Kechi Township v. Freightliner, LLC et al
MEMORANDUM AND ORDER granting in part and denying in part 170 Motion to Exclude. Signed by District Judge Monti L. Belot on 1/16/2012. (rs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KECHI TOWNSHIP and EMPLOYERS
MUTUAL CASUALTY COMPANY,
FREIGHTLINER, LLC n/k/a DAIMLER
TRUCKS NORTH AMERICA LLC,
This case comes before the court on Daimler’s motion to exclude
Kechi’s evidence on damages.
(Docs. 169 and 170).
is granted in part and denied in part for the reasons herein.
Kechi has offered evidence from James Day, its shop supervisor,
to support its claim for damages as to the real estate, heavy
equipment, and all other shop equipment.
The court will address each
group of items in turn.
Daimler contends that this evidence is inadmissible because Day
is not an expert on real estate valuation, which Day has already
Kechi responds that it is not offering Day as an expert
Rather, Kechi asserts that as the owner of the property Day
can testify as to the value of the real estate.
Kechi cites several
cases in its brief including the general rule that “an owner, because
of his ownership, is presumed to have special knowledge of the
property and may testify as to its value.” United States v. Sowards,
370 F.2d 87 (10th Cir. 1966).
Daimler does not dispute this rule as a general proposition.
But it is clear from Kechi’s submissions and Day’s testimony that he
is not being offered even as a Rule 701 witness on the value of the
real estate before and after the fire, as the jury will be instructed.
Rather, Day will only base his testimony on an appraisal that was done
by Jess Anderson, an insurance adjuster whose qualifications are
But more to the point, Day’s testimony regarding Anderson’s
opinions clearly is hearsay.
Daimler’s motion to exclude Day’s
testimony as to the value of the real estate is granted.
Daimler objects to this alternative as it was not given notice of this
Anderson will presumably be tendered as an expert and would
testify pursuant to Rule 702. Kechi had an obligation to disclose its
expert witnesses several months ago and did not disclose Anderson.
Therefore, Anderson will not be permitted to testify.1
Daimler asserts that Day’s opinions should be excluded because
he was not disclosed as an expert witness2 and the testimony of the
value of the heavy equipment destroyed in the fire is technical and
Kechi previously objected to two expert witnesses disclosed on
Daimler’s final witness list because they had not been disclosed as
expert witnesses by the discovery deadline. The court granted Kechi’s
motion to exclude the testimony as these witnesses because Kechi did
not have proper disclosure. (Doc. 163).
Daimler does not object to Kechi’s position that an owner may
testify as to the value of their personal property. As a corporate
representative, Day is acting as the owner of the property that was
destroyed in the fire. Ultimate Chemical Co. v. Surface Trans. Int’l,
Inc., 232 Kan. 727, 658 P.2d 1008 (Kan. 1983).
specialized knowledge which may only be offered pursuant to Rule 702.
The court disagrees.
Kansas law provides, and the court will instruct, that the
measure of damages to personal property is the difference between its
fair and reasonable market value immediately before and immediately
after the damage.
Warren v. Heartland Auto. Servs., Inc.,
App.2d 758, 760 (2006). As discussed previously, an owner may testify
about the value of his personal property because he has special
Day has testified that he has more than thirty years
experience in heavy equipment.
Day also attends auctions and reads
magazines which list the value of heavy equipment.
Day has also
received an offer to purchase at least one of the pieces of heavy
equipment which was owned by Kechi.
Day’s knowledge is based on his
employment with Kechi and the day to day operation of the heavy
Daimler cites James River Ins. Co. V. Rapid Funding, LLC., 658
F.3d 1207 (10th Cir. 2011), for the proposition that an owner offering
technical opinions cannot be admitted under Rule 701.
however, discusses the valuation of business real property and not
personal property destroyed in a fire - a big distinction.
has already determined that Day may not offer testimony on the real
Day’s testimony may be somewhat specialized due to the fact that
an average juror probably is not familiar with the value of heavy
equipment. However, the testimony is not expert testimony in its true
form because Day is offering his opinion of its value as the owner of
the property. Thus, his testimony is admissible under Rule 701. Day,
however, must testify as to the market value prior to the fire and not
simply the replacement cost of the heavy equipment (with the exception
of the Gator, which was essentially new when it was destroyed). In
other words, Day’s testimony must conform to Kansas law.
All Other Property
As to the other property destroyed in the fire, Daimler moves to
exclude this testimony on the basis that Day will testify as to the
property’s replacement cost and not its market value.
that replacement cost evidence is proper and cites Kansas Power &
Thatcher, however, is clearly distinguishable.
In Thatcher, both
parties essentially agreed that replacement cost was the proper
This rule is only applicable when the property has no
market value prior to the loss. There has been no evidence that items
destroyed by the fire had no market value prior to the fire.
reviewing the list of items offered by Kechi, the court believes that
all of the items had a market value prior to the fire.
replacement cost evidence will not be admissible unless, as already
noted, a particular item was new at the time of the fire.
So again, Day may testify as to the value of the items destroyed
but only if his testimony is in accordance with Kansas law.
IT IS SO ORDERED.
Dated this 16th
day of January 2012, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
There is no such agreement in this case.
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