Turner v. Metro. Prop. & Cas. Ins. Co.

Decision Date03 May 2022
Docket NumberCase No. 18-CV-653-JFH-JFJ
Citation601 F.Supp.3d 1066
Parties Michael TURNER, Plaintiff, v. METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, d/b/a MetroLife Auto & Home Business Insurance, a foreign for-profit corporation insurance; Vericlaim, Inc., a foreign for-profit corporation; John M. Brown Insurance Incorporated, d/b/a Farmer Brown Insurance Agency, a foreign for-profit corporation, Defendants.
CourtU.S. District Court — Northern District of Oklahoma

Donald Eugene Smolen, II, Dustin Joseph Vanderhoof, John William Warren, Laura L. Hamilton, Lawrence Richard Murphy, Jr., Smolen Law, PLLC, Tulsa, OK, for Plaintiff.

Aimee Lynn Majoue, Alison M. Howard, Kevin Dell Gordon, Crowe & Dunlevy, Oklahoma City, OK, for Defendant Metropolitan Property & Casualty Insurance Company.

Bryan N.B. King, Matthew A. Dunn, Fellers Snider Blankenship Bailey & Tippens, Oklahoma City, OK, Taylor Kaye Weder, Hartzog Conger Cason, Oklahoma City, OK, for Defendants Vericlaim, Inc.

John Douglas Stiner, Stiner Law Firm PLLC, Oklahoma City, OK, for Defendant John M. Brown Insurance Incorporated.



Before the Court is Plaintiff Michael Turner's Motion to Strike Exhibits 2, 3, 4, and 15-211 to Defendant John M. Brown Insurance Incorporated's Motion for Summary Judgment and Exhibit 3 to Defendant Metropolitan Property & Casualty Insurance Company's Motion for Summary Judgment ("Motion to Strike") (ECF No. 103), which was referred to the undersigned by United States District Judge John F. Heil, III (ECF No. 181). Defendant John M. Brown Insurance, Incorporated d/b/a Farmer Brown Insurance Agency, Inc. ("Farmer Brown") filed a response (ECF No. 127), and Defendant Metropolitan Property and Casualty Insurance Company ("Metlife") filed a separate response (ECF No. 130).2 Plaintiff Michael Turner ("Turner") filed a combined reply (ECF No. 150), and the issues are ripe for determination. For the reasons explained below, the Motion to Strike (ECF No. 103) is denied.

I. Background

Turner purchased an insurance policy from Metlife covering a commercial building. The policy was negotiated on behalf of Metlife by Maria Dossa ("Dossa"), an employee of Farmer Brown. After a fire destroyed the building, Turner sought insurance benefits under the policy. Metlife paid $100,000.00 in benefits, which Turner claims did not cover the replacement cost of the building.

In this lawsuit, Turner asserts a claim against Farmer Brown for negligent procurement of an insurance policy, alleging that Farmer Brown breached a duty of care by "advising [Turner] he had purchased a policy of insurance that contained replacement cost coverage without obtaining such a policy or confirming that the policy did, in fact, contain replacement cost coverage, and instead, mistakenly acquiring for [Turner] a policy that provided for the actual cash value of any loss." ECF No. 2 at 10. Turner asserts claims against Metlife for reformation of the policy, breach of contract, and breach of the duty of good faith and fair dealing.

On July 16, 2019, Turner requested in discovery all communications between Farmer Brown and Turner. From October 6, 2020, to October 23, 2020, approximately one month before the discovery cutoff of November 9, 2020, Farmer Brown produced a total of twenty-four audio recordings of phone calls. Turner moves to strike transcripts of these recordings from the summary judgment record – specifically, those attached by Farmer Brown to its motion as Exhibits 2, 3, 4, 14, 15, 16, 17, 18, 19, and 20, see ECF No. 96, and those attached by Metlife to its motion as Exhibit 3, see ECF No. 97 (collectively, the "Recordings"). The Recordings purport to be recordings of phone conversations between Turner and Dossa, captured by Farmer Brown's recording system.

In its motion for summary judgment, Farmer Brown relied on six of the Recordings in support of its Statement of Undisputed Material Fact #8. ECF No. 96 at 15 (emphasis added). In its motion for summary judgment, Metlife relied on the Recordings in support of Statements of Undisputed Fact #20-23. ECF No. 97 at 12-13. In his responses to the motions for summary judgment, Turner objects to consideration of the Recordings. See ECF No. 104 at 8; ECF No. 105 at 8. In addition to objecting within the summary judgment briefing, Turner filed the separate Motion to Strike.3

II. Motion to Strike

The Motion to Strike is governed by Federal Rule of Civil Procedure 56(c)(2), which provides that a "party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." The objection "functions much as an objection at trial, adjusted for the pretrial setting." Fed. R. Civ. P. 56(c)(2) cmt. 2010 amendment. "The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." Id.

