North Pacific Insurance Company et al v Gardner et al

Filing 32

MEMORANDUM ORDER denying 14 Motion for Summary Judgment; denying 24 Motion to Strike. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

NORTH PACIFIC INSURANCE
COMPANY, a Massachusetts
Corporation,

Case No. 4:11-CV-00147-EJL
MEMORANDUM ORDER

Plaintiff - Counterdefendant,
v.
RICHARD GARDNER, an individual,
and DIXIE GARDNER, an individual,
Defendants - Counterclaimants.

INTRODUCTION
Pending before the Court in the above-entitled matter are Plaintiff’s Motion for
Summary Judgment and related Motion to Strike. (Dkt. 14, 24.) Having fully reviewed
the record, the Court finds that the facts and legal arguments are adequately presented in
the briefs and record. Accordingly, in the interest of avoiding further delay, and because
the Court conclusively finds that the decisional process would not be significantly aided
by oral argument, these Motions shall be decided on the record before this Court without
oral argument.

MEMORANDUM ORDER - 1

BACKGROUND
On April 7, 2011, the Plaintiff North Pacific Insurance Company (“North Pacific”)
filed a Complaint initiating this action for Declaratory Judgment against the Defendants
Mr. Richard Gardner and Mrs. Dixie Gardner. (Dkt. 1.) North Pacific had issued to Mr.
Gardners, d/b/a “Dick’s Mobile Catering,” a Business Auto Coverage Policy, Form LCA
4055 01-09 and LCA 4056 01-09, Policy No. C12 145273 (hereinafter the “Policy”).
(Dkt. 1 at ¶ 4.) The Policy was for a period of one year effective July 3, 2009. (Dkt. 1 at
3.) The questions raised in this case concern the Gardner’s request for insurance coverage
from North Pacific for damages arising from a car accident occurring on July 2, 2010.
(Dkt. 1 at 2.)
On that day at approximately 9:00 p.m., Mr. Gardner was driving the insured
vehicle, a 1979 Chevrolet box van, covered by the Policy when the accident in question
occurred. (Dkt. 1 at 3.) Just prior to the accident, Mr. Gardner has stated that he saw
traffic behind him in his rear-view mirror and another vehicle approaching his van from a
hill in front of him. Mrs. Gardner states that she saw a vehicle accelerate past their
catering van on the left across a double yellow line. That vehicle then veered back into
the right-hand lane in which the Gardner’s catering van was traveling. Mr. and Mrs.
Gardner both state they heard a loud bang and Mr. Gardner felt an impact right before
their vehicle went off the road. Neither Mr. nor Mrs. Gardner have stated that they recall
seeing the passing vehicle strike their catering van. (Dkt. 14-2 at ¶¶ 2, 3.) The Gardner’s
van left off the road and crashed into a parked tractor and hay rake causing damage to the
MEMORANDUM ORDER - 2

van and injuring both Mr. and Mrs. Gardner. (Dkt. 1 at ¶ 4.)
Following the accident, the Gardners made a claim under the Policy to recover
damages suffered in the accident. Mr. and Mrs. Gardner allege the accident was the result
of a hit-and-run driver and, therefore, covered under the uninsured/underinsured motorist
provision of the Policy. North Pacific conducted interviews of both Mr. and Mrs. Gardner
and investigated their claim for coverage. Based on its investigation, North Pacific
determined there was no physical contact between another vehicle and the insured vehicle
and denied coverage. North Pacific then filed the Complaint in this case seeking a
declaratory judgment finding that the accident does not fall within the
uninsured/underinsured motorist coverage of the Policy; specifically, that there is no
uninsured/under insured coverage under the Policy unless there is a “hit-and-run” vehicle
that made “physical contact” with the insureds’ vehicle. (Dkt. 1 at ¶ 5.) In addition, North
Pacific contends the Gardners did not comply with the Policy’s other condition requiring
them to promptly notifying the police of a hit-and-run and, on that basis, are also not
covered by the Policy. (Dkt. 14-1 at ¶ 9-11.) Mr. and Mrs. Gardner counter that the Policy
is ambiguous as to whether physical contact is required for coverage and that they
satisfied the notification provision. (Dkt. 15.) The Gardners have also filed counterclaims
for breach of contract and breach of good faith and fair dealing. (Dkt. 4.) North Pacific
filed the pending Motion for Summary Judgment and Motion to Strike which the Court
now takes up and finds as follows.

