Centrix Financial, LLC et al v. National Union Fire Insurance Company of Pittsburgh, PA et al

Filing 189

ORDER re: 161 Defendants' Objections to Plaintiffs' Counter Deposition Designations for Trial as to George Blume, Bronce Breazeale, Fred Dairman, and Carl Grant. By Judge Philip A. Brimmer on 6/8/15. (pabsec)

UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
COLORADO
By Judge Philip A. Brimmer
Civil Action 09-cv-1542-PAB-CBS
In re: CENTRIX FINANCIAL, LLC, et al.,
CENTRIX FINANCIAL LIQUIDATING
TRUST, and
JEFFREY A. WEINMAN in his capacity
as Trustee for the Centrix Financial
Liquidating Trust,
Plaintiffs,
v.
NATIONAL UNION FIRE
INSURANCE COMPANY OF
PITTSBURGH, PA, and AIG
DOMESTIC CLAIMS, INC.,
Defendants.
ORDER REGARDING DEFENDANTS’ OBJECTIONS TO PLAINTIFFS’
COUNTER DEPOSITION DESIGNATIONS FOR TRIAL AS TO GEORGE
BLUME, BRONCE BREAZEALE, FRED DAIRMAN, AND CARL GRANT
This matter comes before the Court on Defendants’ Objections to
Plaintiffs’ Counter Deposition Designations for Trial [Docket No. 161]. The
Court has reviewed the objections and rules as follows as to the
depositions of George Blume, Bronce Breazeale, Fred Dairman, and Carl
Grant:

1

DEPOSITION OF GEORGE BLUME - 4-16-2012
Item # Testimony

Objection

Ruling

60:24 to 62:21

Rule 602: Foundation, Lacks
Personal Knowledge; Rule 401:
Relevance

Sustained foundation

64:13-20

Rule 402: Relevance; Rule 403: Prejudice;
Rule 602: Lacks Personal Knowledge

Sustained –
foundation

64:21 to 66:2

Rule 402: Relevance; Rule 403: Prejudice

68:19-23

Rule 602: Lacks Personal Knowledge

81:10 to 82:22

Rule 402: Relevance; Rule 403: Prejudice;
Rule 602: Lacks Personal Knowledge

Sustained –
foundation
Sustained –
foundation
Sustained –
foundation

89:15 to 91:17

Rule 602: Foundation, Lacks
Personal Knowledge; Rule 402:
Relevance

Overruled

110:10-19

Rule 402: Relevance; Rule 403: Prejudice

Sustained foundation
Overruled

137:23 to 139:2 Rule 402: Relevance; Rule 403:
Prejudice, Confusion
141:7-10

Rule 602: Speculation, Lacks
Personal Knowledge

141:17 to
144:22

Rule 602: Foundation, Lacks Personal
Knowledge; Rule 402: Relevance; Rule
403: Prejudice, Confusion

149:1 to 151:4

157:12 to
161:12

Sustained

141:17-143:5 Sustained;
143:7-144:22Overruled
149:1-150:25 –
Rule 602: Foundation, Lacks Personal
Overruled;
Knowledge; Rule 402: Relevance; Rule
151:1-151:4 –
403: Prejudice, Confusion
Sustained.
Assumes facts
not in evidence.
Rule 402: Relevance; Rule 602: Foundation, Overruled
Lacks Personal Knowledge; Rule 403:
Prejudice, Confusion

2

161:18 to 162:9 Rule 402: Relevance; Rule 403:
Prejudice, Confusion

Overruled

162:22 to 165:8

Sustained

Rule 106: Completeness (need to add
165:9-19)

3

DEPOSITION OF BRONCE BREAZEALE - 1-10-2012
Item
#

Testimony

Objection

Ruling

All
Designations

Rule 602: Lacks Personal Knowledge,
Speculation; Rule 402: Relevance; Rule
403: Prejudice

As a general
objection to all of
his testimony,
overruled.

