NGM Ins. Co. v. Santos

• Decision Date: 01 September 2020
• Docket Number: Civ. Act. No. 18-11001-TSH
• Citation: 483 F.Supp.3d 1
• Parties: NGM INSURANCE COMPANY, Plaintiff, v. Luis SANTOS, Matthew Ostrander, and Barbara Jean Crehan, Defendants.
• Court: U.S. District Court — District of Massachusetts

483 F.Supp.3d 1

NGM INSURANCE COMPANY, Plaintiff,

v.Luis SANTOS, Matthew Ostrander, and Barbara Jean Crehan, Defendants.

Civ. Act. No. 18-11001-TSH

United States District Court, D. Massachusetts.

Filed September 1, 2020

Scott T. Ober, Michael S. Melville, Hassett & Donnelly, P.C., Worcester, MA, for Plaintiff.

Paul R. Johnson, Ballin & Associates, LLC, Foxborough, MA, for Defendants.

Matthew Ostrander, pro se.

Barbara Jean Crehan, Canterbury, NH, pro se.

MEMORANDUM OF DECISION AND ORDER

HILLMAN, D.J.

Introduction

This is an action under 28 U.S.C. § 2201 pursuant to which NGM Insurance Company ("NGM") seeks a declaration of its rights and obligations under an automobile insurance policy it issued to Barbara Jean Crehan ("Crehan") in regards to a Massachusetts state court lawsuit brought by Luis Santos ("Officer Santos") against Matthew Ostrander ("Ostrander"). Officer Santos was injured when Ostrander struck him while driving a 2002 Hyundai Sante Fe ("Sante Fe"), owned by Crehan. More specifically, NMG seeks: a declaratory judgment that it has the right to void or rescind the insurance policy it issued to Crehan covering the Sante Fe which Ostrander was driving at the time that Santos was injured (Count I); a declaration of NGM's obligation and duties under the policy given that Crehan provided false, deceptive, misleading, or incomplete information about her household members and/or customary operators which increased NGM's risk of loss (Count II); a declaration that the policy issued by NGM to Crehan does not afford coverage to Ostrander for the claims asserted by Officer Santos because his injuries were intentionally caused by Ostrander and were not the result of an unexpected and/or unintended event (Count III); and for whatever other reason the Court deems fair and just, it declare that NGM is not obligated to afford coverage to Ostrander for Officer Santos's claims (Count IV).

This Memorandum of Decision and Order addresses NGM Insurance Company's Motion for Summary Judgment (Docket No. 50)¹ and Plaintiff, NGM Insurance Company's, Motion To Strike Exhibits 17, 18 And 19 Of Luis Santos’ Opposition To Plaintiff's Motion For Summary Judgment (Docket No. 59). For the reasons set forth below, the motions are granted.

THE MOTION TO STRIKE

As part of his opposition to NGM's motion for summary judgment, Officer Santos has cited to the following three exhibits in support of various factual averments:

1. the deposition of Officer Brian Lewos ("Officer Lewos") who spoke to Crehan via telephone while investigating Ostrander driving Crehan's vehicle into Officer Santos;

2. the deposition testimony of Linda Nilsen ("Nilsen"), an adjuster for NGM, relaying information she obtained from Crehan in a telephone interview regarding the afore mentioned incident; and

3. a recording of statements that Crehan made to Nilsen.

NGM argues that these documents are hearsay, not properly attested and/or are irrelevant. Officer Santos's arguments against striking the various documents are best addressed in context, however, suffice to say he argues that they are relevant and admissible as non-hearsay or under an exception to the hearsay rule.²

Officer Lewos's Deposition (Exhibit No. 17)

NGM seeks to strike Exhibit 17, which is the deposition of Officer Lewos who conducted a telephone interview of Crehan while investing the report of a male who had broken into a residence in Millbury, MA on February 11, 2017. When Officer Lewos responded to the residence, the homeowner gave him a description of a male individual and the license plate of a vehicle involved in the burglary. Officer Lewos called Crehan because the car was registered to her. Officer Lewos told Crehan that there may have been an incident involving her car in Millbury but did not go into detail. Crehan told Officer Lewos that her husband, Ostrander "took" the car a couple of days before. Officer Lewos testified that from his conversation with Crehan, it was his "understanding" that Ostrander was using the car with her permission³ . Officer Santos asserts that the statement that Crehan made to Officer Lewos is admissible first, because it is not being offered to show the truth of the matter, rather it is being offered to show Crehan's state of mind (that she believed Ostrander had the right to use her car at the time of the accident).⁴