MEMORANDUM ORDER - 3

DISCUSSION
1.

Motion for Summary Judgment
A.

Standard of Review

Motions for summary judgment are governed by Rule 56 of the Federal Rules of
Civil Procedure. Rule 56 provides, in pertinent part, that “[t]he court shall grant summary
judgment 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. The court should state on the record
the reasons for granting or denying the motion.” Fed. R. Civ. P. 56(a). “A party asserting
that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials; or (B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1).
The party moving for summary judgment has the initial burden of showing that
there are no genuine issues of material fact and that it is entitled to judgment as a matter
of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). Once the moving
party has met this initial burden, the nonmoving party has the subsequent burden of
presenting evidence to show that a genuine issue of fact remains. The party opposing the
motion for summary judgment may not rest upon the mere allegations or denials of her
MEMORANDUM ORDER - 4

pleading, but must set forth specific facts showing that there is a genuine issue for trial.
Id. at 248. If the non-moving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial” then summary judgment is proper as “there can be no ‘genuine
issue of material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)1
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of
summary judgment, must be both “material” and “genuine.” An issue is “material” if it
affects the outcome of the litigation. An issue, before it may be considered “genuine,”
must be established by “sufficient evidence supporting the claimed factual dispute . . . to
require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Hahn
v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities Serv. Co.
Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British
Motor Car Distrib. V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th
Cir. 1989).

1

(e)

See also, Rule 56(e) which provides:
Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion
of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the
court may:
(1)
give an opportunity to properly support or address the fact;
(2)
consider the fact undisputed for purposes of the motion;
(3)
grant summary judgment if the motion and supporting materials--including the facts
considered undisputed--show that the movant is entitled to it; or
(4)
issue any other appropriate order.

MEMORANDUM ORDER - 5

According to the Ninth Circuit, in order to withstand a motion for summary
judgment, a party
(1) must make a showing sufficient to establish a genuine issue of fact with
respect to any element for which it bears the burden of proof; (2) must show
that there is an issue that may reasonably be resolved in favor of either
party; and (3) must come forward with more persuasive evidence than
would otherwise be necessary when the factual context makes the nonmoving party’s claim implausible.
Id. at 374 (citation omitted). Of course, when applying the above standard, the court must
view all of the evidence in the light most favorable to the non-moving party. Anderson,
477 U.S. at 255; Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
B.

Hit-and-Run Provision

The language in the Policy concerning a hit-and-run accident states:
‘“Uninsured motor vehicle’ means a land motor vehicle or ‘trailer’: ...

c.

That is a hit-and-run vehicle and neither the driver nor owner can be
identified. The vehicle must hit an ‘insured,’ a covered ‘auto’ or a vehicle
an ‘insured’ is ‘occupying.”’

MEMORANDUM ORDER - 6

(Dkt. 1 at Ex. 1; Dkt. 14-2 at ¶¶ 3-5.) It is not disputed that the Gardner’s catering van and
Mr. and Mrs. Gardner are all “insured” under the definitions in the Policy. (Dkt. 1 at ¶ 3.)2
It is also undisputed that the Policy covers damages caused by uninsured motorists;
specifically, hit-and-run vehicles. What is at issue in this case are the specific
requirements for obtaining uninsured/underinsured coverage in a hit-and-run accident.
North Pacific contends the Policy is clear based on the use of the word “hit” that
“physical contact” is required for uninsured motorist coverage. The Gardners argue that
the Policy’s language is ambiguous because the word “hit” does not seem to be defined in
the policy.
When interpreting insurance policies, Idaho courts apply “the general rules of
contract law subject to certain special canons of construction.” Arreguin v. Farmers Ins.
Co. of Idaho, 180 P.3d 498, 500 (Idaho 2008) (citing Clark v. Prudential Prop. & Cas.
2

