Toy v. American Family Mutual Insurance Company

Filing 277

ORDER Regarding the Parties' Objections to Designations of Deposition Testimony of Victoria Mrowiec by Judge Philip A. Brimmer on 02/11/14. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01683-PAB-MJW
GREGORY TOY,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER REGARDING THE PARTIES’ OBJECTIONS
TO DESIGNATIONS OF DEPOSITION TESTIMONY OF VICTORIA MROWIEC
_____________________________________________________________________
This matter comes before the court on Plaintiff’s Objections to Defendant
American Family Mutual Insurance Company’s Counter Designations [Docket No. 182-1
at 1-3] and American Family’s Objections and Counter Designations [Docket No. 171 at
1-8] as to Victoria Mrowiec.
As a threshold matter, plaintiff seeks to present Victoria Mrowiec’s deposition
testimony by video, despite the fact that she is under subpoena and available to testify.
Docket No. 220-1 at 7. Plaintiff argues that he is permitted to use Ms. Mrowiec’s
deposition testimony regardless of her availability because Ms. Mrowiec, as the adjuster
assigned to plaintiff’s claim, was a “managing agent” for purposes of Fed. R. Civ. P.
32(a)(3). “An adverse party may use for any purpose the deposition of a party or anyone
who, when deposed, was the party’s officer, director, managing agent, or designee under
Rule 30(b)(6) or 31(a)(4).” Fed. R. Civ. P. 32(a)(3). In determining whether an individual
is a managing agent under the Federal Rules, courts consider (1) whether the agent’s

interests are identified with those of the principal; (2) the nature and extent of the agent’s
functions, responsibilities, and duties; (3) the agent’s power to exercise independent
judgment and discretion; and (4) whether any person with higher authority than the
deponent was in charge of the particular matter or possessed the necessary information
sought in the deposition. Stearns v. Paccar, Inc., 1993 WL 17084, 986 F.2d 1429, at *4
(10th Cir. 1993) (unpublished). A managing agent is an individual with actual discretion
“in making decisions without obtaining additional authorization from superiors.” Young &
Assoc. Pub. Relations, L.L.C. v. Delta Air Lines, Inc., 216 F.R.D. 521, 523 (D. Utah
2003). An individual’s official title is not determinative; however, a managing agent must
have similar authority to that of officers, directors, and Rule 30(b)(6) designees to “act on
behalf of the corporation or answer for it.” Hynix Semiconductor Inc. v. Rambus Inc.,
2008 WL 350643, at *2 (N.D. Cal. Feb. 2, 2008).
Plaintiff argues that, as the primary adjuster assigned to handle plaintiff’s claim,
Ms. Mrowiec was the person most familiar with relevant facts. Docket No. 220-1 at 8.
However, plaintiff provides insufficient evidence to suggest that Ms. Mrowiec had actual
discretion to make key claims handling decisions without obtaining additional
authorization from her superiors. To the contrary, Ms. Mrowiec admitted that plaintiff’s
claim file was supervised. Docket No. 265 at 3. Moreover, Ms. Mrowiec’s claim notes
indicate that she requested authorization from her superior before making settlement
offers to plaintiff. See, e.g., Docket No. 235-2 at 5. Thus, the Court finds that plaintiff
has failed to meet his burden of showing that Ms. Mrowiec was a “managing agent” as
contemplated by Fed. R. Civ. P. 32(a)(3). Because Ms. Mrowiec is under subpoena,
plaintiff will be prohibited from presenting Ms. Mrowiec’s videotaped deposition in lieu of
2

her live testimony. Plaintiff is not precluded, subject to objection, from using Ms.
Mrowiec’s videotaped deposition testimony for other purposes (e.g. impeachment).
The Court rules as follows as to plaintiff’s objections:
Item
#
1

Testimony

Plaintiff’s Objections

39:11 – 40:10

F.R.E. 401, 402; 403; not required by Fed. R.
Civ. P. 32(a)(6) (the testimony need not, in
fairness, be presented at the same time as
Plaintiff’s designated testimony)

2.

42:20 – 45:8

3.
4.

46:2 – 46:15
51:13 – 54:23

F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
No objection
F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)

5.

66:2 – 66:3

6.
7.
8.
9.
10.
11.
12.
13.
14.

15.

No question designated; F.R.E. 403; not
required by Fed. R. Civ. P. 32(a)(6)

Ruling
Sustained as
irrelevant. Not
necessary to
introduce
in plaintiff‘s
case under
Rule 32(a)(6).
Overruled. Rule
32(a)(6)
Overruled. Rule
32(a)(6).

