Hillery v. Allstate Indem. Co.
| Decision Date | 02 April 2010 |
| Docket Number | Civil Action No. 08-0547-WS-C. |
| Citation | 705 F.Supp.2d 1343 |
| Parties | Tyrone HILLERY, et al., Plaintiffs,v.ALLSTATE INDEMNITY COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
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Thomas Blake Liveoak, Thomas Blake Liveoak, Liveoak & Boyles, L.L.C., Birmingham, AL, for Plaintiffs.
Douglas R. Kendrick, Thomas E. Bazemore, III, Huie, Fernambucq & Stewart, Birmingham, AL, for Defendant.
This matter comes before the undersigned on defendant's Motion for Summary Judgment (doc. 55), defendant's Motion to Strike Affidavit of Tyrone Hillery (doc. 59), and plaintiffs' Motion to Strike (doc. 60). The motions have been briefed and are now ripe for disposition.1
I. Nature of the Action.
Plaintiffs, Tyrone Hillery and Shelia Jones, resided in a mobile home in Thomasville Alabama that was damaged in a fire on December 15, 2007. Following that loss, Hillery made a claim to defendant, Allstate Indemnity Company, for payment of insurance benefits pursuant to a manufactured home policy that Allstate had issued to Hillery. In September 2008, after a protracted investigation, Allstate denied coverage for the stated reasons that (i) the insured had made material misrepresentations to Allstate, and (ii) the fire had been intentionally set, and the insured had the motive, means, and opportunity to participate in an act of arson.
On January 14, 2009, Hillery and Jones filed a Complaint against Allstate, interposing state-law causes of action for breach of contract, bad faith, misrepresentation, suppression and negligence in connection with Allstate's claims handling processes and denial.2 Allstate has now moved for summary judgment on each of these claims. The parties disagree as to the proper scope of the record, and have moved to strike certain of each other's exhibits. Because the contours of the record cannot be defined absent resolution of those motions to strike, the Court will address them before turning to the summary judgment motion.
II. Motions to Strike. A. Defendant's Motion to Strike.
In opposition to the Motion for Summary Judgment, plaintiffs submitted the six-page Affidavit of Tyrone Hillery. Defendant contends that the Hillery Affidavit should be stricken in its entirety as a sham.
“Under the law of this Circuit, we may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by deposition testimony.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir.2003); see also Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 284 (S.D.Ala.2006) (). That said, the Eleventh Circuit has cautioned against expansive application of this rule, noting that it must be “applied sparingly because of the harsh effect it may have on a party's case.” Allen v. Board of Public Educ. for Bibb County, 495 F.3d 1306, 1316 (11th Cir.2007) (citation and internal quotations omitted). For that reason, applicable case law “require[s] the court to find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.” Id. (citation omitted); see also Keaton v. Cobb County, 545 F.Supp.2d 1275, 1295 (N.D.Ga.2008) (). “If no inherent inconsistency exists, the general rule allowing an affidavit to create a genuine issue even if it conflicts with earlier testimony in the party's deposition ... governs.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987) (internal quotation marks, citations and footnote omitted).
In furtherance of its Motion to Strike, Allstate identifies only two areas of inconsistency between Hillery's deposition of October 6, 2009, and his summary judgment affidavit dated February 3, 2010. First, Allstate contends that Hillery admitted in his deposition that he had provided false information to the insurance agent in completing his insurance application, only to change his story in his summary judgment affidavit by averring that he had provided truthful information to the agent, who had apparently recorded his answers inaccurately. Second, Allstate maintains that Hillery testified in his deposition that he knew of his AFHIC insurance coverage at the time of his January 3, 2008 recorded statement, but that he professes in his affidavit to have been unaware of that coverage when he gave his recorded statement.
