United States District Court, D. Nebraska
ERIC D. HAYES, Plaintiff.
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.
D. HAYES, Plaintiff. Attorneys for Plaintiff
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY,
Defendant, ENGLES, KETCHAM, OLSON & KEITH, P.C.
ORDER ON FINAL PRETRIAL CONFERENCE
pretrial conference was held on the 11th day of April 2017.
Appearing for the parties as counsel were:
Plaintiff: C.G. (Dooley) Jolly, #21275 Patrick J. Sullivan,
#20303 Adams & Sullivan, PC, LLO
Defendant: Michael L. Moran, #24042 Dan H. Ketcham, #18930
ENGLES, KETCHAM. OLSON & KEITH. P.C.
Exhibits. See attached Joint Exhibit List.
Upon express approval of the judge holding the pretrial
conference for good cause shown, the parties may be
authorized to defer listing of exhibits or objections until a
later date to be specified by the judge holding the pretrial
conference. The mere listing of an exhibit on an exhibit list
by a party does not mean it can be offered into evidence by
the adverse party without all necessary evidentiary
prerequisites being met.
Uncontroverted Facts.The parties have agreed that the
following may be accepted as established facts for purposes
of this case only:
1. Plaintiff. Eric D. Hayes ("Hayes") was at all
material times a resident of Springfield, Sarpy County,
2. Defendant. Metropolitan Property and Casualty Insurance
Company ("Met") is an insurance company licensed to
transact business in the State of Nebraska.
3. On or about October 25. 2007, a Homeowner Application for
a Homeowners Insurance Policy No. 8205839250 to insure
property located at 480 South 6 Street, Springfield, Nebraska
("insured property") was completed.
4. On January 24, 2013, the residence was destroyed by fire.
5. At the time of the fire the insured property was insured
under MetLife Auto &. Home Homeowners Insurance
Policy (Policy No. 8205839250) with policy period November
17, 2012 to November 17. 2013 ("the Policy*').
6. On August 5, 2014. Engles. on behalf of Met. sent to
Plaintiffs counsel a letter stating that Met was voiding the
Policy ab initio based on Plaintiffs material
misrepresentation in the insurance Application and that Met
would pay the Springfield State Bank the balance of the
mortgage note for the Residence.
7. Met issued a check to Plaintiff for $16,665.65
representing the return of all premiums paid with interest.
Such check was not accepted by Plaintiff.
8. Plaintiff filed this action on October 17, 2014.
Controverted and Unresolved Issues. The issues remaining to
be determined and unresolved matters for the court's
CONTROVERTED AND UNRESOLVED ISSUES
Whether Defendant engaged in bad faith investigation, and/or
handling of the Plaintiffs claim.
Whether Defendant had a reasonable basis to deny Plaintiff
his benefits under the policy.
amount of Plaintiffs recovery including pre-judgment
interests and attorney's fees.
CONTROVERTED AND UNRESOLVED ISSUES
Whether rescission of an insurance policy voids the
contractual relationship between an insurer and its insured.
Whether the covenants of good faith and fair dealing are
dependent on the existence of a contractual relationship
between and insurer and a claimant.
Whether a claim for bad faith against an insurance carrier
can exist in the absence of an insurance contract (i.e.
policy) between the insurer and the one claiming bad faith.
Whether Defendant's rescission of the policy precludes
Plaintiff from proving bad faith.
Court concludes that a claim for bad faith can exist in the
absence of a contractual relationship, the following ...