Relevant portions of the Policy read:

A. Coverage:
1. We will pay all sums the “insured” is legally entitled to recover as compensatory damages
from the owner or driver of an “uninsured motor vehicle.” The damages must result from “bodily
injury” sustained by the “insured” caused by an “accident.” The owner’s or driver’s liability for
these damages must result from the ownership, maintenance or use of the “uninsured motor
vehicle.” ...
B. Who is an Insured: If the Named Insured is designated in the Declaration as:
1. An individual, then the following are “insureds”:
a. The Named Insured and any “family members”.
...
(Dkt. 1 at Ex. 1; Dkt. 14-2 at ¶¶ 3-5.)

MEMORANDUM ORDER - 7

Ins. Co., 66 P.3d 242, 244 (Idaho 2003)). “The general rule is that, because insurance
contracts are adhesion contracts, typically not subject to negotiation between the parties,
any ambiguity that exists in the contract ‘must be construed most strongly against the
insurer.’” Id. (quoting Farmers Ins. Co. of Idaho v. Talbot, 987 P.2d 1043, 1047 (Idaho
1999) (citation omitted). Where a contract’s language is clear and unambiguous, its
interpretation and legal effect are questions of law. Bondy v. Levy, 829 P.2d 1342 (Idaho
1992). If, however, the language in the insurance contract is “reasonably subject to
differing interpretations,” then it is ambiguous and will be construed strongly against the
insurer. See Clark, 66 P.3d at 244; see also Mutual of Enumclaw Ins. Co. v. Roberts, 912
P.2d 119, 122 (Idaho 1996). It is up to the Plaintiff to make sure their policy is clear in its
restriction of scope. See Clark, 66 P.3d at 245. Whether an insurance policy is ambiguous
is a question of law to be answered by the Court. Arreguin, 180 P.3d at 500; see also
Armstrong v. Farmers Ins. Co. of Idaho, 205 P.3d 1203 (Idaho 2009) (citation omitted);
Clark v. St. Paul Property & Liab. Ins. Cos., 639 P.2d 454 (1981).
Here, the Court finds the language of the Policy is unambiguous in that it requires
there to be some kind of physical contact between the insured and another.3 The common

3

In Idaho, hit-and-run coverage is neither mandated nor prohibited. Idaho Code § 41-2502,
directs that coverage be made available for the protection of persons insured thereunder who are legally
entitled to recover from owners or operators of uninsured motor vehicles. See Hammon v. Farmers Ins.
Co. of Idaho, 707 P.2d 397 (Idaho 1985). This statutory language is consistent with an insurance policy’s
requirement for there to be physical contact in order to trigger coverage under the uninsured motorist
clause of the policy. See Miller v. United States Fidelity & Guar. Ins. Co., 738 P.2d 425, 427 (Idaho
1987).
MEMORANDUM ORDER - 8

and ordinary meaning of “hit” implies physical contact.4 The word is not ambiguous. A
reasonable person would understand “hit-and-run” to mean physical contact between two
vehicles. Thus, the Court finds the unambiguous language in the Policy requires some
kind of physical contact in order to qualify as having been “hit.” The extent and type of
contact required is a different matter.
Idaho law articulates that physical contact may be “direct touching” or “indirect
contact which occurs when a vehicle knocks an intermediate object into the insured,”
either by “collision” or “thrown object.” See Miller v. U.S. Fidelity & Guaranty Ins. Co.,
738 P.2d 425, 427 (Idaho App. 1987) (citing Sapp v. State Farm Automobile Ins. Co., 361
N.E.2d 174 (Ind.Ct. App. 1977) (no physical contact where errant driving by an
unidentified motorist induces a response by another driver, who swerves to avoid a
collision) and Krych v. Mercury Casualty Co., 94 Cal. Rptr. 592 (1971) (no physical
contact, as contemplated by the insurance policy, where the transmitted “contact” is
nothing more than a molecular interaction such as sound or light energy)). Direct contact
is easily defined to include a direct touching and/or contact. Indirect contact requires a bit

