Sellers v. Nationwide Mutual Fire Insurance Company et al

Filing 47

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/6/18. (SAC )

FILED
2018 Mar-06 PM 02:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RONALD SELLERS, as assignee
of GARY GARDNER & GARY
GARDNER BUILDERS, INC.
Plaintiff,
v.
NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY and
STEVE DURHAM d/b/a S.
DURHAM CONTRACTING,
Defendants.

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CIVIL ACTION NO.:
2:15-CV-957-KOB

MEMORANDUM OPINION
Before the court is Defendant Nationwide’s motion to strike (doc. 43) certain exhibits
attached to Plaintiff Sellers’s Response Brief regarding legal issues identified by the court (doc.
41). The exhibits Nationwide seeks to strike include deposition testimony of Richard
Laframbroise, Joel Wehrman, James Boohaker, Steve Durham, and Gary Gardner (docs. 42-1, 2,
6, 8, 10); inspection reports of Richard Laframboise (doc. 42-5) and Joel Wehrman (doc. 42-7);
an estimate report of James Boohaker (doc. 42-9); and affidavits of Kimberly Sellers, Richard
Laframboise, and Ronald Sellers (docs. 42-4, 11, 3). Nationwide objects to their submission and
moves the court to strike the exhibits. (Doc. 43). The court now addresses the evidence and
Nationwide’s objections.
1. Deposition Testimony
Nationwide argues the court should strike the depositions of Richard Laframboise, Joel
Wehrman, James Boohaker, Steve Durham, and Gary Gardner because they were all taken in a

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previous state court action when Nationwide was not present and had no opportunity to crossexamine the deponents. (Doc. 43 at 1-2).
Rule 32(a) of the Federal Rules of Civil Procedure provides that “all or part of a
deposition may be used against a party” if “(A) the party was present or represented at the taking
of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible
under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use
is allowed by Rule 32(a)(2) through (8).” Federal Rule of Evidence 804(b)(1) adds that
deposition testimony from an earlier action, whether or not the parties are the same, is allowed if
the party against whom the testimony is offered, “had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.” The Eleventh Circuit has
interpreted these rules together to permit the use of deposition testimony taken in a different
proceeding as long as the party against whom the testimony is offered “was provided with an
opportunity to examine the deponent.” Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738,
750–751 (11th Cir. 2002).
Here, the transcripts of depositions to which Nationwide objects were taken in the state
civil case entitled Sellers v. Gardner Builders, Inc., et al., No. CV 2008-0910, in the Circuit
Court of Jefferson County, Alabama. Although Nationwide was defending Mr. Durham in that
case, it was doing so under a reservation of rights. See (Case No. 2:11-cv-2581, doc. 1 at 4). In
Alabama, an insurance company defending an insured under a reservation of rights owes an
“enhanced obligation of good faith towards its insured in conducting such a defense.” L & S
Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298, 1303 (Ala. 1987). That
enhanced obligation requires the insurer to retain defense counsel for the insured who “must
understand that only the insured is the client,” and the insurance company “must refrain from

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engaging in any action which would demonstrate a greater concern for the insurer’s monetary
interest than for the insured’s financial risk.” Id. (quoting Tank v. State Farm Fire & Casualty
Co., 715 P. 2d 1133, 1137 (Wash. 1986)).
Nationwide’s duty to defend Mr. Durham in the previous state court proceeding would
have, presumably, given Nationwide notice of the depositions at issue. But its enhanced duty to
Mr. Durham prevented Nationwide from examining the deponents for its own interests regarding
coverage. Nationwide had a different motive from Mr. Durham, and questioning the deponents to
further its own interests would have violated its duty to provide Mr. Durham with a good faith
defense. Therefore, the court will strike the deposition transcripts of Richard Laframbroise, Joel
Wehrman, James Boohaker, Steve Durham, and Gary Gardner (docs. 42-1, 2, 6, 8, and 10)
because Nationwide lacked the opportunity to examine the deponents.
2. Reports of Mr. Laframboise, Wehrman, and Boohaker
Nationwide also objects to Mr. Sellers’s use of Mr. Boohaker’s estimate report for
repairing the home and Mr. Laframboise’s and Joel Wehrman’s inspection reports detailing their
analysis of the home’s defects and their potential causes. Nationwide argues the court should not
consider them on two grounds: (1) the reports do not qualify as admissible testimony under Fed.
R. Evid. 702 and 703; and (2) the reports are inadmissible because they are unsworn.
First, Nationwide argues the reports should be excluded because they fail to comply with
Rules 702 and 703 of the Federal Rules of Evidence. Nationwide contends Rule 702 only permits
the admission of expert “testimony, not opinions contained in documents prepared out of court.”
(Doc. 43 at 4). And, “[w]hile Rules 702 and 703 permit Plaintiff’s proffered expert to testify as
to his opinion in court and rely on inadmissible evidence, neither the written opinion of the

