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Hayes v. Metropolitan Property & Casualty Ins. Co.

United States District Court, D. Nebraska

March 30, 2017

ERIC D. HAYES, Plaintiff,


          LYLE E. STROM, Senior Judge United States District Court

         This 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.


         On 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).

         On 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.

         On 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).

         On 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).

         Defendant 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).

         On July 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).

         On July 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 No. 102).

         On 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.).

         On 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.).


         Summary 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 ...

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