4

According to Merriam-Webster’s Dictionary and Dictionary.com, the following
are the first few listed and reasonably, the most common definitions of “hit”:
(1) to deal a blow or strike to: hit the nail with the hammer
(2) to come in contact with: the ball hit the window
(3) to strike with an object as to impart or redirect motion
(4) to affect adversely
The Court notes Gardners’ argument that “affect adversely” is an accepted definition of
“hit”, but the Court points out that the more common meaning of “hit” implies physical
contact. (Dkt. 15 at 4.)
MEMORANDUM ORDER - 9

more explanation. According to Miller, for there to be indirect contact which would
amount to physical contact, there must be a “substantial nexus among the vehicle, the
intermediate object and the insured, and if the transmitted force is continuous and
contemporaneous, then there has been physical contact within the meaning of the policy.”
Miller, 738 P.2d at 427.
The material issue in dispute in this case is whether or not the Gardners’ car was
actually hit by another vehicle or otherwise contacted so as to qualify as a “hit” under the
language of the Policy. This is the crux of the dispute. It is unclear and disputed by both
sides as to exactly what happened to cause the accident. On this Motion, the Court finds
that the Gardners have established the existence of a genuine issue of material fact, so as
to preclude entry of summary judgment against them. See Celotex, 477 U.S. at 322-23;
Fed R. Civ. P. 56(e).
When considering the Gardner’s sworn statements about that day, (stating they
saw a car passing closely and hearing a loud bang) (Dkt. 14-2), a witness’s statement of
what he saw5, the police and accident report6, and the affidavits submitted in opposition to
this motion (sworn statements of the Gardners, Counsel, and Trooper Ed Robertson)
(Dkts. 16-19), the Court finds that there is a genuine issue of fact as to the cause of the
5

“I was starting the irrigation pumps. ½ mile south of the accident site. I saw the vehicle coming
off of the road in a cloud of dust. When it hit the tractor and hay rake, I heard a crack. I immediately got
in my pick up and went to the crash site. I saw a car that looked like it was trying to pass the van that may
have [been] the reason the [car] left the road. I was ½ a mile away so it is hard to be sure, if the car
contributed to the accident. There were cars coming over the hill from the west. They were pretty close.”
Witness statement of Ismael Gonzalez. (Dkt. 21 at ¶ 6.)
6

Stating that a vehicle passed and cut off the catering van causing the crash. (Dkt. 14-6.)

MEMORANDUM ORDER - 10

accident. More specifically, it is unclear whether the Gardners were hit by another car or
otherwise physically contacted or not. Because this fact is disputed, the Court must deny
the Motion for Summary Judgment and set this matter for trial. This is a question the jury
will have to answer based on its determination of the credibility of the witnesses, the
weight to give to each person’s testimony, any expert opinions, and all of the evidence
presented to it at trial.
C.

Condition to Promptly Notify Police

North Pacific argues an additional reason it is not obligated to provide coverage is
because the Gardners did not comply with their duty under the Policy to give prompt
notice to the police of a hit-and-run accident. (Dkt. 14-1 at ¶ 9-12.) The Gardners
maintain they complied with this requirement as evidenced by the police report indicating
the officer had knowledge of the hit-and-run driver from the beginning of the
investigation and that Mrs. Gardner recalls telling several people at the scene about a car
that cut them off. (Dkt. 15 at ¶ 7.) Additionally, Mr. Gardner was in the hospital and in
and out of consciousness for days following the accident, unable to speak to police about
the accident. (Dkt. 15 at ¶ 7-8.)
The portions of the Policy relevant to the notification issue state:
BUSINESS AUTO COVERAGE FORM...
SECTION IV-BUSINESS AUTO CONDITIONS
The following conditions apply in addition to the Common Policy
Conditions:...
MEMORANDUM ORDER - 11

2.

