United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON TRAVELERS'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND RELATED MOTIONS [DKT. NOS. 27, 38, 40]
SARAH EVANS BARKER, District Judge.
This matter comes before us on Defendant Travelers Indemnity Company of America Motion for Partial Summary Judgment [Dkt. No. 27], which has been fully briefed. Travelers filed two additional motions related to its Motion for Partial Summary Judgment - a Motion for Leave to Supplement Record in Support of Travelers's Motion for Partial Summary Judgment [Dkt. No. 38] and a Motion to Strike Affidavit of Mathew Latham and Plaintiff's Brief in Opposition to Defendant's Motion for Partial Summary Judgment [Dkt. No. 40]. Having carefully considered the parties' submissions, we GRANT all of Travelers's Motions.
On August 23, 2013, Plaintiff Autumn Glen Homeowners Association, Inc. filed a Complaint against Defendant Travelers Insurance Company in Marion Superior Court, which was removed to this Court on October 4, 2013. [Dkt. No. 1.] Autumn Glen asserted three claims against Travelers - Breach of Fiduciary Duty; Breach of Contract; and Breach of the Common-Law Duty of Good Faith and Fair Dealing. [ Id. at Ex. A.] Travelers moves for partial summary judgment as to Autumn Glen's Counts I and III (breach of fiduciary duty and bad faith).
In its Response to Defendant's Motion for Partial Summary Judgment [Dkt. No. 36] and Brief in Opposition to Defendant's Motion for Partial Summary Judgment [Dkt. No. 37], Autumn Glen represented to the Court and Travelers that it would request leave to amend its Complaint and withdraw its claim for breach of fiduciary duty (Count I). Autumn Glen has not done so in the intervening six months. Travelers has met the legal standard and requirements for summary judgment on both Autumn Glen's claim for breach of fiduciary duty and bad faith. Because Autumn Glen has not withdrawn its claim for breach of fiduciary duty and has not defended the same, we grant summary judgment in Travelers's favor on both claims.
1. Travelers's Motion for Leave to Supplement Record in Support of Travelers's Motion for Partial Summary Judgment [Dkt. No. 38].
Travelers seeks to submit a May 3, 2012 "Roof Damage Analysis" created by SEA, Ltd. ("the Report") for consideration in its motion for partial summary judgment. Travelers referenced the Report in its Statement of Material Facts Not in Dispute, but did not include the Report itself in evidence. Autumn Glen Homeowners also referred to the Report in its Opposition Brief. Autumn Glen Homeowners did not object to Travelers's request to supplement the record with the Report.
We GRANT Travelers's Motion and Order that the May 3, 2012 "Roof Damage Analysis" created by SEA, Ltd. shall be included as part of the record related to Travelers's Motion for Partial Summary Judgment.
2. Travelers's Motion to Strike Affidavit of Mathew Latham and Plaintiffs' Brief in Opposition to Defendant's Motion for Partial Summary Judgment [Dkt. No. 40].
Travelers has requested that we strike the Affidavit of Mathew Latham because his Affidavit is not based on personal knowledge, contains legal conclusions and speculation, and contains inadmissible hearsay. [Dkt. No. 40.] Rule 56(c)(4) of the Federal Rules of Civil Procedure provides that "[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Self-serving statements and hearsay evidence are insufficient to defeat summary judgment. Evans v. Morgan, 119 Fed.Appx. 808, 810 (7th Cir. 2005). Travelers's motion is well-taken.
First and foremost, Mr. Latham's Affidavit does not explain who he is, his background or expertise, or the basis for any of the statements provided in his affidavit. Although Autumn Glen describes Mr. Latham as "Plaintiff's public adjuster, " that information is neither explained nor contained within Mr. Latham's Affidavit. Nor is the foundation of Mr. Latham's knowledge established.
Second, Mr. Latham purports to attest to discussions for which he was not present, procedures for which he has not established a foundation, and legal conclusions that he is not qualified to make. For example, the first paragraph of Mr. Latham's Affidavit purports to recount conversations related to hail damage to the roof coverings and soft metals around the complex and agreements related to the heaviest of the damage. [Latham Aff. at ¶ 1.] Mr. Latham states: " [a]s I understand, the adjuster stated...." [ Id. (emphasis added)] Mr. Latham's testimony as to conversations or inspections for which he was not present are inadmissible, and even so, he does not identify "the adjuster" allegedly making such statements.
Similarly, paragraph 3 of the Latham Affidavit purports to offer opinions from a time prior to Mr. Latham's engagement by Autumn Glen. By Mr. Latham's own admissions, he was not hired "to represent" Autumn Glen until after a settlement offer was made. [ Id. at ¶ 4.] Mr. Latham does not explain how or in what capacity he was "hired" by Autumn Glen or how he has personal knowledge of events prior to his involvement in the matter other than through inadmissible hearsay.
