United States District Court, D. Nebraska
ERIC D. HAYES, Plaintiff,
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
E. STROM, Senior Judge United States District Court
matter is before the Court on two motions filed by the
defendant, Metropolitan Property & Casualty Insurance
Company (“Met” or “defendant”). Met
moves for summary judgment (Filing No. 103) and to
strike (Filing No. 113) selected portions of the
plaintiff, Eric D. Hayes' (“plaintiff” or
“Hayes”) index of evidence (Filing No.
110). The summary judgment matter has been fully
briefed by the parties. See Filing Nos. 104, 109,
and 115. Along with its motion to strike (Filing No.
113), defendant has submitted a brief in support
(Filing No. 114) and plaintiff has filed a brief in
opposition (Filing No. 116). Defendant has failed to
timely file a reply brief. See NECivR 7.1(c)
(providing reply briefs to be filed “within 7 days
after the opposing party files and serves the opposing
brief”). Accordingly, both these matters are ready for
disposition. After review of the motions, the parties'
briefs, and the applicable law, the Court finds as follows.
October 17, 2014, plaintiff filed a complaint in the District
Court of Sarpy County, Nebraska, alleging breach of contract
and bad faith denial/investigation (Filing No. 1-1).
On October 31, 2014, the action was removed from state court
under 28 U.S.C. §§ 1441 and 1446 (Filing No.
1). On December 24, 2014, plaintiff filed an amended
complaint (Filing No. 15). Plaintiff's claims
arise out of a homeowners insurance policy which was issued
to plaintiff by defendant. On January 24, 2013,
plaintiff's residence, located at 480 South 6th Street,
Springfield, Nebraska, was destroyed by a fire (Id.
at ¶ 6). At the time of the fire, plaintiff's
residence was insured under the policy issued by Met
(Id. at ¶ 7).
March 29, 2013, Met advised plaintiff that it would
investigate the claim arising out of the fire (Id.
at ¶ 11). Between March 29, 2013, until approximately
April 17, 2014, plaintiff claims that he fully complied with
defendant's investigation. See Filing No.
23 at 2, Filing No. 25. On August 5, 2014,
defendant sent what plaintiff terms as a “denial
letter” to plaintiff, cancelling the policy and
enclosing a check for all premiums paid with interest (Filing
No. 15 at ¶ 67). Defendant also advised
plaintiff that a check would be delivered to Springfield
State Bank for payment of the balance due on the mortgage
(Id. at ¶ 68). Defendant claims it had the
right to void the policy ab initio due to
plaintiff's “material misrepresentations” in
his policy application (Filing No. 47 at
¶¶ 33-35). Specifically, defendant contends
plaintiff's failure “to disclose the commercial use
of the residence” (Id. at ¶ 33), and the
fact that plaintiff “was renting out the [r]esidence to
tenants, ” (Filing No. 104 at 4) allowed for a
proper rescission and avoidance of the policy.
February 20, 2015, the Court granted in part, and denied in
part, defendant's motion to dismiss (Filing No.
27). Applying Neb. Rev. Stat. §§ 44-357
and 44-501 “and Chapter 44 of the Nebraska Revised
Statutes as a whole, ” the Court concluded that
plaintiff's breach of contract claim was time barred
under a twelve-month limitation period (Id. at 5-7).
However, the Court found a twelve-month limitation period
inapplicable to plaintiff's bad faith tort claim
(Id. at 7). Thus, the Court granted defendant's
motion to dismiss with respect to plaintiff's breach of
contract claim but denied the motion with respect to
plaintiff's bad faith claim (Id. at 7-8).
March 2, 2015, plaintiff filed a notice of appeal (Filing No.
28), a motion to stay the proceedings pending appeal
(Filing No. 29), and a motion to extend time to file
his interlocutory appeal (Filing No. 30). The
following day, on March 3, 2015, the Court granted
plaintiff's motion to stay the proceedings pending his
interlocutory appeal but denied plaintiff's motion to
extend time in which to file his appeal (Filing No.
