United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, CHIEF UNITED STATES DISTRICT JUDGE
Fire and Casualty Insurance Company (the
“Defendant”) filed a Motion for Partial Summary
Judgment and Supporting Brief. Doc. No. 48. Plaintiffs Sean
and Crystal Smith (the “Plaintiffs”) have filed a
Response [Doc. No. 53] to which Defendant has replied [Doc.
No. 57]. Defendant filed a Motion to Strike Exhibit 2 from
Plaintiffs’ Response. Doc. No. 61. Pursuant to Rule 56,
the Motion to Strike Exhibit 2, along with all accompanying
briefs, will be considered as an objection to Exhibit 2 in
Plaintiffs’ Response [Doc. No. 53] and addressed as
part of the Court’s ruling on summary judgment.
case arises from an insurance claim for damages to
Plaintiffs’ home. Plaintiffs’ First Amended
Complaint, Doc. No. 19 at 1, ¶ 2. Plaintiffs allege the
damage was caused by an earthquake on November 7, 2016.
Id. at 1, ¶ 3. Defendant denied
Plaintiffs’ insurance claim, concluding that the damage
was instead caused by poor construction and soil changes.
Response to Motion to Strike Exhibit 2, Doc. No. 61 at 3.
Plaintiffs brought this action alleging breach of contract
and bad faith. See First Amended Complaint.
argues in its motion that it is entitled to judgment on
Plaintiffs’ bad faith claim and request for punitive
damages, as Plaintiffs present no genuine dispute as to any
material fact. Id. at 1. Plaintiffs respond that
their bad faith claim is not barred. Response at 5 n.1.
Plaintiffs state that Defendant failed to inspect the damage
Plaintiffs complained of from the outset. Id. at 5.
Plaintiffs further state that there are disputed facts as to
whether Defendant disregarded guidance from the Oklahoma
Insurance Department and whether Defendant has a practice of
hiring engineers to aid in the underpayment of claims.
Id. at 9, 12. As part of their Response, Plaintiffs
included Exhibit 2, a photograph depicting structural damage
to their home. Plaintiffs’ Response and Objection to
Defendant’s Motion for Partial Summary Judgment. Doc.
No. 53, Ex-2. Defendant subsequently filed a Motion to Strike
Exhibit 2. Doc. No. 59. The Court, in a previous Order [Doc.
No. 67], denied that Motion and, pursuant to Rule 56, agreed
to consider all filings related to the Motion to Strike as an
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Universal Underwriters Ins. Co. v. Winton,
818 F.3d 1103, 1105 (10th Cir. 2016). “An issue is
‘genuine’ if there is sufficient evidence on each
side so that a rational trier of fact could resolve the issue
either way, ” and “[a]n issue of fact is
‘material’ if under the substantive law it is
essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
Court’s inquiry must be whether the evidence, when
viewed “through the prism of the substantive
evidentiary burden, ” Anderson, 477 U.S. at
254, “presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at
251–52. Although the Court views all facts in the light
most favorable to the nonmoving party at the summary judgment
stage, “there is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.” Id. at
Court will first address Defendant’s objection to
Exhibit 2 in Plaintiffs’ Response. Next the Court will
turn to Defendant’s Partial Motion for Summary
The Court will consider Exhibit 2 in ruling on summary
judgment, over Defendant’s objection.
filed a Motion to Strike Exhibit 2 from Plaintiffs’
Response to CSAA’s Motion for Partial Summary Judgment.
Doc. No. 59. The Court now considers the substance of that
Motion, Plaintiffs’ Response to the Motion to Strike
[Doc. No. 61], and Defendant’s Reply [Doc. No. 63].
2 includes a photograph depicting what Plaintiffs assert are
broken floor joists located beneath Plaintiffs’ living
room. Response to Motion to Strike at 4. Defendant asserts
that Plaintiffs failed to timely produce Exhibit 2, rather
presenting it for the first time to Defendant’s expert
during a deposition. Doc. No. 59 at 1–3. Plaintiffs
respond that Defendant cannot both have conducted a thorough
inspection of their home and be unfairly surprised by Exhibit
2. Any surprise, Plaintiffs respond, is the direct result of
tactical decisions made by Defendant. Response to Motion to
Strike at 5. Next Defendant asserts that Plaintiffs failed to
lay a proper foundation for Exhibit 2, omitting from their
brief any mention of who took the photograph, when it was
taken, or where it was taken. Motion to Strike at 1.
Plaintiffs note that the proper focus of the inquiry as to
the photograph’s foundation-at this stage in the
proceedings-is whether Exhibit 2 could eventually be reduced
to admissible evidence at trial. Response to Motion to Strike
at 13. The Court will consider these arguments in turn.
Plaintiffs’ untimely disclosure of Exhibit 2 was
first claims Plaintiffs’ failure to timely disclose the
photograph at issue should preclude Plaintiffs from now
introducing it as Exhibit 2. Motion to Strike at 4. On
February 16, 2018, Defendant issued a discovery request,
asking Plaintiffs to produce “all photographs or videos
that depict, to any degree, ” damage attributed to the
incident giving rise to the insurance claim. Id. at
1. Exhibit 2 was taken on September 10, 2018, by Sean Wiley
(“Wiley”), Plaintiffs’ rebuttal expert.
Response to Motion to Strike at 14. Plaintiffs’ deposed
Defendant’s expert witness David Battle
(“Battle”) on November 2, 2018. During the
deposition Plaintiffs showed Battle the picture now labeled
as Exhibit 2. Motion to Strike at 3. Exhibit 2 was
subsequently produced to Defendant, less than a month after
Exhibit 2 was taken, but after Battle was deposed. Id
. According to the Scheduling Order, discovery was to be
completed by January 8, 2019. Doc. No. 29 at 2.
disclosures under Fed. R. Civ. P 26 are a one-way street: the
producing party has the burden to timely supplement
disclosures, once the party is aware that the initial
responses or disclosures are materially incomplete.
See Fed. R. Civ. P. 26(e)(1)(A). The receiving party
is left with little recourse to challenge the sufficiency of
a supplemental disclosure and is often limited to challenging
supplemental filings as untimely. See Rule 37(c)(1).
determination of whether a [Rule 26] violation is justified
or harmless is entrusted to the broad discretion of the
district court.” Woodworker’s Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Cir. 1999). The Court “need not make explicit findings
concerning the existence of a substantial justification or
the harmlessness of a failure to disclose.”
Id. The following factors, however, “should
guide its discretion: (1) the prejudice or surprise to the
party against whom the testimony is offered; (2) the ability
of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and, (4)
the moving party’s bad faith or willfulness.”
use of Exhibit 2 during Battle’s deposition-before
Plaintiffs produced the photograph to Defendant-is troubling.
The Court agrees with Plaintiffs that producing a photograph
a month after it was taken by an expert, who subsequently had
to prepare a report, is not, per se, an unreasonable delay.
The photograph was produced before the discovery deadline.
But the fact that Plaintiffs were sufficiently prepared to
present the photograph to Battle during his deposition,
before disclosing the ...