Mr. Latham generalizes adjuster authority limits and "theories" but does not establish that he has a foundation for these facts or that these facts are applicable to Travelers. For example, paragraph 2 of the Latham Affidavit does not specifically relate to Travelers. That paragraph states: [ Id. at ¶ 2.] The Affidavit contains no personal information about Mr. Latham's qualifications, education, or experiences related to adjuster spending limits. Mr. Latham is not qualified as an expert witness to offer testimony pursuant to Fed.R.Evid. 702 and, in any event, his testimony says nothing about Travelers's practices and policies.
The Latham Affidavit also contains inadmissible hearsay. For example, paragraph 5 of Mr. Latham's Affidavit states "[a]ccording to the shingle manufacturer, it was determined that the lighter damages on the northern portion of the community were significant enough to require replacement." [Latham Aff. at ¶ 5.] Because Autumn Glen seeks to use this statement to prove the truth of the matter asserted and the statements of the undisclosed "shingle manufacturer" do not fall within a hearsay exception, it is inadmissible.
Finally, Mr. Latham offers legal conclusions in his affidavit which are inadmissible. Mr. Latham states that adjusters have "the power to bind the insurer, " the "insurer or claimant has a right to assume the adjuster has the power to ascertain the amount of the loss and settle it, " and that "[t]he decision to pay for the hail damaged roof is clearly in breach of the insuring contract." [ Id. at ¶ 6.] These statements are inadmissible legal conclusions. See Martin v. Fort Wayne Police Dept., No. 1:11 CV 347, 2014 WL 1047801, at *9 (N.D. Ind. Mar. 18, 2014) ("Defendants are correct that the court may not consider legal conclusions in affidavits.") (citing Liberles v. Cook County, 709 F.2d 1122, 1129 (7th Cir. 1983)).
Autumn Glen does little to rehabilitate Mr. Latham's Affidavit other than to offer conclusory statements of its own. Autumn Glen argues that "[b]ased not only upon his age and state of mind, but also his role and background expertise within the roofing industry, Mr. Latham is more than capable of appreciating the circumstances set forth within his affidavit." [Dkt. No. 43 at 2.] "Although personal knowledge can include inferences and opinions of the affiant, such inferences must nonetheless be substantiated by specific facts." Fulmore v. Home Depot, U.S.A., Inc., 423 F.Supp.2d 861, 871 (S.D. Ind. 2006) (citing Drake v. Minnesota Mining & Manuf. Co., 134 F.3d 878, 887 (7th Cir. 1998)). Mr. Latham's affidavit includes no facts about his age, his role, his background, or his factual basis for any of the statements contained within his Affidavit - "appreciating the circumstances" is not the equivalent of personal knowledge.
Autumn Glen argues that "it is only logical that Mr. Latham could not offer information based upon the actions or communications made by Travelers or its representatives, if he had not heard, observed or otherwise possessed  first-hand knowledge of the same." [Dkt. No. 43 at 3.] We agree, which is why the Latham Affidavit is inadmissible. The Latham Affidavit does not establish Mr. Latham's hearing, observing, or possessing first-hand knowledge of actions or communications by Travelers and Autumn Glen has provided no evidence of the same. As a result, we GRANT Travelers's Motion to Strike. [Dkt. No. 40.] The Court will discount all arguments in Autumn Glen's Brief based on the Latham Affidavit accordingly.
Autumn Glen does not dispute any of the facts set forth in Travelers's Statement of Material Facts Not In Dispute [Dkt. No. 28 at 2-12]. [ See Dkt. No. 37 at 3.] The Southern District of Indiana Local Rule 56-1(b) requires that a response to a motion for summary judgment "must include a section labeled Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment." Autumn Glen did not include such a section in its brief. "The rule leaves no doubt as to the ramifications of failing to submit an appropriate factual statement in opposition to a motion for summary judgment: the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy....'" Waldridge v. American Hoechst Corp., 24 F.3d 918 (7th Cir. 1994). "A district court does not abuse its discretion when, in imposing a penalty for a litigant's non-compliance with Local Rule 56.1, the court chooses to ignore and not consider the additional facts that a litigant has proposed. Indeed, as we have stated on a number of occasions, [a] local rule of a federal district court is written by and for district judges to deal with the special problems of their court, and we are disposed therefore to give a district judge's interpretation of his court's local rules... considerable weight.'" Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 810-11 (7th Cir. 2005) (quoting Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.1995)). Even so, Autumn Glen relies solely upon the Affidavit of Mathew Latham, which we have now stricken. Consequently, because Autumn Glen did not follow the local rules and its sole affidavit has been stricken, we consider the facts presented in Travelers's Motion for Partial Summary Judgment to be admitted and undisputed for purposes of the motion. Fed.R.Civ.P. 56(e)(2).
From March 29, 2012 to March 29, 2013 Travelers had a commercial insurance policy in effect insuring the Autumn Glen Condominiums (the "Complex") (Condominium Pac (the "Policy")). [Dkt. No. 28-1.] The relevant insuring provision in the Policy provides that:
We will pay for direct physical loss or damage to Covered Property at the premises described in the Declarations caused by or ...