Sustained. No
question was
designated.
70:17 – 71:21 Answers are nonresponsive; F.R.E. 403; not Overruled.
required by Fed. R. Civ. P. 32(a)(6)
81:22 – 82:13 Answers are nonresponsive; F.R.E. 403; not Overruled. Rule
required by Fed. R. Civ. P. 32(a)(6)
32(a)(6).
90:13 – 90:18 Answers are nonresponsive; F.R.E. 403; not Overruled. Rule
required by Fed. R. Civ. P. 32(a)(6)
32(a)(6).
90:21 – 90:23 Answers are nonresponsive; F.R.E. 403; not Overruled. Rule
required by Fed. R. Civ. P. 32(a)(6)
32(a)(6).
91:7 – 92:1
F.R.E. 403; not required by Fed. R. Civ. P.
Sustained.
32(a)(6)
99:25 – 100:1 F.R.E. 403; not required by Fed. R. Civ. P.
Sustained.
32(a)(6)
100:3 – 100:5 F.R.E. 403; not required by Fed. R. Civ. P.
Sustained.
32(a)(6)
100:7 – 100:8 F.R.E. 403; not required by Fed. R. Civ. P.
Sustained.
32(a)(6)
100:18 –
F.R.E. 403; not required by Fed. R. Civ. P.
Sustained. No
100:21
32(a)(6)
answer
designated.
101:6 – 101:10 No objection
3

16.
17.
18.

19.
20.
21.
22.
23.
24.
25.

26.

27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.

106:10 – 107:5 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
107:22 –
F.R.E. 403; not required by Fed. R. Civ. P.
108:10
32(a)(6)
123:3 – 123:6 F.R.E. 403 (misleading because question re
refreshing memory does not pertain to
subject matter of designated questions); not
required by Fed. R. Civ. P. 32(a)(6)
133:2 – 133:25 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
138:8 – 138:16 No objection
140:6 – 141:9 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
143:6 – 144:4 No objection
146:1 – 148:4 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
151:10 –
No objection
153:15 –
F.R.E. 403; attorney comments regarding
153:20
document are not proper evidence; not
required by Fed. R. Civ. P. 32(a)(6)
157:8 – 157:18 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
163:5 – 163:10 No objection
166:22 – 167:4 Answers are nonresponsive; F.R.E. 403; not
required by Fed. R. Civ. P. 32(a)(6)
167:14 –
No objection
181:21 – 184:1 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
190:7 – 191:23 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
195:20 –
F.R.E. 403; not required by Fed. R. Civ. P.
196:10
32(a)(6)
201:9 – 201:19 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
213:10 –
No objection
223:1 – 223:24 F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
244:22 –
F.R.E. 403; not required by Fed. R. Civ. P.
245:15
32(a)(6)
264:20 –
No objection
272:17 –
No objection
292:15 –
Not required by Fed. R. Civ. P. 32(a)(6)
4

Sustained. Rule
32(a)(6).
Sustained. Rule
32(a)(6).
Overruled.

Overruled.

Sustained. Rule
32(a)(6).
Overruled.

Sustained.

Sustained.

Overruled.

Sustained. Rule
32(a)(6).
Sustained.
Overruled.
Overruled.

Overruled.
Overruled.

Overruled.

40.

303:23 –
304:10

F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6); see Plaintiff’s Motion In Limine to
Preclude Defendant From Contesting
Plaintiff’s Damages as Determined at
Arbitration (Motion In Limine No. 3) [Doc.
#174]

Overruled.

The Court rules as follows as to defendant’s objections:

Testimony
36:18-39:1

Defendant’s Objections
Relevance

Ruling
Overruled.

63:9 – 63:11

Relevance, foundation, calls for a legal
conclusion, vague, improperly requests the
witness to instruct the jury on the law,
misstates the law

Overruled.

63:20 –
63:25

Relevance, foundation, calls for a legal
conclusion, vague, improperly requests
the witness to instruct the jury on the law,
misstates the law

Overruled.

66:8 – 10

Relevance, foundation, calls for a legal
conclusion, vague, improperly requests the
witness to instruct the jury on the law,
misstates the law

Overruled.

69:22-70:8

Relevance, foundation, calls for a legal
conclusion, vague, improperly requests the
witness to instruct the jury on the law,
misstates the law and is therefore
misleading
Vague, incomplete hypothetical

Overruled.

75:2-4, 75:910

Relevance, foundation, calls for a legal
conclusion, vague, improperly requests
the witness to instruct the jury on the law,
misstates the law and is therefore
misleading

Overruled.
Moreover, any
objection was
waived.

