Evidence evidently a problem for Nationwide and State Farm

The last motions filed in both Politz v Nationwide and O’Keefe v State Farm deal with evidence the Plantiff in each case is either seeking or planning to use.

In the Politz case, Nationwide filed a Motion for Clarification Regarding the Court’s Order on Motion in Limine No. 2 to Exclude Any and All Testimony, Evidence, and Argument Regarding Insurance Claims Other than Plaintiff’s Claims Against Nationwide.

On May 18, 2009, the Court entered an Order granting Nationwide’s Motion. Specifically, the Court held “[t]hat Nationwide’s motion in limine [279] asking the Court to exclude evidence of other claims against Nationwide is GRANTED subject to a limited exception for claims concerning insured property in close physical proximity to the plaintiff’s residence.”

Politz slab of neighbor Faulk
Photograph of Faulk property taken by adjuster Darrel Ryan. The Politz property was located approximately 20 yards behind the Faulk property.

Nationwide respectfully requests a clarification of the Court’s May 18, 2009 Order with regard to the Faulk insurance claims. Although Nationwide submits that the physical conditions of the Faulk property may be relevant to the claims presented in this case, any testimony, evidence or argument regarding the adjustment of Ms. Faulk’s insurance claims — claims that were handled by insurance companies other than Nationwide — is wholly irrelevant to whether Nationwide properly adjusted Mrs. Politz’s claim for insurance.

Nationwide acknowledges Mrs. Politz admits that she “does not contend that the policy limits of Mrs. Faulk’s insurance policies have any relevance to the claims by Plaintiff in this case,” but that she “only seeks to introduce factual information concerning the area of her dwelling that was damaged by Hurricane Katrina.

So, what is Nationwide’s Motion based on given Mrs. Politz’s admitted use is consistent with Nationwide’s submission that the physical conditions of the Faulk property may be relevant to the claims presented in this case?

With respect to Ms. Faulk, this Court should limit her testimony to the damage she saw on her property after Hurricane Katrina, and exclude any testimony regarding any claim for insurance she filed for that damage.

However, as Mrs. Faulk’s deposition indicates, limiting her testimony would exclude a very valuable piece of information that supports Mrs. Politz’s position:

Q. Why would they choose you to be a witness?
A. Oh, I’m a neighbor…
Q. How close do you live to the Politzes?
A. Out my back door, it would be maybe 20 yards at a diagonal to her back door.
Q. Okay. Are you north or south of the Politzes’ property?
A. South.
Q. Okay. So you’re closer toward the beach area?
A. Yes, yes…

Q. Okay. But being in Birmingham, obviously you didn’t witness what happened
A.Right…                                                                                                                                                            Q. — during the storm to the Politzes’  property, correct?
A. Oh, right, yes…

Q. Okay. Tell me what you found when — when you came back.
A. It was very hard to get to it, and it was  gone.
Q. All right.
A. It was just —
Q. So your home was a slab?
A. Yes.
Q. What about the Politzes’ home, did you have —
A. Slab, too.
Q. Okay. So you saw where their home  previously stood?
Q. Did you observe any other homes that  surrounded you?
A. Oh, they were all gone.
Q. They were all slabs?
A. Oh, yes.
Q. Okay. Everything that you could physically see, every home was a slab?
A. Yeah.

The testimony of Chance Brandt is needed to fully appreciate the value of knowing the Politz home and others surrounding the Faulk property “were all gonebut Nationwide wants that testimony excluded in total:

Specifically, this Court should exclude any testimony by Chance Brandt and Darrel Ryan because neither adjuster could take the stand and describe the conditions of the Faulk property without adequately explaining their respective roles as insurance adjusters.

As such, their testimony is inherently prejudicial because it cannot be limited without “mention or … reference to conduct relating to [insurance] claims submitted by [Ms. Faulk].”  Indeed, without explaining Messrs. Brandt’s and Ryan’s roles as insurance adjusters, Plaintiff can provide no foundation for their testimony about their observations of the Faulk and/or Politz property(ies).

The first paragraph of his report reveals the reason for Nationwide’s objection:

On 10/17105, I met With the insured at the risk location. The risk was a two story, frame dwelling with a wood shake roof.  The dwelling  was built in 1950 and  is located approximately 1000 feet from the Gulf of Mexico. There was minor flooding observed in the area. The dwelling was built on a built up pad and the slab is two foot. The damage above  the flood line is obviously wind damage due to the comparable damage to area dwellings and the damage to large treetop branches shows the occurrence of tornadic activity as reported by the three eye witness’s letters included...

Nationwide ends the Motion with support for the Company’s position that “[s]uch evidence may pose the danger of confusion of the issues, which may tend to mislead the jury and would otherwise cause delay”.

Really! How could anything possibly be more confusing to a jury than Nationwide’s refusal to pay the Politz claim?

State Farm raises an entirely different evidence issue in O’Keefe v State Farm with Defendant’s Emergency Motion to Quash Plaintiffs’ Excess Discovery Requests.

On March 4, 2009, United States Magistrate Judge Linda R. Anderson signed a Case Management Order for this cause limiting the total number of interrogatories and requests for production to 30 each. See Case Management Order.

Thereafter, on May 1, 2009, Plaintiffs served 30 additional interrogatories and 28 additional requests for production on State Farm, and an additional 24 interrogatories and 17 requests for production on Eleuterius.  Thus, Plaintiffs have served a total of 57 interrogatories and 48 requests for production on State Farm and 40 interrogatories and 33 requests for production on Eleuterius during the prosecution of this dispute.

Plaintiffs’ latest written discovery requests propounded on Defendants violate the limits imposed by the Federal Rules of Civil Procedure and this Court’s case management order to the extent they would require Defendants to respond to more than a total of 30 interrogatories and 30 requests for production each. Moreover, Plaintiffs’ counsel claims that the discovery propounded after removal covers “virtually the same subject matter as discovery requests served in the State Court proceeding.” By their own admission, then, at least some of Plaintiffs’ additional discovery requests are cumulative, duplicative and, consequently,wasteful.

Why file a Motion when all that was needed was a cut/paste?  I don’t have an answer to that question or this one either. When a case is moved from State to Federal court, doesn’t everything start over?.

Decisions on both Motions should make for interesting reading.

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