As a general matter, Mr. Breazeale was the
supervisor for Carl Grant, the AIG
employee who handled the underlying
fidelity bond claim. Evidence of claims
handling is irrelevant to the question of
coverage.
In addition, Mr. Breazeale lacks personal
knowledge of the claim or how it was
handled. See, e.g., the following excerpts
from Mr.
Breazeale’s deposition
57:9-20 and 72:19-24 -- Mr. Breazeale
testified that he had little or no recollection
of the Centrix fidelity bond claim.
76:5-12 -- Mr. Breazeale testified that he
had no recollection of seeing the proof of
loss.
121:10-14 -- Mr. Breazeale testified
that he does not recall any actions that
he took to investigate the claim.
21:4 to 23:2

Rule 402: Relevance; Rule 403:
Prejudice, Confusion (because the
questions relate to completely different
types of policies and a different job that
Mr. Breazeale began in April of 2009)

Sustained

34:11 to 35:15

Rule 402: Relevance (the witness’
settlement authority has no bearing on
the question of coverage in this case);
Rule 403: Prejudice; Rule 408:
Settlement Evidence Irrelevant

Sustained

4

Sustained

40:17-22

Rule 106: Completeness (need to
add the complete answer, which
includes 40:16)

56:5-8

Rule 402: Relevance; Rule 403: Prejudice, Sustained as to
56:5-56:20
Confusion (the question is vague and
unclear); Rule 106: Completeness (Plaintiffs
did not include the answer at 56:11, which is
required if the objection is not sustained)

56:22 to 57:2

Rule 402: Relevance; Rule 403: Prejudice,
Confusion; Rule 602: Foundation
(assumes facts not in evidence); Rule
106: Completeness (Plaintiffs have
omitted the answer at 57:5-6 which be
required in any event)

Sustained

60:5-19

Rule 602: Foundation (assumes facts
not in evidence); Rule 402: Relevance;
Rule 403: Prejudice, Confusion

Sustained –
foundation

69:5-18

Rule 106: Completeness (omitted the first
three lines of the question, need to add
69:1-4)

Overruled, but
sustained as to
foundation

74:5 to 75:14

Rule 402: Relevance; Rule 403: Prejudice,
Confusion (these questions and answers
bear no relationship to the coverage
question at issue in this case)

Sustained

77:18 to 78:22

Rule 402: Relevance (when an electronic Sustained
filing system went into place bears no
relationship to the coverage dispute at
issue in this case);
Rule 403: Prejudice, Confusion

79:8 to 80:6

Rule 402: Relevance (when an electronic Sustained
filing system went into place bears no
relationship to the coverage dispute at
issue in this case);
Rule 403: Prejudice, Confusion

5

85:10-17

Rule 402: Relevance; Rule 403:
Prejudice, Confusion (the witness
answers the question right after the
break and this exchange will needlessly
confuse the jury)

Sustained

86:2-9

Rule 402: Relevance; Rule 403:
Prejudice, Confusion (because the
question is rephrased immediately after
so this exchange is unnecessarily
confusing)

Overruled

87:22 to 89:13

Rule 402: Relevance; Rule 403: Prejudice,
Confusion (asking a witness about
properly redacted documents is
unnecessarily confusing and prejudicial)

Sustained

99:13-25

Rule 402: Relevance; Rule 403: Prejudice
(evidence pertaining to any reserve that
was set is irrelevant and certainly more
prejudicial and prone to jury confusion)

Sustained

103:15 to
104:24

Rule 402: Relevance; Rule 403: Prejudice
(questions regarding reserves that were
set are irrelevant and prejudicial)

Sustained

106:9-11

Rule 402: Relevance; Rule 403: Prejudice
(questions regarding reserves that were
set are irrelevant and prejudicial)

Sustained

108:19 to 110:9

Rule 402: Relevance; Rule 403: Prejudice,
Confusion (information and questions
regarding settlement authority is wholly
unrelated to the question of coverage in
this case); Rule 408: Settlement Authority

Sustained

115:23 to 117:9

Rule 402: Relevance; Rule 403: Prejudice
(the jury will be confused by references to
proper redactions and the question
pertaining to reserve information)

Sustained

121:20 to
122:11

Rule 602: Foundation, Lacks Personal
Knowledge (assumes facts not in
evidence); Rule 611(a): Misstates Prior
Testimony

Sustained

6

127:2-20

Rule 402: Relevance; Rule 403:
Prejudice, Confusion (the question is
vague and unclear and form objection is
preserved)

Sustained

129:7 to 131:7

Rule 402: Relevance; Rule 403:
Prejudice, Confusion; Rule 408:
Settlement, Reserve Authority
(information has no bearing on
coverage for the claim)

Sustained

133:20 to
134:22

Rule 602: Foundation; Rule 402:
Relevance: Rule 403: Prejudice,
Confusion

Sustained

134:23 to
136:20

Rule 602: Foundation; Rule 402:
Relevance: Rule 403: Prejudice,
Confusion

Overruled

140:7-23

Rule 402: Relevance; Rule 403: Prejudice,
Confusion (questioning regarding reserves
and redactions is unrelated to the
coverage question before the jury)

