Rotman v. Progressive Ins. Co.

• Decision Date: 28 June 2013
• Docket Number: Case No. 5:12–cv–67.
• Citation: 955 F.Supp.2d 272
• Court: U.S. District Court — District of Vermont
• Parties: Lisa ROTMAN, Plaintiff, v. PROGRESSIVE INSURANCE COMPANY and The Concord Group, Defendants.

955 F.Supp.2d 272

Lisa ROTMAN, Plaintiff,

v.PROGRESSIVE INSURANCE COMPANY and The Concord Group, Defendants.

Case No. 5:12–cv–67.

United States District Court, D. Vermont.

June 28, 2013.

Brooks G. McArthur, Esq., David J. Williams, Esq., Jarvis, McArthur & Williams, LLC, Burlington, VT, for Plaintiff.

Susan J. Flynn, Clark Werner & Flynn, P.C., Burlington, VT, Barbara R. Blackman, Lynn, Lynn & Blackman, P.C., for Defendants.

OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION TO EXCLUDE AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(Doc. 31, 35)

CHRISTINA REISS, Chief Judge.

Plaintiff Lisa Rotman brings this insurance coverage action seeking compensation under the uninsured motorist insurance policy she holds with Defendants Progressive Insurance Company (“Progressive”), as well as the excess coverage uninsured motorist insurance policy she holds with The Concord Group (“Concord”) (collectively “Defendants”). Plaintiff alleges she was injured in a motorcycle crash in Sheldon, Vermont, after exiting the roadway to avoid oncoming vehicles which she claims were “crowding” the centerline and travelling at an excessive rate of speed in the opposite lane of travel.

Presently before the court are Defendants' motions to exclude the testimony of Plaintiff's expert witness, Robert Duhaime, and for summary judgment. (Docs. 31 & 35.) Defendants contend that Mr. Duhaime's opinion is unreliable and is based entirely on the observations of an interested witness. Defendants further contend that without Mr. Duhaime's opinion, Plaintiff cannot survive summary judgment. Plaintiff opposes the motions and requested an evidentiary hearing to address the Daubert issue raised by Defendants. An evidentiary hearing was held on April 11, 2013.

Plaintiff is represented by Brooks G. McArthur, Esq. and David J. Williams, Esq. Defendants are represented by Susan J. Flynn, Esq. and Barbara R. Blackman, Esq.

I. Factual Background.A. Plaintiff's Supplemental Statement of Undisputed Facts.

Plaintiff filed a supplemental statement of undisputed material facts in addition to her response to Defendants' statement of undisputed facts. (Doc. 36–1.) Defendants have neither moved to strike Plaintiff's additional facts nor responded to them in any manner. Accordingly, it is difficult to discern whether Plaintiff's additional facts are in fact disputed.

In Schroeder v. Makita Corp., 2006 WL 335680 (D.Vt. Feb. 13, 2006) (Sessions, C.J.), this court ruled that the Local Rules do not provide an opportunity for the nonmoving party to file a statement of undisputed facts at the summary judgment stage. Id. at *3. The court explained:

Local Rule 7.1(c)(2) afforded Schroeder [the party opposing summary judgment] the opportunity to bring relevant disputed factual matters to the Court's attention, and he took full advantage of this opportunity by filing a 33–page response to Makita's statement of undisputed facts. The Local Rules make no provision for the second document filed by Schroeder. Furthermore, because a party's ability to withstand summary judgment depends on the existence of disputed facts, not undisputed ones, there is no need for Schroeder to establish undisputed facts at this stage of the litigation. Accordingly, the Court will strike Schroeder's Statement of Undisputed Facts, and Makita is under no obligation to respond to it. The Court will not consider the document in its disposition of the remaining motions.

Id. at *4. The court adopted this same approach in Post v. Killington Ltd., 2010 WL 3323659, at *1 n. 1 (D.Vt. May 17, 2010), as well as in Boule v. Pike Industries, Inc., 2013 WL 711937, at *1–2 (D.Vt. Feb. 27, 2013), although in both instances it considered any additional facts that were both integral to the parties' arguments and undisputed.

Local Rule 56(b) (effective June 29, 2012) provides that “a party opposing summary judgment ... must provide a separate, concise statement of disputed material facts.” All material facts in the movant's statement of undisputed facts are deemed to be admitted unless controverted by the opposing party's statement. The rule thus does not authorize the filing of a statement of additional undisputed facts by the non-moving party.

In this case, the court will follow Schroeder, Post, and Boule, and will disregard Plaintiff's additional facts unless it is clear from the parties' briefing that those facts are both material and undisputed.