31). On April 21, 2015, the United States Court of
Appeals for the Eighth Circuit dismissed plaintiff's
appeal for lack of jurisdiction (Filing No. 44). Two
days later, on April 23, 2015, defendant filed a motion to
vacate the Court's stay (Filing No. 45). The
Court granted defendant's motion to vacate the stay the
following day (Filing No. 46).
filed its answer on April 27, 2015 (Filing No. 47).
On May 15, 2015, defendant filed a motion for judgment on the
pleadings (Filing No. 49), and plaintiff filed a
motion to stay the proceedings pending a request for
permission to appeal (Filing No. 51).
Plaintiff's second motion to stay alleged that the Eighth
Circuit's dismissal for lack of jurisdiction “was
based upon the [p]laintiff appealing the [February 20, 2015]
Memorandum and Order without any specific requisite finding
[from this Court] that the matter could be appealed.”
(Filing No. 52 at 1). The plaintiff thus sought the
Court's “permission to appeal to the Eighth Circuit
Court of Appeals or, in the alternative, for the Court to
amend its [February 20, 2015] Memorandum and Order . . . to
include the required permission or statement allowing the
appeal . . . .” (Id. at 2).
2, 2015, the Court denied both plaintiff's motion to stay
and plaintiff's motion for permission to appeal or, in
the alternative, for entry of an amended order granting
permission to appeal (Filing No. 56). The Court
specifically stated that “the Eighth Circuit notified
the plaintiff on two occasions that the plaintiff needed to
request permission to appeal from the district court . . .
plaintiff failed to file a request for permission to appeal.
As a result, the Eighth Circuit dismissed the plaintiff's
appeal for lack of jurisdiction.” (Id. at 2)
(internal cites omitted).
13, 2015, the Court denied defendant's motion for
judgment on the pleadings (Filing No. 57). On
October 27, 2016, defendant filed a motion seeking an order
to exclude plaintiff's expert's opinions and
testimony under Fed.R.Evid. 702 and Daubert (Filing
No. 91). On December 16, 2016, the Court denied,
without prejudice, defendant's motion in limine (Filing
January 20, 2017, defendant moved for summary judgment
(Filing No. 103). The defendant asks this Court to
enter summary judgment on plaintiff's remaining bad faith
claim arguing that “[p]laintiff has failed to offer any
genuine evidence to overcome Met's showing that the
[p]olicy was voided ab initio and was not
cancelled.” (Filing No. 115 at 9). Therefore,
defendant contends that “the undisputed material facts
conclusively establish [that] the [p]olicy was voided from
its inception [and therefore] no duty of good faith arose as
between the parties.” (Id.).
March 8, 2017, defendant moved to strike portions of
plaintiff's index of evidence in support of his
opposition to summary judgment (Filing No. 110).
(Filing No. 113). Defendant requests that
“paragraphs 2 and 3 of the Jolly Affidavit, along with
Exhibit “B” thereto” be stricken. (Filing
No. 114 at 3). Defendant argues paragraph 2 and
Exhibit “B” are inadmissible under Rule 408 of
the Federal Rules of Evidence (Id. at 2). Defendant
also contends that paragraph 3 “contains an improperly
supported assertion of fact concerning Exhibit ‘C'
. . . .” (Id.).
judgment is only proper when the Court determines the
evidence “show[s] that there is no genuine dispute as
to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
Semple v. Federal Exp. Corp., 566 F.3d 788, 791 (8th
Cir. 2009) (quoting Fed.R.Civ.P. 56(c)). The evidence must be
viewed in the light most favorable to the nonmoving party,
giving the nonmoving party the benefit of all reasonable
inferences. Kenney v. Swift Transp., Inc., 347 F.3d
1041, 1044 (8th Cir. 2003). At the summary judgment stage, it
is not the function of the Court to “weigh the evidence
and determine the ...