Lewis v. Horace Mann Ins. Co., No. 1:03CV1281.

• Decision Date: 23 August 2005
• Docket Number: No. 1:03CV1281.
• Citation: 410 F.Supp.2d 640
• Parties: Ronald L. LEWIS, Plaintiff v. HORACE MANN INSURANCE CO., Defendant.
• Court: U.S. District Court — Northern District of Ohio

410 F.Supp.2d 640

Ronald L. LEWIS, Plaintiff v. HORACE MANN INSURANCE CO., Defendant.

No. 1:03CV1281.

United States District Court, N.D. Ohio, Eastern Division.

August 23, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. Charles Ruiz-Bueno, Weltman, Weinberg & Reis, Ronald I. Frederick, Law Office of Ronald I. Frederick, Cleveland, OH, for Plaintiff.

Robert H. Eddy, III, Gallagher Sharp, Julie L. Juergens, Richard C.O. Rezie, Gallagher, Sharp, Fulton & Norman, Cleveland, OH, for Defendant.

ORDER

OLIVER, District Judge.

On February 20, 2001, Ronald Lewis ("Lewis") filed a civil action against Horace Mann Insurance Company ("Horace Mann"), among others, in the Cuyahoga County Court of Common Pleas. After the Court of Common Pleas dismissed one of the defendants for lack of personal jurisdiction, Lewis voluntarily dismissed Horace Mann and the other remaining defendants. On June 26, 2003, Lewis refiled the case in this court pursuant to 28 U.S.C. § 1332. Lewis seeks injunctive relief and to recover actual, statutory, and punitive damages from Horace Mann for an alleged violation of the Federal Motor Vehicle Information and Cost Savings Act (the "Federal Odometer Act" or "FOA"), 49 U.S.C. § 32701 et seq., and for various torts which stem from Michigan Statute § 257 et seq. (the "Michigan Vehicle Code"). Currently pending before the court are: (1) Horace Mann's Motion for Reconsideration (ECF No. 64); (2) Lewis's Motion for Leave to Supplement Ronald Lewis's Affidavit (ECF No. 68); (3) Horace Mann's Motion to Strike Richard Diklich's Affidavit and portions of Ronald Lewis's Affidavit (ECF No. 66); and (4) Horace Mann's Motion for Summary Judgment (ECF No. 56). For the reasons that follow, Lewis's Motion for Leave to Supplement is denied, Horace Mann's motion for reconsideration is denied, its Motion to Strike is granted in part and denied in part, and its Motion for Summary Judgment is granted in part and denied in part.

I. FACTS

The following pertinent facts were derived from the pleadings and exhibits and are undisputed. In 1998, Horace Mann insured a 1998 Chevrolet Monte Carlo (the "Vehicle") in the state of Michigan. At that time, the Vehicle was owned by Douglas Kiewitt, who resided in Michigan. The odometer reading on Kiewitt's title was 58 miles. On December 23, 1998, the Vehicle was involved in a serious accident. At the time of the accident, the Vehicle's odometer read approximately 10,572 miles. Horace Mann hired Haller Appraisal Services ("Haller") to estimate the cost to repair the Vehicle. Haller's estimate was $13,620.25. Horace Mann then hired CCC Information Services ("CCC") to determine the value of the Vehicle had it not been in the accident. CCC determined the Vehicle's base value to be $18,150.00. Horace Mann added a six percent sales tax, $1,089.00, to the base valuation for a total of $19,239.00. Based on Haller's repair estimate and CCC's valuation, Horace Mann declared the Vehicle a total loss and paid Mr. Kiewitt $19,839.00, less a $500.00 deductible, as a settlement.

Horace Mann then arranged for the Vehicle to be transferred from a garage in Michigan, where it was kept after the accident, to Diehl Auto ("Diehl"), also in Michigan. Diehl paid Horace Mann $4,356.00 for the Vehicle, including a transportation fee. The Vehicle's title passed directly from Kiewitt to Diehl; Horace Mann neither obtained title in its name nor obtained a salvage title. It was Horace Mann's practice never to take title after paying total loss settlements, unless the vehicle had been stolen. (R. Zemba Dep. 58-59, ECF No. 57.)

Express Auto Auction ("Express") then purchased the Vehicle from Diehl at an auction in Michigan. Express made some repairs to the Vehicle and sold it at auction to Zemba Enterprises ("Zemba"), a car dealer in Cleveland, Ohio. At the auction, the Vehicle was marked with a yellow caution marker as a warning to buyers. Michael Zemba, the owner and buyer of Zemba Enterprises, states that he the only history he knew about the Vehicle when he bought it was that the hood had been repaired. (M. Zemba Dep. 59-60, ECF No. 58.) When Zemba became the owner, the Vehicle's odometer read 10,665 miles. After purchasing the Vehicle, Zemba made some small repairs. Lewis bought the Vehicle from Zemba in Cleveland, Ohio, around June 26, 1999, for $15,550.00 (taxes and filing fees included). At the time Lewis bought the Vehicle, the odometer read approximately 11,992 miles.

