidence which would be otherwise admissible at trial. Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir.2001); See also Whitted v. General Motors Corp., 58 F.3d 1200, 1204 (7th Cir.1995); Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 490 (7th Cir. 1988). When evidence is offered through exhibits on a summary judgment motion, those exhibits "must be identified by affidavit or otherwise be admissible." Powers v. Dole, 782 F.2d 689, 696 (7th Cir.1986). In Stinnett v. Iron Works Gym/Executive Health Spa, Inc., the Court stated, the "evidence need not be admissible in form (for example, affidavits are normally not admissible at trial), but it must be admissible in content." 301 F.3d 610, 613 (7th Cir.2002); See Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).

Before evidence may be admitted, it must be authenticated. Federal Rule of Evidence 901(a) states, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." In United States v. Brown, the 7th Circuit stated, "[a]uthentication relates only to whether the documents originate from [their alleged source]; it is not synonymous to vouching for the accuracy of the information contained in those records." 688 F.2d 1112, 1116 (7th Cir.1982); See Hood v. Dryvit Systems, Inc., No. 04-CV-3141, 2005 WL 3005612, *3 (N.D.Ill, Nov. 8, 2005).

Here, Phelan asserts that the promotional flyer presented in Exhibit "G" should be stricken because it is unauthenticated. This exhibit was originally introduced as Exhibit 9 to the Mick McClurg deposition. According to Phelan, McClurg identified the flyer as a Phelan Insurance Agency brochure, but "denied that it was currently in use and he stated that he did not know whether it was in circulation in 1999." Motion to Strike at 2; citing McClurg Dep. at 56:6-11; 56:12-19. Phelan further argues that McClurg "testified that Phelan has used several brochures but he did not know the time period that any particular version was in circulation." Id.; citing McClurg Dep. at 12:23-14:6. Accordingly, Phelan argues that since there is no date or copyright on the brochure and no testimony demonstrating that the flyer was in use in 1999, there is nothing to indicate its production and circulation dates. Phelan also argues that there is no evidence to support Plaintiffs' contention that "Rex read the brochure prior to meeting Mick McClurg and. Alan Davis or that he relied upon any representations made in the brochure." Id. Therefore, Phelan asserts that the Plaintiffs cannot represent Exhibit "G" as a 1999 brochure and that the brochure fails to meet the requirements of F.R.E. 901(a).

Plaintiffs contend that Exhibit "G" "represents a description from Defendant Phelan of continuing business practices which were in place at the time Herman Rex purchased insurance from Phelan Insurance Agency." Plaintiffs Response to Motion to Strike at 1. In their Response, Plaintiffs acknowledge that McClurg was not certain as to whether the flyer was in circulation as early as 1999. Id. Plaintiffs contend, however, that this fact does not preclude admissibility under F.R.E. 901(a).

Plaintiffs also argue that Exhibit "G" represents the business practices of Phelan. Plaintiffs seek to use quotes pulled from Exhibit "G" in order to demonstrate that Phelan held itself out to be an expert in the insurance field. Plaintiffs assert that even though McClurg testified that he was unsure of whether that particular flyer was in circulation as early as 1999, he also testified that the "business practices of Phelan Insurance agency have not changed in any material way since that time." Id.; citing McClurg Dep. at 58. Thus, Plaintiffs' main argument is that since the business practices at Phelan had not changed since 1999, lain inference can be made that the flyers would be essentially the same too." Id. at 2. Plaintiffs assert that they "should not be penalized because Defendant Phelan cannot remember the time of the flyer in the deposition or provide the appropriate flyer through the discovery process." Id.

This Court has reviewed the arguments presented in Phelan's Motion...