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). "It is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted." Hannon v. Beard , 645 F.3d 45, 49 (1st Cir. 2011) (citation to quoted case omitted)(internal quotation marks omitted). Thus, except if the proponent demonstrates that the statements independently fall within a different hearsay exception, witness statements such as those made by Crehan to Officer Lewos are generally excluded under the hearsay rule. See Fed.R.Evid. 801, 802. Officer Santos asserts that he is not seeking to admit the statement in order to prove the truth of the matter, i.e. , that Crehan had given permission to Ostrander to borrow the Sante Fe, rather he is attempting to use it to establish Crehan's state of mind, i.e. , that she believed that Ostrander had the right to use the car. To fall within the state of mind exception set forth in Fed.R.Evid.803(3), the statement must be one "of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will." However, it is difficult to comprehend how Crehan's statement is one of her "then-existing state of mind" as opposed to her state of mind when Ostrander first took the car—that is, her statement speaks to a past act. See United States v. Netschi, 511 F. App'x 58, 61 (2d Cir. 2013) (to admit statements of one's state of mind with regard to conduct that occurred earlier would significantly erode the intended breadth of this hearsay exception). However, it is not necessary for me to resolve this issue as it is clear from Officer Lewos's own deposition testimony that Crehan never stated to him that Ostrander "borrowed" the car. Rather, she said he "took" the car and Officer Lewos inferred from their conversation that Ostrander had permission to use it. Since the cited evidence does not support Officer Santos's version of the alleged disputed fact, I will not consider it. NGM's motion to strike Exhibit 17 is granted.

Nilsen's Deposition (Exhibit No. 18) and The Recording

NGM seeks to strike the deposition of Nilsen (Exhibit 18), an adjuster who on its behalf was investigating the events of February 11^th and a recording (Exhibit 19) which memorializes a conversation Nilsen had with Crehan on April 7, 2017. Citing to the deposition and recording, Officer Santos asserts that they controvert Crehan's testimony that at the time that Ostrander struck him, he did not have permission to borrow the Sante Fe. More specifically, Officer Santos cites to statements that Crehan made to Nilsen that she had permitted Ostrander to use the Sante Fe so he could look for employment. In juxtaposition to Crehan's alleged statement to Officer Lewos, Officer Santos does not argue that the statements which Crehan made to Nilsen are admissible to establish her then existing state of mind, i.e. , that she believed that Ostrander had permission to use the Sante Fe on February 11^th. Instead, Officer Santos argues that the statements to Nilsen and the recording memorializing such statements are admissible under the residual exception to the hearsay rule, Fed.R.Evid. 807 because the evidence possesses circumstantial guarantees of trustworthiness.

Pursuant to Rule 807, as amended effective December 31, 2019, the Residual Exception, hearsay is admissible, even if not admissible under one of the Rule 803 or 804 exceptions, if:

(1) the statement is supported by sufficient guarantees of trustworthiness--after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and

(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

Fed. R. Evid. 807.

"The First Circuit has emphasized that ‘Congress did not intend for the exception to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions or to authorize major judicial revisions of the hearsay rule.’ " Holmquist v. Farm Family Cas. Ins. Co. , 800 F. Supp. 2d 305, 311 (D. Me. 2011) (internal punctuation and citation omitted). The exception is to be utilized only in exceptional circumstances and therefore, is rarely applied. United States v. Trenkler , 61 F.3d 45, 59 (1st Cir. 1995). "Assessment of whether Rule 807 ’s requirements are met in a given case ‘is a fact-specific inquiry,’ in which the totality of the circumstances must be examined; ‘[n]o single factor is dispositive[.]’ " Emhart Indus., Inc. v. New England Container Co. , No. CA 06-218 S, 2014 WL 5808390, at *2 (D.R.I. Nov. 7, 2014) (internal citation and citation to quoted case omitted). "The proponent of a statement, citing the residual exception, bears a heavy burden." ADT LLC v. Alarm Prot. LLC , No. 9:15-CV-80073, 2017 WL 1881957, at *2 (S.D. Fla. May 9, 2017).

First, the Court must determine whether the proffered hearsay evidence is supported by sufficient guarantees of trustworthiness. In making this determination, the Court considers the totality of the circumstances, and whether there is corroborating evidence. In his argument in support of his contention that the statements to Nilsen and corresponding recording are admissible,...