On this record, these identified discrepancies do not satisfy the high threshold necessary to warrant application of the sham affidavit rule. With respect to the policy application, Hillery certainly conceded in his deposition that some of the written answers set forth in his application form were not accurate. In particular, he acknowledged that there were more than four people living in the home at the time of the application, that he had previously experienced a cancellation of insurance coverage, and that there were pets on the premises, all in contradiction of data contained in the application. But this is not enough. For Hillery to admit that written information in his application (which he did not fill out himself) is wrong is not necessarily equivalent to an admission that he lied to the agent who completed the application form on his behalf. In that regard, defendant points to no deposition excerpt wherein Hillery unambiguously stated that he had supplied false information to the agent in these areas. At best, Allstate relies on the following exchange:
(Hillery Dep., at 33-34.) But what does “this information” mean? Was the interrogator referring to the false information recited on the application form, or the truthful information that Hillery had been discussing for the previous three pages of the deposition transcript? Given the ambiguity in the deposition on this point, there is no inherent inconsistency, but merely a possible inconsistency, between the cited portions of the deposition transcript and Hillery's statement in his affidavit that he had supplied truthful information to the agent. Accordingly, Allstate has not made a sufficient showing to support striking this portion of Hillery's affidavit pursuant to the sham affidavit rule.
Concerning the AFHIC insurance coverage issue, there is likewise no showing of an inherent inconsistency between Hillery's deposition testimony and his summary judgment affidavit. On this point, defendant characterizes the affidavit as including a statement that Hillery “was unaware of whether or not he had insurance with [AFHIC] ... [when] Mike Rocchio took his recorded statement.” (Doc. 59, at 3-4.) Defendant does not identify the specific portion of Hillery's affidavit where it contends this statement was made. Upon review, the Court finds no such statement contained in the affidavit; to the contrary, that document specifically indicates that Hillery had determined that the AFHIC policy was in effect on the same day that he filed claims with AFHIC and Allstate, all of which happened prior to the recorded statement. (Hillery Aff., at 3.) Once again, Allstate incorrectly invokes the sham affidavit rule. Not only is there no inherent inconsistency as to Hillery's awareness of AFHIC coverage at the time of his recorded statement, but there appears to be no inconsistency at all. The Court will not strike Hillery's summary judgment affidavit based on Allstate's strained and unsupported interpretation of it.
For the stated reasons, the Court concludes that Allstate has failed to establish the existence of an inherent inconsistency between Hillery's deposition testimony and his summary judgment affidavit.3 Accordingly, defendant's Motion to Strike Affidavit of Tyrone Hillery (doc. 59) is denied.
B. Plaintiffs' Motion to Strike.
Plaintiffs counter Allstate's Motion to Strike with one of their own, wherein they target the following four defense exhibits: the Affidavit of Kathi Libby found at Exhibit Q to the Motion for Summary Judgment, the recorded statements of Hillery and Jones found at Exhibits C and J, and the Green Tree letter found at Exhibit L. The Court will address each of plaintiffs' objections in turn.
First, plaintiffs urge the Court to strike the Affidavit of Kathi Libby, an Allstate employee who addresses the implications of omitted facts from Hillery's application form (such as the business use of the premises and the presence of a Rottweiler and pit bull on the premises) in terms of Allstate's internal processes and risk assessment. Plaintiffs insist that Libby's statements amount to expert testimony, and that her affidavit must be stricken because she was not properly disclosed as an expert. This objection fails because plaintiffs have offered no legal basis to bolster their conclusory premise that Libby “is clearly providing expert testimony.” (Doc. 60, at 2.) Upon inspection, Libby's Affidavit does not contain expert testimony; rather, it sets forth statements of fact by an Allstate employee about internal corporate procedures and how disclosure of certain facts would have affected those procedures, all based on her own personal knowledge and perceptions. To the extent that Libby's Affidavit offers opinions, they constitute lay opinions that lie comfortably within the ambit of Rule 701, Fed.R.Evid. As such, defendant was not obligated to disclose Libby as an expert.4
Even if Libby were properly classified as an expert, her nondisclosure would not warrant striking her Affidavit if “the failure was substantially justified or is harmless.” Rule 37(c)(1), Fed.R.Civ.P. Under the circumstances presented here, plaintiffs cannot reasonably profess to have incurred prejudice. From the outset of this litigation, Allstate has consistently...
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