Auto Club Family Insurance Company v. Allgood et al

Filing 40

MEMORANDUM AND ORDER granting 38 Motion to Amend re: 37 Pretrial Order. As set out more fully in the memorandum, the Court modifies the pretrial order so as to include a damage claim by Defendants for loss of use. In addition, no later than Mar ch 16, 2012, Defendants shall serve Plaintiff with relevant disclosures for their claim for loss of use, as required by Fed. R. Civ. P. 26(a)(1)(A)(iii). The Court also grants Plaintiff until April 30, 2012, to complete any further discovery solely on the added issue of loss of use. The Court directs Defendants to co-operate with Plaintiff to facilitate and complete such additional discovery, which may include convening or reconvening deposition(s) of either or both Defendants solely for discovery on this issue. See Memorandum and Order for additional details. Signed by Magistrate Judge Gerald L. Rushfelt on 3/5/2012. (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AUTO CLUB FAMILY
INSURANCE COMPANY,
Plaintiff,
vs.
ELAINE ALLGOOD, et al.
Defendants.

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Case No.: 11-CV-2079-GLR

MEMORANDUM AND ORDER
Plaintiff filed this action for a declaration that Defendants are not entitled to insurance
benefits for a fire loss to their residential property. Plaintiff contends Defendants intentionally
caused the loss. Defendants have asserted a counterclaim for breach of contract.1 They seek
compensation for the structural damage to their house and for loss of personal property.2 Before the
Court is a Motion to Amend Pretrial Order (ECF No. 38). Defendants seek to amend the pretrial
order to include the following damage claim: “Loss of use - Additional Living Expense/Fair Rental
Value - $875.00 per month from November 6, 2009 through the date the claim is paid. ($21,875.00
through December 6, 2011).” Plaintiff opposes the proposed amendment. For the reasons set out
below, the motion is granted.
I.

Background
The complaint shows that the policy provides coverage for loss of use.3 In their counter-

claim, Defendants state: “Plaintiff is indebted to [them] pursuant to the terms of the policy for all

1

Pretrial Order (ECF No. 37) ¶ 2.

2

See id ¶ 10(b).

3

Compl. (ECF No. 1) ¶¶ 8-9.

damages they sustained in the subject fire.”4 They initially prayed “for judgment against Plaintiff
on their Counterclaim in a sum reasonably necessary to compensate them for all losses and damages
they sustained as a result of the above-referenced fire.”5
After considering a jointly submitted, proposed order and conducting a pretrial conference,
the Court entered its Final Pretrial Order. It itemizes the alleged damages to real property and loss
of personal property.6 Defendants did not assert damages for loss of use at the final pretrial
conference. They informally proposed to add that damage claim during a review period preliminary
to entry of the final pretrial order. Plaintiff objected to the proposed addition. And the Court
declined at that point to include it. It entered the final pretrial order, consistent with the matters
addressed at the pretrial conference. On the following day Defendants filed the instant motion to
amend the pretrial order. Plaintiff opposes it. The motion is fully briefed and ready for ruling.
II.

Analysis
Defendants contend their failure at the final pretrial conference to include their claim for loss

was merely an oversight. They point to broad language in their counterclaim to show they seek
compensation for all losses resulting from the fire. Plaintiff argues that Defendants have not shown
that a denial of the motion will result in manifest injustice.
The Court may modify a final pretrial order “only to prevent manifest injustice.”7 The party

4

Answer & Counterclaim (ECF No. 5) ¶ 22.

5

Id. at 5.

6

Pretrial Order ¶ 10(b).

7

Fed. R. Civ. P. 16(e); accord D. Kan. Rule 16.2(c) (recognizing that the final pretrial order
“controls the subsequent course of the action unless modified by (1) consent of the Court and all
parties or (2) a court-order to prevent manifest injustice).
2

moving to modify the pretrial order bears the burden of demonstrating the applicability of manifest
injustice.8 Courts look at four factors to determine whether to amend or modify a pretrial order: “(1)
prejudice or surprise to the party opposing trial of the issue; (2) the ability of that party to cure any
prejudice; (3) disruption to the orderly and efficient trial of the case by inclusion of the new issue;
and (4) bad faith by the party seeking to modify the order.”9
The Court finds that the application of each of these four criteria favors allowing the
proposed amendment. Nothing before the Court shows bad faith by movants. Modifying the pretrial
order would not interfere with an orderly and efficient trial, because the added claim for loss-of-use
damages will not add significantly to the time required for trial. Trial remains two months away.
The Court is not convinced, moreover, that the late addition of this limited claim for loss of
use creates any prejudice of consequence to Plaintiff. It does not affect the dominant issues in this
case, which more importantly address the question of whether or not the insurance affords coverage
for any of the claimed losses. Whatever prejudice Plaintiff may suffer by the proposed amendment
can be readily cured by requiring prompt service of any additional disclosures and a brief re-opening
of discovery for the sole purpose of addressing the proposed damages for loss of use.
For the foregoing reasons, the Court grants the Motion to Amend Pretrial Order (ECF No.
38) filed by Defendants. The Pretrial Order (ECF No. 37) is hereby amended to include the following damage claim for Defendants in paragraph 10(b): “Loss of use - Additional Living Expense/Fair
Rental Value - $875.00 per month from November 6, 2009 through the date the claim is paid.
($21,875.00 through December 6, 2011).” No later than March 16, 2012, Defendants shall serve

8

Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000).

9

Id.
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Plaintiff with relevant disclosures for their claim for loss of use, as required by Fed. R. Civ. P.
26(a)(1)(A)(iii). The Court also grants Plaintiff until April 30, 2012, to complete any further
discovery solely on the added issue of loss of use. The Court directs Defendants to co-operate with
Plaintiff to facilitate and complete such additional discovery, which may include convening or
reconvening deposition(s) of either or both Defendants solely for discovery on this issue.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 5th day of March, 2012.

s/Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

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