Herrick et al v. State Farm Fire & Casualty Company

Filing 52

PRETRIAL ORDER - estimated length of trial is 4 days; Jury Trial set for 8/29/2011 at 09:00 AM in Courtroom 1, Federal Building, 100 Centennial Mall North, Lincoln, NE before Judge Richard G. Kopf.Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEN HERRICK AND VERONICA
HERRICK,
Plaintiffs,
vs.
STATE FARM FIRE & CASUALTY
COMPANY,
Defendant.

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Case No. 4:09CV405

ORDER ON
FINAL PRETRIAL
CONFERENCE

A final pretrial conference was held on the 18th day of August, 2011. Appearing
for the parties as counsel were:
Attorney for the Plaintiffs:
Thomas G. Lieske (15565)
333 North Colorado Avenue
P.O. Box 268
Minden, NE 68959
308-832-2103
Fax [phone]
[e-mail]
Attorney for the Defendant:
Rex A. Rezac (17787)
Fraser Stryker PC LLO
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
402-341-6000
Fax [phone]
[e-mail]
(A)

Exhibits. See attached Exhibit List.

The parties' exhibit lists, completed to list all
exhibits and objections thereto, will be filed
by 5:00 p.m. on August 23, 2011.

(B)

Uncontroverted Facts. The parties have agreed that the following may

be accepted as established facts for purposes of this case only:
1.

This Court has jurisdiction under 28 U.S.C. 1332.

2.

The Plaintiffs are residents of Franklin, Franklin County, Nebraska.

3.

Defendant is an insurance company qualified to do business in the State

of Nebraska.
4.

All acts occurred in Franklin County, Nebraska.

5.

Defendant issued a Farm and Ranch insurance policy to Plaintiffs, which

included coverage for a residential dwelling on farm property owned by Plaintiffs in
Franklin County, Nebraska.
6.

The policy was in effect on January 26 2009.

7.

On or about January 26, 2009, a fire occurred at the residential dwelling

on the farm property.
8.

Plaintiffs filed a claim with Defendant for the loss sustained on January 26,

9.

On or about July 13, 2009, Defendant denied coverage to Plaintiffs for

2009.
their loss.
(C)

Controverted and Unresolved Issues.

The issues remaining to be

determined and unresolved matters for the court's attention are:
Plaintiffs' Claim
1.

Plaintiffs reasonably relied on the representations of the Defendant in

inducing Plaintiffs to purchase a contract of insurance on the insured premises.
2.

Plaintiffs at all times complied with the requirements of the contract of

insurance issued by the Defendant.
3.

Defendant, pursuant to the contract of insurance issued, did not

reasonably and properly investigate the loss sustained by the Plaintiffs.
4.

As a result of Defendant's actions, the investigation is incomplete,

improperly done and inaccurate in its conclusions.

In light of the court's summary judgment ruling, plaintiff's controverted issues
3 and 4 have been deleted with the agreement of counsel. The plaintiff is not
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thereby waiving any right to appeal the court's ruling on summary judgment and
the corresponding deletion of those issues from the trial of this case.

5.

Defendants, therefore, breached the contract of insurance with the

Plaintiffs and are liable in damages to the Plaintiffs according to the limits of coverage
contained within the contract of insurance between the parties.
6.

Damages sustained by the Plaintiffs would be in the amount of the policy

limits or $90,500.00.
Defendant's Affirmative Defenses
The issues remaining to be determined and unresolved matters for the court’s
attention are whether:
1.

Whether the fire was "accidental."

2.

Whether Plaintiffs caused or procured a loss to covered property for the

purpose of obtaining insurance benefits, thereby voiding the insurance policy.
3.

Whether Plaintiffs intentionally concealed or misrepresented any material

fact or circumstance related to the insurance, thereby voiding the insurance policy.
(D)

Witnesses. All witnesses, including rebuttal witnesses, expected to be

called to testify by Plaintiffs, except those who may be called for impeachment purposes
as defined in NECivR 16.2(c) only, are:
1. Len Herrick

Will be present.

