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Applied Underwriters Captive Risk Assurance Co., Inc. v. Beemac Driver Management, LLC

United States District Court, D. Nebraska

December 6, 2018

APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE COMPANY, INC., an Iowa Corporation, Plaintiff and Counterclaim defendant,
v.
BEEMAC DRIVER MANAGEMENT, LLC, a Pennsylvania Limited Liability Company, and DRIVERS MANAGEMENT SOLUTIONS, LLC a Pennsylvania Limited Liability Company, Defendants and Counterclaimants.

          MEMORANDUM AND ORDER

          John M. Gerrard Chief United States District Judge.

         The defendants entered into an agreement with the plaintiff for workers' compensation insurance coverage that included a "reinsurance participation agreement." Filing 1-1. The plaintiff alleges that the defendants breached the reinsurance participation agreement for their failure to pay an amount due and owing, as well as the defendants' failure to pay an early cancellation fee assessed as a consequence of the alleged breach. The defendants moved for summary judgment asserting that the plaintiff's response to two requests for admission preclude the plaintiff from proving the defendants' breach as a matter of law. Filing 48. In addition, the defendants moved to strike the opinion, testimony and affidavit of what the defendants assert is plaintiff's expert, claiming she was not timely disclosed. Filing 52.

         The Court concludes that there are genuine issues of material fact precluding summary judgment regarding calculation of the amount the plaintiff claims is due and owing. The Court also concludes that the plaintiff's witness is not testifying as an expert, but instead is the plaintiff's employee testifying based on her personal knowledge of the plaintiff's business practices.

         I. STANDARD OF REVIEW

         Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. SeeFed. R. Civ. P. 56(a).

         On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id.

         II. BACKGROUND

         On August 15, 2013, the parties entered into a reinsurance participation agreement in connection with the defendants' workers' compensation insurance coverage needs. Filing 1-1; filing 25 at 4-5. The agreement was for a three-year term that could be extended by the parties. Filing 1-1 at 4. In January 2015, the plaintiff sent an account statement to the defendants representing that the total due for its workers' compensation program, together with other charges, was $142, 797.91. Filing 1-1 at 14-15. As of February 10, 2015, the plaintiff had cancelled the defendants' insurance plan and early cancelation charges were incurred in the amount of $253, 287.00. Filing 1-1 at 12.

         III. DISCUSSION

         1. Defendants' Motion for Summary Judgment In their motion for summary judgment, the defendants dispute the amounts owed and how those amounts were calculated. The defendants assert that the plaintiff's unequivocal response to two requests for admission precludes proof of the amount the plaintiff claims is due. Filing 49 at 1. The requests are identical in substance, but specific as to each defendant:

REQUEST NO. 26: Admit that the $142, 897.91 you contend is past due under the [reinsurance participation agreement] was not calculated on the payroll of [defendant Beemac Driver Management, LLC].
RESPONSE: Admit.
REQUEST NO. 27: Admit that the $142, 897.91 you contend is past due under the [reinsurance participation agreement] was not calculated on the payroll of [defendant ...

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