Sustained

141:9 to 143:4

Rule 602: Foundation (witness cannot
identify the document and has never
seen it before); Rule 402: Relevance;
Rule 403: Prejudice

Overruled

143:5-18

Rule 602: Foundation

Sustained

144:21 to 145:7

Rule 602: Foundation (calls for speculation) Sustained

DEPOSITION OF FRED DAIRMAN - 1-11-2012
Item Testimony
#
All
Designations

Objection

Ruling

Rule 402: Relevance; Rule 403: Prejudice, Generally, as to
this witness’s
Confusion; Rule 602: Foundation, Lacks
Personal Knowledge (on page 46:11-14, Mr. answers,
overruled.
Dairman testified that he did not have any
responsibility for issuing coverage opinions or
deciding on a coverage position)
7

44:5-25

Rule 402: Relevance; Rule 403: Prejudice

Sustained

45:22 to 47:4

Rule 106: Completeness (need to add
46:15-20; 47:5-9; 49:18-25; 50:1-2)

Overruled

51:9-13

Rule 106: Completeness (need to add
52:16-18; 52:23 to 53:13)

Overruled

57:22 to 59:22

Rule 106: Completeness (need to add
57:17-21)

Overruled

60:8 to 61:15

Rule 402: Relevance; Rule 403: Prejudice;
Rule 602: Foundation, Lacks Personal
Knowledge

Sustained

61:25 to 62:14

Rule 402: Relevance; Rule 403:
Prejudice, Confusion

Sustained

66:21 to 69:3

Rule 403: Relevance; Rule 602:
Foundation, Lacks Personal Knowledge

Overruled

73:3 to 75:2

Rule 602: Foundation; Rule 402: Relevance Sustained

84:24 to 89:8

Rule 602: Foundation; Rule 402:
Relevance; Rule 403: Prejudice,
Confusion

Overruled

Generally for
completeness

Rule 106: Completeness (need to add
93:2-6 to clarify that witness did not have
any other documents that were not
produced)

Overruled

DEPOSITION OF CARL GRANT - 1-5-2012
Item # Testimony

Objection

Ruling

53:14 to 54:21

Rule 1002: Best Evidence

Overruled

55:5 to 10

Rule 1002: Best Evidence

Overruled

56:4-13

Rule 611: Vague (confusing)

Overruled

67:7 to 69:10

Rule 611: Vague (asked and answered)

Overruled

8

73:24 to 74:7

Overruled

122:7-11

Rule 602: Lacks Personal
Knowledge, Speculation
Rule 402: Relevance (any claim under
D&O policy is not subject of the lawsuit);
Rule 403: Prejudice (any marginal
probative value substantially outweighed
by danger of unfair prejudice in confusion
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
Rule 1002: Best Evidence

139:3-6

Rule 1002: Best Evidence

Overruled

141:20 to 145:8 Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury); Rule
802: Hearsay (testimony premised on
hearsay statements)
145:25 to
Rule 402: Relevance; Rule 403: Prejudice
149:19
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury); Rule
602: Lacks Personal Knowledge,
175:2-7
Rule 1002” Best Evidence

Sustained

180:4-9

Sustained

75:9 to 76:22

101:18 to
109:25

Rule 701: Improper Lay Witness Opinion;
Rule 602: Speculation
183:13-19
Rule 611: Completeness (requires
addition of 182:19 to 183:6)
187:10 to 188:8 Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury);
189:12-18
Rule 802: Hearsay (testimony
premised on hearsay within hearsay)
190:8-13
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
193:5-14
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
9

Sustained –
relevance

Sustained –
relevance

Overruled

Sustained –
relevance

Overruled

Sustained
Sustained

Overruled
Sustained

Sustained

193:19 to 194:2 Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
197:3 to 198:4 Rule 701: Improper Lay Witness Opinion;
Rule 602: Lacks Personal Knowledge,
Speculation; Rule 611: Vague

Sustained

201:9-19

Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
Rule 602: Lacks Personal Knowledge,
Speculation; Rule 802: Hearsay
(testimony premised on hearsay
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
Rule 1002: Best Evidence

Sustained

Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
Rule 602: Lacks Personal
Knowledge, Speculation; Rule
611: Vague
Rule 402: Relevance); Rule 403: Prejudice
(any marginal probative value substantially
outweighed by danger of unfair prejudice in
confusion to jury)
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
Rule 602: Speculation