To assist him in deciding whether or not to purchase the Vehicle, Lewis asked the Zemba salesperson about the Vehicle's history, test drove it, and looked up its Blue Book price. The Vehicle's Blue Book value was between $18,000 and $19,000, well above Zemba's asking price. Lewis submits that the Zemba salesman told him the vehicle had never been in a wreck and was in great condition. (Lewis Aff. ¶ 4, ECF No. 65 Ex. 8.) On his test drives, Lewis noticed some small problems, but nothing severe. Despite doing some investigatory work, Lewis did not examine the Vehicle's title prior to making his purchase.

Lewis found out the Vehicle had been in a serious accident a short time after buying it. He took the Vehicle to a Chevy dealership to have some work done and while there, a dealership repair person asked Lewis if he knew the car had been in a serious accident. Sometime thereafter Lewis filed the state lawsuit.

According to Michael D'Amico, a former sales representative from Zemba, dealers have an incentive not to get salvage titles, since the cars can typically sell for at least ten percent more without salvage title, and banks are more likely to finance their purchase. (D'Amico Dep. 40-41, ECF No. 65, Ex. 6.)

II. NON-DISPOSITIVE MOTIONS

A. Horace Mann's Motion for Reconsideration

Horace Mann seeks to have this court reconsider its January 18, 2005 Order (ECF No. 62), granting in part and denying in part Plaintiff's Motion for a Sixty-Day Continuance to Respond to Horace Mann's Motion for Summary Judgment Pursuant to Rule 56(f), ECF No. 61. In its January 18, 2005 Order, the court gave Plaintiff a brief extension to file and indicated that if Plaintiff needed additional time, he must indicate the specific information he needs to respond. Plaintiff filed his opposition without notifying the court of any additional information causing a delay. Since the motion for summary judgment has been fully briefed, Horace Mann's motion for reconsideration (ECF No. 64) is denied as moot. In so ruling, the court makes no determination as to whether or not Lewis made any misrepresentations to the court in seeking a Rule 56(f) continuance.

B. Lewis's Motion for Leave to Supplement Ronald Lewis's Affidavit

Lewis seeks leave to supplement his Affidavit, in support of his Memorandum in Opposition to Summary Judgment, with a letter from BF Goodrich Credit Union ("Credit Union"). Credit Union financed Lewis's purchase of the Vehicle. The substance of the letter is that Credit Union would not have financed the Vehicle, using the Vehicle as collateral, if the Vehicle had a salvage title. Lewis uses the letter to show the Vehicle's value was diminished when Horace Mann declared it a total loss, the pool of available buyers was smaller, and Horace Mann was involved in a scheme to defraud. (Pl.'s Opp'n Mem. at 41.) Horace Mann argues that the letter is inadmissible hearsay because it is an out of court statement made by another and offered for the truth of the matter asserted, see Fed.R.Evid. 801, and that the letter does not fit into any hearsay exception. See Fed.R.Evid. 803-807. This court agrees. See Mooney v. Cleveland Clinic Found., 184 F.R.D. 588, 590-91 (N.D.Ohio 1999) ("the court may not consider [hearsay] when ruling on a summary judgment motion") (relying on N. Am. Specialty Ins. Co. v. Myers, 111 F.3d 1273 (6th Cir. 1997)). If Lewis wanted to proffer the substance of this letter, the proper method would have been for the letter's author-Diane M. Cleavenger (assuming she was qualified to opine on the matter asserted)-to swear out an affidavit. Just as Lewis could not use this unsworn letter at trial in an attempt to establish a fact, he cannot use it at summary judgment to create a genuine issue of material fact. Fed. R.Civ.P. 56(e); see also Meserole v. M/V Fina Belgique, 736 F.2d 147, 149 (5th Cir. 1984) ("The unsworn letter is inadmissible on summary judgment") (citations omitted). Lewis's Motion for Leave to Supplement is denied. The court will not consider the Credit Union letter while deciding the pending Summary Judgment Motion.

C. Horace Mann's Motion to Strike

Horace Mann moves this court to strike Richard Diklich's ("Diklich") affidavit and portions of Lewis's affidavit because neither complies with Federal Rule of Civil Procedure 56(e). Specifically, Horace Mann asks the court to strike Diklich's Affidavit because the documents referenced therein are not attached, the affidavit fails to set forth how Diklich is qualified as an expert, and fails to show Diklich is competent to testify about the matters therein. With respect to Lewis's affidavit, Horace Mann moves the court to strike the portions of the affidavit that purport to authenticate documents because Lewis was not the custodian of those records and therefore does not have the personal knowledge to be competent to testify to their authenticity. In response, Lewis argues only that his affidavit should not be struck because it does not attempt to authenticate the documents; rather, it only represents that the documents are the same as they were when they were given to Lewis during discovery. Further, Lewis contends one of the documents, a certified title of transfer, is self authenticating; thus, Lewis was not required to authenticate it.

As indicated above, Fed.R.Civ.P. 56(e) sets forth the requirements for affidavits used in support of or in opposition to a motion for summary judgment. The rule provides that those affidavits "shall...