Franklin NE 68939
2. Veronica Herrick

Will be present.

Franklin NE 68939
3. Dale Mertens

Will be present.

Franklin NE 68939
4. Jenny Mertens

Will be present.

Franklin NE 68939
5. Lee Frerichs

Will be present.

Bloomington NE 68929
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6. All witness listed by Defendant

May call.

7. Any witness required for foundational purposes

May call.

All witnesses expected to be called to testify by Defendant, except those who
may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:
Michael J. McCarthy
Team Manger
Special Investigative Unit
State Farm Fire and Casualty Company
Omaha Operations Center
P.O. Box 83106
Lincoln, NE 68501
[phone]

May call

Leonard Herrick

Will call

Franklin, NE 68939
Patsy Herrick

Will call

Franklin, NE 68939
Richard Herrick

Will call

Franklin, NE 68939
Marilyn Herrick

Will call

Franklin, NE 68939
Lee Herrick

Will call

Franklin, Nebraska 68939
Dave Ohlin
State Farm Fire and Casualty Company
State Farm Special Investigative Unit
P.O. Box 83106
Lincoln, NE 68501
[phone]

May call

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Matthew John
State Farm Special Investigative Unit
P.O. Box 83106
Lincoln, NE 68501
[phone]

Will call

Lad Petit
State Farm Special Investigative Unit
P.O. Box 83106
Lincoln, NE 68501
[phone]

May call

All witnesses listed by Plaintiffs
Any witness required for foundational
purposes

May call
May call

Expert witnesses listed below

Will call

(E)

Expert Witnesses' Qualifications. Experts to be called by Plaintiffs and

their qualifications are:
1. Deputy State Fire Marshall Marty Nielan

Will be present.

Gibbon, NE 68840
Experts to be called by Defendant and their qualifications are:
Ken Ward
Fire Investigation Specialists, Inc.
4848 Lockwood Circle
Omaha, NE 68152
[phone]
Curriculum vitae previously provided.
Todd Hartzler, P.E.
Independent Forensic
Investigations Corporation
305 99th
Urbandale, Iowa 50322
[phone]
Curriculum vitae previously provided.
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(F)

Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure 47(a)

and NECivR 47.2(a) and suggest the following with regard to the conduct of juror
examination:
The Court shall conduct initial voir dire of the potential jurors to inquire of the
name of each potential juror, the name of such juror's spouse, and the place of such
juror's employment.

Counsel for both parties shall then be permitted to examine

potential jurors.
(G)

Number of Jurors.

Counsel have reviewed Federal Rule of Civil

Procedure 48 and NECivR 48.1 and suggest that this matter be tried to a jury composed
The parties have been instructed to review Judge Kopf's standard
of 12 members. jury practices, and advised the jury will be composed of 7 or 8 jurors.
(H)

Verdict. The parties will not stipulate to less-than-unanimous verdict.

(I)

Briefs, Instructions, and Proposed Findings. Counsel have reviewed

NECivR 39.2(a), 51.1(a), and 52.1, and suggest the following schedule for filing trial
briefs, proposed jury instructions, and proposed findings of fact, as applicable:
Trial briefs, proposed jury instructions, and proposed findings of fact shall be filed
five (5) days before the first day of trial. Trial briefs and proposed jury instructions will be filed
(J)

on August 24, 2011.

Length of Trial. Counsel estimate the length of trial will consume not less

than 3 days, not more than 5 days, and probably about 4 days.
(K)

Trial Date. Trial is set for August 29 through September 1, 2011.

Attorney for Plaintiffs
Thomas G. Lieske (15565)
333 North Colorado Ave.
P.O. Box 268
Minden, NE 68959
308-832-2103
Fax [phone]
[e-mail]

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Attorney for the Defendant
Rex A. Rezac 17787
Fraser Stryker PC LLO
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
402-341-6000
Fax [phone]
[e-mail]

8/18/2011
BY THE COURT:

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