Sustained

208:3-20

209:12-13

213:5-9

214:8-19
217:11-13

219:13-16
219:17-19

220:21-25

227:16-19

237:6-17

10

Overruled

Sustained

Sustained

Sustained

Overruled

Sustained
Sustained

Sustained

Sustained

Sustained

239:19 to 240:3 Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
247:7 to 248:4 Rule 602: Speculation, Lacks
Personal Knowledge
248:5-13
Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury); Rule
602: Speculation, Lacks Personal
Knowledge
248:22 to
Rule 402: Relevance; Rule 403: Prejudice
249:15
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury); Rule
602: Speculation, Lacks Personal
Knowledge

Sustained

256:2-9

Sustained

Rule 602: Speculation, Lacks
Personal Knowledge
Rule 602: Speculation, Lacks
Personal Knowledge

256:10 to
258:10

Sustained
Sustained

Overruled

Sustained

DEPOSITION OF CARL GRANT - 6-22-2012
Item # Testimony
All testimony
from C. Grant’s
6/22/2012
deposition

Objection

Ruling

Virtually the entirety of the designated
Generally,
testimony for Mr. Grant’s 6/22/2012 relates to overruled
reserves or the setting of reserves for the
fidelity bond claim.
See, e.g., the following deposition excerpts:
311:23 to 319:17; 329:23-25; 332:24 to
335:15 to 339:1; 341:20 to 344:8; 346:15 to
350:2; 351:21 to 352:17; 357:6 to 367:10;
372:10 to 375:3; 379:2 to 382:20; 383:18 to
384:2; 385:14 to 386:2; 388:22 to 393:3;
393:11-18; 394:3-6; 396:1-3; 403:23 to
406:17-20
Such testimony is irrelevant and not
at trial, if there is no bad faith claim. See
11

Sunahara v. State Farm Mut. Auto. Ins. Co.,
280 P.3d 649 (Colo. 2012) (holding that
reserves and settlement authority figures are
irrelevant to a jury’s determination of liability
and damages and, thus, not reasonably
calculated to lead to the discovery of
evidence); Silva v. Basin W. Inc., 47 P.3d
1193 (Colo. 2002) (same in context of thirdparty action).
As such the entirety of the designated
should be stricken as irrelevant under Rule
and prejudicial under Rule 403.
310:23 to
314:11;

315:1 to
319:19;

319:20 to
339:18

311:15-22
321:17 to
323:19

335:7-10

Rule 402: Relevance (irrelevant testimony
related to reserves); Rule 403: Prejudice
(any marginal probative value of reserves
testimony substantially outweighed by
danger of unfair prejudice)
Rule 402: Relevance (irrelevant testimony
related to reserves); Rule 403: Prejudice
(any marginal probative value of reserves
testimony substantially outweighed by
danger of unfair prejudice)

Sustained

Rule 402: Relevance (irrelevant testimony
about executive claims summary, which is
only filled out when a reserve is set); Rule
403: Prejudice (any marginal probative
value of reserves testimony substantially
outweighed by danger of unfair prejudice)
Rule 602: Speculation; Lacks
Personal Knowledge
Rule 402: Relevance (irrelevant whether
or not Defendant has a reinsurance policy;
Rule 403: Prejudice (any marginal
probative value substantially outweighed
by danger of unfair prejudice in confusion
to jury)

Sustained

Rule 602: Lacks Personal
Knowledge (if question relates to
you as in AIG)

Sustained

12

Sustained

Sustained
Sustained

337:20 to 339:1 Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)

Sustained

342:6-10

Rule 602; Speculation; Lacks
Personal Knowledge
343:3-6
Rule 602; Speculation; Lacks
Personal Knowledge
343:19 to 344:4 Rule 602; Speculation; Lacks
Personal Knowledge
354:7 to 355:6 Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)
357:17-23
Rule 602: Speculation

Sustained

372:14 to
Rule 602: Speculation
373:24
385:19 to 386:8 Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)

Sustained

389:16-23

Sustained

Rule 402: Relevance; Rule 403: Prejudice
(any marginal probative value
substantially outweighed by danger of
unfair prejudice in confusion to jury)

Sustained
Sustained
Sustained

Sustained

Sustained

DEPOSITION OF CARL GRANT - RULE 30(b)(6) - 8-3-2012
Item # Testimony
14:8-12
28:21-25
38:20-23
54:15-17

Objection

Ruling

Rule 611: Completeness (mischaracterizes Overruled
prior testimony)
Rule 611: Completeness (requires 29:1-16) Overruled
Rule 611: Completeness (requires 38:24 to Overruled
39:2)
Rule 602: Lacks Personal
Sustained
Knowledge, Speculation

13

DATED June 8, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

14