BURKA, MD v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY et al

Filing 56

ORDER ON MOTION FOR RECONSIDERATION denying 51 Motion for Reconsideration By JUDGE D. BROCK HORNBY. (clp)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DOUGLAS BURKA, MD,
PLAINTIFF
V.

GARRISON PROPERTY AND
CASUALTY INSURANCE COMPANY
AND UNITED SERVICES
AUTOMOBILE ASSOCIATION
INSURANCE COMPANY,
DEFENDANTS

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CIVIL NO. 2:20-CV-172-DBH

ORDER ON MOTION FOR RECONSIDERATION
Insurer USAA has filed a motion to reconsider my February 22, 2021,
Decision and Order on Cross-Motions for Summary Judgment (ECF No. 46).
Mot. to Reconsider (ECF No. 51).

Because I adequately treated all USAA’s

arguments in my original order, I DENY the motion with this one additional
comment addressing a recent case.
In its “Notice of Supplemental Authority in Support of Motion to
Reconsider” (ECF No. 52), USAA contends that my refusal to consider its
purported cancellation notice was error in light of a First Circuit decision issued
after my order, Joseph v. Lincare, Inc., 989 F.3d 147 (1st Cir. 2021). Lincare is
distinguishable.

In that case, Lincare had provided Joseph three company

documents in response to Joseph’s explicit discovery requests. The First Circuit
remarked:
[W]hen Joseph sought to use the documents as being what
they appeared to be, Lincare never offered any suggestion
that it had produced unauthentic documents. Rather, it
simply played “gotcha,” waiting until discovery was over to

challenge authenticity by arguing that Joseph had failed to
obtain an express admission of authentication by Lincare of
its employees who created the documents. In rewarding this
gambit, the district court erred.

Id. at 157. Thus, it was Lincare that produced the documents in discovery and
Lincare that later, once discovery was complete, challenged their authenticity.
The court stated:
Discovery is expensive enough without adding make-work.
When a party in response to discovery requests points to a
document that appears on its face to be a business record of
the producing party, the other parties should be able to treat
the document as authentic unless someone offers some
reason to think otherwise, before it is too late to do something
about it.

Id. at 156-57. That reasoning simply does not apply here. USAA produced the
purported notice for the first time by attaching it to its objection to Burka’s crossmotion for summary judgment without any evidentiary foundation, and Burka
objected to the notice’s authenticity. See Defs.’ Opposing Statement of Material
Facts, Additional Facts ¶ 1 (ECF No. 36) (asserting that the policy was cancelled
by Burka effective May 1, 2015); Pl.’s Reply to Defs.’ Additional Facts ¶ 1 (ECF
No. 39) (denying and stating “The only support submitted for this purported fact
is a document that USAA asserts it issued. The document is not submitted as a
business record or otherwise supported by an Affidavit.”).
The motion for reconsideration is DENIED.
SO ORDERED.
DATED THIS 27TH DAY OF APRIL, 2021
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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