76:14-76:21

Vague, incomplete hypothetical, relevance
discusses a denied claim

Overruled.

72:11-17

5

Overruled.

76:22 – 77:1

Vague, incomplete hypothetical, relevance
discusses a denied claim

Overruled.

78:21-79:24

Relevance, vague, incomplete
hypothetical, foundation, calls for a legal
conclusion, improperly requests the
witness to instruct the jury on the law,
misstates the law and is therefore
misleading

Overruled.

79:25-80:23

Relevance, vague, incomplete
hypothetical, foundation, calls for a legal
conclusion, improperly requests the
witness to instruct the jury on the law,
misstates the law and is therefore
misleading

As to 79:25-80:12,
overruled. As to 8018-80-23, sustained.
Assumes facts not in
evidence.

80:24 – 81:7

Relevance, vague, incomplete
hypothetical, foundation, calls for a legal
conclusion, improperly requests the
witness to instruct the jury on the law,
misstates the law and is therefore
misleading
Relevance, vague, incomplete hypothetical,
foundation, calls for a legal conclusion,
improperly requests the witness to instruct
the jury on the law, misstates the law and is
therefore misleading

82:14-21

Overruled.

Sustained. Vague
and misleading.

83:14-84:1

Relevance, vague, incomplete hypothetical,
foundation, calls for a legal conclusion,
improperly requests the witness to instruct
the jury on the law, misstates the law and is
therefore misleading

Sustained. Vague
and misleading. A
compound question.

84:12-84:16

Relevance, vague, incomplete hypothetical,
asks about “fairness” which is not the
applicable legal standard

Overruled.

84:24-85:6

Relevance, vague, incomplete hypothetical,
asks about “fairness” which is not the
applicable legal standard

Sustained.
Assumes facts not
in evidence.

6

85:12-23

Relevance, vague,incomplete hypothetical,
asks about “fairness” which is not the
applicable legal standard

Sustained.
Assumes facts not
in evidence.

88:16-89:19

Relevance, vague, incomplete hypothetical,
foundation, calls for a legal conclusion,
improperly requests the witness to instruct
the jury on the law, misstates the law and is
therefore misleading

Overruled.

89:20-90:1

Relevance, vague, incomplete hypothetical,
foundation, calls for a legal conclusion,
improperly requests the witness to instruct
the jury on the law, misstates the law and is
therefore misleading

Overruled.

90:2-90:5

Relevance, vague, incomplete hypothetical,
foundation, calls for a legal conclusion,
improperly requests the witness to instruct
the jury on the law, misstates the law and is
therefore misleading

Overruled.

90:8 – 90:12

Relevance, vague, incomplete hypothetical,
foundation, calls for a legal conclusion,
improperly requests the witness to instruct
the jury on the law, misstates the law and is
therefore misleading

Overruled.

94:4 – 17

Document referenced is incomplete.
Question is misleading.

114:15-115:25

Relevance, foundation, calls for a legal
conclusion, improperly requests the witness
to instruct the jury on the law, misstates the
law and is therefore misleading

Overruled.
Defendant fails to
attach document so
defendant fails to
support claim of
incompleteness.
Overruled.

123:7-124:25

Foundation, leading question, the question
contains hearsay
7

Overruled.

125:2-126:14

Leading question, the question contains
hearsay

127:20-128:7

Leading question, the question contains
hearsay

130:6-130:9

Asked and answered, cumulative

131:19 – 132:1 Lack of foundation, calls for a legal
conclusion
137:21-138:7
Leading question, the question contains
hearsay
138:17 –
139:19 [sic]

Leading question, the question contains
hearsay

160:13 – 161:9 Foundation, leading question, the question
contains hearsay
161:10 – 162:6 Foundation, leading question, the question
contains hearsay
162:8 – 163:4

Foundation, leading question, the question
contains hearsay

166:15-166:21

Leading, mischaracterizes testimony in the
record
Leading question, the question contains
hearsay

168:12-171:5

Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled.
Overruled.
Overruled contingent
on prior admission of
document.
Overruled.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled.

176:2-22

Calls for a legal conclusion, foundation

177:3-22

Leading question, the question contains
hearsay

179:11-15

The question contains hearsay

Overruled contingent
on prior admission of
document.
As to 176:2-19,
overruled. As to
176:20-22, see
181:13-18.
Overruled contingent
on prior admission of
document.
Overruled.

180:1-181:18

Leading, hearsay, foundation

Overruled.