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expert, that is, the reports, nor the materials on which they relied are admissible under Rules 702
and 703.” (Id. at 5).
Nationwide is correct that expert reports are inadmissible at trial, and “[e]vidence
inadmissible at trial cannot be used to avoid summary judgment.” Corwin v. Walt Disney, Co.,
475 F.3d 1239, 1249 (11th Cir. 2007). But, Nationwide is mistaken regarding whether the court
may consider those reports before trial, such as while performing Rule 56 analysis. “When expert
reports are produced in discovery and represent anticipated trial testimony by experts, it is
appropriate for the court on motion for summary judgment to consider the reports in determining
the existence of genuine issues of material fact.” Wright & Miller, Federal Practice and
Procedure § 2724, n.6 (4th ed. 2017) (citing Unterberg v. Correctional Medical Systems, Inc.,
799 F.Supp. 490 (E.D. Pa. 1992)). See, e.g., Mueller v. Chugach Federal Solutions, Inc., No. 12S-00624-NE, 2014 WL 2891030, at *13 (N.D. Ala. June 25, 2014); In re ObTape
Transobturator Sling Products Liability Litigation, 711 F. Supp. 2d 1348, 1368 (M.D. Ga.
2010); Medtronic Xomed, Inc. v. Gyrus ENT LLC, 440 F. Supp. 2d 1300, 1310 n.6 (M.D. Fla.
2006).
Here, Mr. Laframboise and Mr. Wehrman inspected Mr. Sellers’s home to determine the
cause of the defects that the Sellerses had discovered. Their reports capture their findings and
opinions regarding the home’s condition and the steps required to repair the home. Because the
reports to which Nationwide objects are based on the personal knowledge of Mr. Laframboise
and Mr. Wehrman, as supported by their sworn affidavits attached to them, the reports contain
information that could easily be reduced to evidence admissible at trial; the two men could
simply take the stand and testify regarding the results of their inspections. Because the court
finds the contents of the reports are reducible to admissible form, the court will not strike Mr.

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Laframboise’s and Mr. Wehrman’s reports on the grounds that the reports themselves are
inadmissible.
Nationwide also argues the reports should be excluded because they were not signed
before a notary public, and are therefore unsworn testimony. However, Mr. Sellers attached Mr.
Laframboise’s and Mr. Wehrman’s sworn affidavits to their inspection reports. (Docs. 42-5; 427). The affidavits show the affiants’ testimony is based on personal knowledge and set out facts
that would be admissible in evidence, and show that the two men are competent to testify. See
Fed. R. Civ. P. 56(c)(4). The court finds that the accompanying affidavits are sufficient
attestation for these documents to be considered at this stage. See Southland Health Servs., Inc. v.
Bank of Vernon, 887 F. Supp. 2d 1158, 1169 (N.D. Ala. 2012) (District courts may consider
unworn opinions “if there are supporting affidavits, made on personal knowledge, that ‘show
affirmatively that the affiant is competent to testify to the matters related therein.’” (quoting Carr
v. Tatangelo, 338 F.3d 1259, 1273 (11th Cir. 2003)). Thus, the court will deny Nationwide’s
motion to strike Mr. Laframboise’s and Wehrman’s reports.
Mr. Boohaker’s unsworn repair estimate report (doc. 42-10), on the other hand, is not
supported by a sworn affidavit. Thus, the court will grant Nationwide’s motion to strike that
report.
3. Affidavits of Kimberly Sellers, Richard Laframboise, and Ronald
Sellers
Nationwide argues the court should strike Ms. Sellers’s affidavit because she is deceased
and Mr. Sellers’s affidavit because it contains inadmissible hearsay. However, an affiant’s death
alone does not necessarily render her sworn testimony inadmissible. See Fed. R. Evid. 804(a)(4).
And, a district court may consider out-of-court statements within affidavits and depositions so
long as they may be reduced to evidence in an admissible form at trial. See Macuba v. Deboer,
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