"At the summary judgment stage, evidence need not be submitted in a form that would be admissible at trial." Argo v. Blue Cross and Blue Shield of Kans., Inc. , 452 F.3d 1193, 1199 (10th Cir. 2006) (cleaned up). "Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form." Id. While the form need not be admissible, the content or substance of the evidence must be admissible. Id.

Turner objects to the admissibility of the content and substance of the Recordings. Turner objects to consideration of the Recordings on three grounds: (1) the Recordings have not been authenticated; (2) the statements on the Recordings are inadmissible hearsay; and (3) the Recordings were produced late in discovery, resulting in unfair prejudice.4

A. Authentication

Documentary evidence submitted in support of summary judgment must either be properly authenticated or self-authenticating under the Federal Rules of Evidence. In re Wickens , 416 B.R. 775, 776–77 (Bankr. D.N.M. 2009). See also Harlan v. United Fire & Cas. Co. , 208 F. Supp. 3d 1168, 1176 (D. Kan. 2016) ("[A]uthentication is an essential prerequisite for admitting a document into evidence at trial and for a court to consider it at summary judgment ...."); New Mexico Consol. Constr., LLC v. City Council of the City of Santa Fe , 97 F. Supp. 3d 1287, 1294 n.6 (D.N.M. 2015) (declining to use unauthenticated document in ruling on summary judgment but noting that proponent could still seek to authenticate document at trial); Riley v. Town of Bethlehem , 44 F. Supp. 2d 451, 460 (N.D.N.Y. 1999) ("A motion to strike will [ ] be granted when it challenges documentary evidence that was submitted in support of or in opposition to a summary judgment motion, but which has not been properly authenticated."). The authentication requirement at the summary judgment stage extends to audio recordings. Fisher v. Univ. of Kan. Facilities Operations , No. 10-4102-DJW, 2011 WL 5868349, at *13 (D. Kan. Nov. 22, 2011) ("Courts considering audio recorded conversations in resolving a motion for summary judgment require that the party offering the recordings provide a foundation or properly authenticate them.").

Defendants argue the Recordings are self-authenticating records of a regularly conducted business activity. See Fed. R. Evid. 902(11). Alternatively, Defendants argue that Farmer Brown has produced sufficient evidence "to support a finding that the [Recordings are] what the proponent claims [they are]." Fed. R. Evid. 901(a). Defendants contend they have met this burden, based on the methods set forth in Rule 901(b)(6) (authentication of telephone conversation based on call being placed to particular number and other circumstances) and/or Rule 901(b)(4) (authentication of item based on its distinctive characteristics and other circumstances).

1. Rule 902(11)

To qualify for this provision, a record must meet the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified witness. These requirements are:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity[.]

Fed. R. Evid. 803(6)(A)-(C). "A qualified witness is one who can explain the record keeping system of the organization and vouch that the requirements of Rule 803(6) are met." United States v. Brown , 553 F.3d 768, 792 (5th Cir. 2008).

John Brown ("Brown"), President of Farmer Brown, submitted an affidavit in support of summary judgment stating:

Using the telephone numbers associated with plaintiff Michael Turner, (918) 314-9663, (918) 219-4340 and (918) 541-5367, I performed a search on my company's online recording system (dyl.com) for calls between my company and these numbers and the recordings represent recordings of the calls between the plaintiff and Maria Dossa. They have not been altered or manipulated in any way. The transcriptions constitute complete and accurate recordings of the conversations and the underlying recordings, which have been produced in discovery to all parties, are complete. These recordings were made automatically by the recording system at the time of the calls identified, based on information transmitted by individuals with knowledge of the matters discussed – Michael Turner and Maria Dossa. These recordings were kept in the regular course of my company's business activity and it was a regular practice to make such recordings.

ECF No. 96-23 at para 3-4. The affidavit serves as the relevant certification under Rule 902(11).5 In his deposition, which was provided as a Rule 30(b)(6) corporate representative of Farmer Brown, Brown answered his lawyer's questions about the recording system:

Q. You discussed earlier that all

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