Duties In The Event Of Accident, Claim, Suit Or Loss

We have no duty to provide coverage under this policy unless there
has been full compliance with the following duties: [including
Section (E)(2)(a) of Form 4055 below]

E.

Changes in Conditions: The Conditions

are changed for Uninsured Motorists Coverage
as follows: ...
2.

Duties In The Event Of Accident,
Claim, Suit Or Loss is changed by
adding the following:
a.

Promptly notify the police if a hit-andrun driver is involved, and...

(Dkt. 1, Ex. 1 and Dkt. 14-2 at ¶¶ 3-5.) North Pacific alleges this language establishes a
condition precedent to coverage requiring the Gardners to comply before its obligation to
insure arises.
Requiring prompt notification of the police of a hit-and-run is a reasonable
condition precedent in an insurance policy. See Viani v. Aetna Insurance Co., 501 P.2d
MEMORANDUM ORDER - 12

706, 710 (1972), overruled on other grounds by Sloviaczek v. Estate of Puckett, 565 P.2d
564 (1977); Leach v. Farmer’s Auto. Interinsurance Exch., 213 P.2d 920, 923 (Idaho
1950) (“[P]rovisions for notice and cooperation in a liability insurance policy are valid,
reasonable requirements....”). Failure to satisfy such a condition may release the insurer
from the obligations imposed by the contract. Leach, 213 P.2d at 920. The question of
whether or not notice was prompt in accordance with the terms of the insurance policy is
a question of fact. Viani, 501 P.2d 706.
In this case, this Court finds that there is a genuine issue of material fact as to the
extent of the Gardner’s performance of this condition. North Pacific points out that Mr.
Gardner testified that he did not recall speaking to the police about the accident and
argues that Mrs. Gardner never told police that another vehicle struck the van. (Dkt. 14-1
at 10.) Thus, North Pacific maintains the Gardners failed to notify police that they were
involved in an accident with a hit-and-run driver. The Gardners counter by pointing to the
police report which, they argue, goes to show the police knew of the hit-and-run driver
from the beginning of their investigation. (Dkt. 15 at 7.) Furthermore, they note that they
were transported by ambulance directly to the hospital from the accident scene, Mrs.
Gardner cannot remember who she spoke with following the crash as a result of her
injuries as well as her concern for her husband but has stated that she recalls telling
people at the scene about the other car, and Mr. Gardner had suffered life-threatening

MEMORANDUM ORDER - 13

injuries preventing him from notifying the officers promptly. (Dkt. 15 at 7-8.)7
Based on the submissions of the parties at this time, the Court finds a genuine issue
of material fact exists as to whether or not the Gardners satisfied the notification
provision of the Policy. What was told to the police both at the scene and later is disputed.
Mrs. Gardner’s Affidavit states that she “spoke with several people at the scene about the
car that ran us off the road” but she does not remember if she spoke with police at the
scene. (Dkt. 20-2.) Mrs. Gardner does remember talking to the officer’s supervisor about
the police report following her release from the hospital. The police collision report itself
states the “Vehicle was forced off the road by other vehicle passing it” and “The driver of
the vehicle who was said to be passing was not found due to the witness not being able to
give any description of the vehicle.” (Dkt. 21, Ex. A.) The witness’s statement also
mentioned another vehicle. Thus, there is some indication that the officers were made
aware that there was another vehicle involved in the incident giving rise to a genuine
question as to a material fact. Furthermore, what was told to the officers at the scene is
complicated by the fact that both Mr. and Mrs. Gardner were hospitalized immediately
following the accident in poor condition for a few days. Based on the foregoing, the Court
finds a genuine issue of material fact exists as to this issue and the Motion for Summary
Judgment is denied.
7

The Gardners also argue there North Pacific was not prejudiced by any notice deficiency. (Dkt.
15 at 8.) The law in Idaho, however, does not require a showing of prejudice to the insurer where an
insured fails to perform a condition precedent of giving notice of a suit and/or accident within a
reasonable time. See Hoffman v. Oregon Mut. Ins. Co., No. CIV. 1:11-120 WBS, 2012 WL 1981484, at
*5 (D. Idaho May 29, 2012).
MEMORANDUM ORDER - 14

D.