B. Undisputed Facts.

On August 20, 2011, Plaintiff and Daren Hall, the son of Plaintiff's domestic partner,¹ were riding motorcycles southbound on Main Street in Sheldon, Vermont. Mr. Hall was traveling in the left-hand tire groove ² of the southbound lane, closest to the centerline, while Plaintiff was riding behind him, staggered, in the right-hand tire groove furthest away from the centerline. While travelling southbound, Mr. Hall and Plaintiff approached a curve in the roadway.³ Mr. Hall navigated the curve first and, after doing so, observed at least one oncoming vehicle driving northbound in the opposite lane of travel. He noted that the oncoming vehicle or vehicles appeared to be “crowding” the centerline without crossing into his lane of travel. He estimated that the vehicle or vehicles were “a foot if not closer” to the centerline. (Doc. 33–2 at 10–11.) Mr. Hall did not discern the color, make, model, or occupants of the vehicle or vehicles, however, he observed that the vehicles were not sports utility vehicles or vans. After the oncoming vehicle or vehicles passed him, Mr. Hall looked in his rearview mirror and observed that Plaintiff's motorcycle had left the roadway. He did not witness the accident and cannot testify as to what caused it.

The Vermont State Police (“VSP”) responded to the accident scene. VSP Trooper Cory Lozier completed an accident report and created a not-to-scale diagram indicating Plaintiff's crash location on the western shoulder of the road. Trooper Lozier did not take photographs or otherwise memorialize the scene. Based on his observations, Trooper Lozier estimated that Plaintiff's motorcycle travelled approximately seventy-five yards after exiting the road and before crashing. Trooper Lozier did not observe skid marks on the road or make an estimate as to the speed of the vehicles although he indicated that Plaintiff's motorcycle appeared to be travelling at a low rate of speed at the time of the crash. Plaintiff has no independent recall of the events leading up to and culminating in her injuries.

Plaintiff disclosed Robert Duhaime, a retired VSP Detective Sergeant, as an expert in accident reconstruction. Mr. Duhaime prepared a two-page “Expert Accident Reconstruction Opinion” (the “Expert Report”) dated January 19, 2012. (Doc. 33–1.) In his Expert Report, Mr. Duhaime initially opined that “this motorcycle accident was caused by two unidentified speeding vehicles traveling left of center when meeting [Plaintiff's] motorcycle causing [her] to go off the road to avoid a collision.” Id. at 1–2. He noted that there was damage to the northbound lane of travel and he “found the timing sequence of events as experienced by the lead motorcyclist [Mr. Hall] to be correct.” Id. at 2. He opined that Plaintiff:

was confronted with a sudden dangerous situation of being in a left hand curve on the motorcycle and meeting vehicles traveling at a high rate of speed and the lead vehicle being partially on [Plaintiff's] side of the road causing [Plaintiff's motorcycle] to drive away from the danger of a head on collision, straighten the motorcycle, thus reducing the turning radius resulting in the motorcycle going off the road resulting in the accident and subsequent injuries.

(Doc. 33–1 at 2.) Mr. Duhaime bases his opinions on “my experience, training and education together with my inspection and evaluation of the accident scene, my review of the police reports and interviews with witnesses ... including [Mr.] Hall, the lead motorcyclist.” Id. at 1.

Although Plaintiff agreed that Mr. Duhaime's Expert Report was a “complete and accurate” disclosure of his expert opinion, it was later revealed that Mr. Duhaime was under the misimpression that the oncoming vehicle or vehicles had crossed into Plaintiffs line of travel while passing Mr. Hall. When this misunderstandingwas corrected, Mr. Duhaime's opinion remained unchanged.

Mr. Duhaime testified that determining speed, distance, and time are three critical variables in accident reconstruction. In this case, he was unable to make exact measurements or establish timing sequences because the investigating VSP troopers failed to document or otherwise memorialize the accident scene. He therefore did not measure any distances at the scene so as to correlate them with the supposed positions of the relevant vehicles traveling at various speeds. Mr. Duhaime has not examined Plaintiff's motorcycle or any photographs of it. He concedes that Plaintiff “technically” violated 23 V.S.A. § 1081⁴ at the time of the accident by driving off the roadway.

Mr. Duhaime's conclusions regarding the specific facts of the incident are derived from Mr. Hall. As Mr. Duhaime explained, “[w]e don't know what happened at that accident other than what that witness [Mr. Hall] saw when he was riding and facing those cars” (Doc. 32 at ¶ 19) and “I don't know what startled [Plaintiff], but something startled her about those vehicles, and she lost control.” (Doc. 33–6 at 48.)

Plaintiff is covered for bodily injury damages caused by an “uninsured motorist” by Progressive, with excess coverage from Concord. Plaintiff's insurance policy with Progressive provides coverage as follows:

INSURING AGREEMENT—UNINSURED/UNDERINSURED MOTORIST BODILY INJURY COVERAGE

If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury:

1. sustained by an insured person;

2....