8

191:25 –
192:15

Leading question, the question contains
hearsay

201:20-25

Foundation, calls for speculation

202:10 –
Leading
204:21
207:7 – 211:19 Leading, hearsay, calls for speculation
213:3 [sic] –
Calls for speculation
212:10
213:22 - 214:11 Leading, the question contains hearsay
213:22-214:11

Leading, the question contains hearsay

214:21-215:16

Leading, the question contains hearsay

215:17 – 216:1 Calls for speculation, lack of foundation
215:24 –
216:14

Leading, the question contains hearsay

217:5 – 218:12 Leading question, the question contains
hearsay
218:16 –
Leading question, the question contains
219:11
hearsay
219:16 – 220:5 The question contains hearsay
220:10-221:7

The question contains hearsay

222:7-25

Leading question, the question contains
hearsay

225:16 [sic] –
227:8

Leading question, the question contains
hearsay

228:5 – 230:24 Leading question, the question contains
hearsay

9

Overruled contingent
on prior admission of
document.
Overruled.
Overruled.
Overruled contingent
on prior admission of
document.
Overruled. Objection
waived.
Overruled contingent
on prior admission of
document.
Duplicate.
Overruled contingent
on prior admission of
document.
Overruled.
Overruled contingent
on prior admission of
document.
Overruled. Objection
waived.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.

233:23 [sic] –
231:2
231:3 – 232:3

Calls for speculation

Sustained.

The question contains hearsay, speculation,
lack of foundation

Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled contingent
on prior admission of
document.
Overruled.

232:4 – 235:21 Leading, the question contains hearsay
236:7 – 237:11 Leading, the question contains hearsay
237:17 –
237:18
237:22 –
239:16
239:19 – 240:1

Asked and answered

Leading, the question contains hearsay,
asked and answered
Leading, the question contains hearsay,
asked and answered
240:4 - 240:16 Leading, mischaracterizes the evidence

Overruled.

240:14 -20

Leading, mischaracterizes the evidence

Overruled.

240:21 –
241:11

Leading, the question contains hearsay

244:2 – 244:21 Asked and answered

Overruled contingent
on prior admission of
document.
Overruled.

245:16 -245:20 Mischaracterizes evidence

Overruled.

247:5 -14

Overruled.

Asked and answered

248:1 – 250:20 Leading, the question contains hearsay,

Overruled.
Overruled.

Overruled.

250:21 – 251:3 Lack of foundation, calls for a legal conclusion Sustained.
251:3 – 245:15 Asked and answered, mischaracterizes
evidence, the question contains hearsay
254:23 – 255:7 Asked and answered, the question contains
hearsay
255:25 –
Asked and answered, mischaracterizes
256:12
evidence
256:13 –
Asked and answered, the question contains
256:23
hearsay

10

Overruled.
Citations to record
make no sense.
Overruled.
Overruled.
Overruled contingent
on prior admission of
document.

257:18 –
Asked and answered, the question contains
258:21
hearsay
258:22 – 260:5 Asked and answered, mischaracterizes
evidence, the question contains hearsay

Overruled.

260:13 -261:20 The question contains hearsay

Overruled contingent
on prior admission of
document.
Sustained.

261:24 – 261:5 Mischaracterizes the evidence, calls for
speculation, lack of foundation, the question
contains hearsay
263:19 – 263:9 Calls for speculation, lack of foundation,
asked and answered
263:12 -263:20 Asked and answered, the question contains
hearsay
263:24-264:2
Mischaracterizes evidence
264:3 – 264:19 Asked and answered, the question contains
hearsay
268:5 – 269:4 Leading, the question contains hearsay

270:22 –
271:17

Leading, the question contains hearsay

272:11-16

Relevance

272:25 –
275:10
275:14 –
275:23
276:14 –
277:21
278:9 – 279:15

Leading, the question contains hearsay,
relevance
Relevance
Relevance, the question contains hearsay
The question contains hearsay

283:13 – 284:9 The question contains hearsay,

284:10 – 285:1 Mischaracterizes evidence, misleading,

11

Overruled.

Overruled. Citations
to the record make
no sense.
Overruled.
Overruled.
Overruled.
Overruled.
contingent on prior
admission of
document.
Overruled contingent
on prior admission of
document.
Overruled.
Overruled.
Sustained.
Foundation.
Overruled contingent
on prior admission of
Overruled.
Overruled contingent
on prior admission of
document. 284:5-23
is irrelevant.
Sustained.
Irrelevant.

286:23 –
278:10 [sic]

Mischaracterizes evidence, misleading, the
question contains hearsay

Sustained.
Irrelevant.

287:11 –
290:12
298:19 –
303:16

Lack of foundation, the question contains
hearsay
Questions contain hearsay, lack of
foundation,

Overruled.
Overruled.

DATED February 11, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

12