The Gardner’s Counter Claims

The Gardners have also raised Counter Claims for breach of contract and breach of
duty of good faith and fair dealing. (Dkt. 4.) The Motion for Summary Judgement seeks a
ruling as a matter of law as to the Counter Claims. The Counter Claims are premised upon
the same disputed facts and circumstances as North Pacific’s claims. For the same reasons
stated above, the Court finds genuine issues of material fact exist as to the Gardner’s
Counter Claims and the Motion is denied in this respect.
2.

Motion to Strike Affidavit of Trooper Robertson
In opposition to the Motion for Summary Judgment, Mr. and Mrs. Gardner filed an

affidavit of, among others, Trooper Edward Robertson, an accident reconstructionist hired
to examine the information relating to the accident. (Dkt. 19.) This Affidavit is the subject
of the Motion to Strike wherein North Pacific argues that Trooper Robertson does not
meet the requirements of Federal Rule of Evidence 702 or Daubert in the methodology
used to reach the conclusions in his opinion affidavit. (Dkt. 24.)
Rule 702 permits testimony is based on “technical or other specialized knowledge
and will assist the trier of fact to understand the evidence or determine a fact at issue.”
The rule specifically provides that a person can be qualified as an expert based on
experience or training. Id. Proponents of expert testimony do not have to demonstrate for
purposes of summary judgment or trial that their expert’s assessments are correct. See
Parkinson v. Guidant Corp., 315 F.2d 754, 758 (W.D.Pa. 2004).

MEMORANDUM ORDER - 15

Daubert requires the district court to determine whether the expert’s testimony
reflects “scientific knowledge derived by the scientific method” and whether his or her
work product amounts to “good science.” United States v. Sherwood, 98 F.3d 402, 407
(1996) (citing Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). The
district court must then determine whether “the proposed expert testimony is ‘relevant to
the task at hand,’” meaning that it logically advances a material aspect of the proponent’s
case. Id. An expert’s testimony is admissible under Daubert so long as it is “based on
scientific techniques and advanced a material aspect of the government’s case.” See
Daubert, 509 U.S. at 589; Sherwood, 98 F.3d at 408. Under Daubert, the district court
acts as a “gatekeeper,” excluding “junk science” that does not meet the standards of
reliability required under Rule 702. Domingo ex rel. Domingo v. T.K., M.D., 276 F.3d
1083 (9th Cir. 2002) (citing Daubert, 509 U.S. at 589 and Gen. Elec. Co. v. Joiner, 522
U.S. 136, 142 (1997)). The trial court accomplishes this goal through a preliminary
determination that the proffered evidence is both relevant and reliable. Daubert, 509 U.S.
at 589-95.
In his Affidavit, Trooper Robertson has attached his report outlining his findings
and conclusions regarding the July 2, 2010 accident. (Dkt. 19, Ex. A.) In ruling on this
Motion, the Court did not need to consider Trooper Robertson’s Affidavit and/or report in
order to find a genuine issue of material fact exists so as to preclude entry of summary
judgment. The statements by the Gardners, the witness, and the police accident reports are
sufficient upon which this Court concludes that genuine issues of material fact exist. As
MEMORANDUM ORDER - 16

such, the Motion to Strike the Affidavit of Trooper Edward Robertson is denied. The
extent and scope of any testimony by Trooper Robertson at trial, if any, will be
determined at trial.
ORDER
NOW THEREFORE IT IS ORDERED as follows:
1)

Plaintiff’s Motion for Summary Judgment is DENIED (Dkt. 14).

2)

Plaintiff’s Motion to Strike is DENIED (Dkt. 24).

DATED: August 6, 2012

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM ORDER - 17