Hayes v. Metropolitan Property & Casualty Insurance Company

Filing 122

ORDER ON FINAL PRETRIAL CONFERENCE - estimated length of trial is 4 days; Non-Jury Trial set for 4/18/2017 at 09:00 AM in Courtroom 2, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Chief Judge Laurie Smith Camp. Ordered by Magistrate Judge F.A. Gossett. (GJG)

FI LED

US DISTRICT COURT

DISTRICT OF NEBRASKA

APR l 3 2017
OFFICE OF THE Cl.ERK
IN THE UN ITED STATES DISTRICT COURT
FOR THE DISTRI CT OF NEBRASKA
ER IC D. HA YES ,

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CASE NO. 8:14-cv-00339

v.

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FINAL PRETRIAL

METROPOLITAN PROPERTY &
CASUALTY INSURANCE COMPANY,

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Plaintiff,

Defendant.

ORDERO
CONFERENCE

A final pretrial conference was held on the 11th day of April 20 17. Appearing for the
parties as counsel were:
For Plaintiff:
C.G. (Dooley) Jolly, #21275
Patrick J. Sullivan , #20303
Adams & Sullivan, PC , LLO
1246 Golden Gate Dr., Suite I
Papillion, NE 68046-2843
[phone] Fax [phone] I
Jolly@ adamsandsull ivan.com
[e-mail]
For Defendant:
Michael L. Moran, #24042
Dan H. Ketcham, # 18930
ENGLES, KETCHAM, OLSON & KEITH, P.C.
1350 Woodmen Tower
Omaha, ebraska 68102
[phone] Fax [phone]

{A)

Exhibits. See attached Joi nt Exhibit List.

Caution: Upon express approval of the judge holding the pretrial conference for good
cause shown, the parties may be authorized to defer listing of exhibits or objections until
a later date to be specified by the judge holding the pretrial conference. The mere li sting
of an exhibit on an exhibit list by a party does not mean it can be offered into evidence by
the adverse party without al l necessary evidentiary prerequi sites being met.

(B)

Uncontroverted Facts.

The parties have agreed that the fo llowing may be

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

Plaintiff, Eric D . Hayes ("Hayes") was at a ll material times a resident of Springfield,
Sarpy County, Nebraska.

2.

Defendant, Metropolitan Property and Casualty Insurance Company (.. Mef") 1s an
insurance company licensed to transact busi ness in the State of Nebraska.

3.

On or about October 25 , 2007, a Homeowner Application for a Homeowners Insurance
Policy No. 8205839250 to insure property located at 480 South 6 Street, Springfield,
Nebraska (" insured property") was completed.

4.

On January 24, 20 13, the residence was destroyed by fire.

5.

At the time of the fire the insured property was insured under MetLife Auto & Home
Homeowners Insurance Policy (Policy No. 8205839250) with policy period November
17. 2012 to November 17. 2013 ("'the Policy"}

6.

On August 5, 20 14, Engles, on behalf of Met, sent to Plaintiffs counsel a letter stating
that Met was voiding the Policy ab initio based on Plaintiffs material mi srepresentation
in the insurance Application and that Met would pay the Springfield State Bank the
balance of the mortgage note for the Residence.

7.

Met issued a check to Plaintiff for $ 16,665.65 representing the return of all premiums
paid with interest. Such check was not accepted by Plainti ff.

8.

Plaintiff filed this action on October 17, 2014.

(C)
Controverted and Unresolved Issues. The issues remaining to be determined
and unresolved matters for the court· s attention are :

PLAINTIFF'S CONTROVERTED AND UNRESOLVED ISSUES
I.

Whether Defendant engaged in bad faith investigation. and/or handling of the Plaintiffs
claim.

2.

Whether Defendant had a reasonable basis to deny Plaintiff his benefits under the policy.

3.

The amount of Plaintiffs recovery including pre-judgment interests and attorney' s fees.

DEFENDANT'S CONTROVERTE D AND UNRESOLVED ISSUES

I . Whether rescission of an insurance policy voids the contractual relationship between an
insurer and its insured.
2. Whether the covenants of good faith and fair dealing are dependent on the existence of a
contractual relationship between and insurer and a claimant.
3. Whether a claim for bad faith against an insurance carrier can exist in the absence of an
insurance contract (i.e. policy) between the insurer and the one claiming bad faith.
4. Whether Defendant's rescission of the policy precludes Plaintiff from proving bad faith.

If the Court concludes that a claim for bad faith can exist in the absence of a contractual
relationship, the following issues are also controverted and unreso lved:

I . Whether a claimanrs claim under an insurance policy can be .. denied" when the policy
was voided.
2. Whether there is any claim under an insurance policy when the policy was voided from
inception.
3. Whether the doctrine of unclean hands bars Plaintiffs contention that the claim s
investigation was unnecessaril y prolonged when he routinely failed to provide
information when requested.
4. Whether Plaintiffs de lay in providing requested information to assist m the claims
investigation contributed to the length of the investigation.
5. Whether speci fic information developed in Mef s investigation provided a reasonable
basis that Plaintiff fraudulently caused or contributed to the loss.

6. Whether information developed m Met' s investigation provided a reasonable basis to
continue investigating.
7. The nature and extent of Plaintiffs recoverable damages under Nebraska law for the
claim pied.
[List all legal issues remaining to be determined, setting out in detail each element of the
claim or defense whi ch is genuinely controverted (including issues on the merits and
issues of jurisdiction, venue, joinder, valid ity of appointment of a representative of a
party, class action, substitution of parties. attorney"s fee and applicable law under which
it is claimed, and prejudgment interest). Specify any special damages or permanent
In any negligence action, specify elements of negligence and
injuries claimed.
contributory negligence, if any. Any other unresolved matters requiring the court' s
attention, such as possible consolidati on for trial , bifurcated trial s on specified issues, and
pending motions, shall also be listed .]

(D)
Witnesses. All witnesses, including rebuttal witnesses, expected to be called to
testify by plaintiff, except those who may be called for impeachment purposes as defined m
NECivR 16.2(c) only, are:
1. Eric D. Hayes
2. Roger Fauke
3. Andrea Aukamp
4. Bill Dillon
Dillon Construction
20104 Crestview Drive
Springfield, NE 68059
5. American Fence Company Custodian
15225 Industrial Road
Omaha, NE 68144
6. Heimes Corp. Records Custodian
9144 South 147 Street
Omaha, NE 68138
7. Justin Goldman
Goldman Construction
435 Vine Street
Springfield, E 68059
8. Mark Malloy

Meissner Tierney, Fisher & Nichols, PC
The Milwaukee Center
111
111 East Kilbourn Avenue, 19 Floor
Milwaukee, WI 53202
9. Any witness identified by Defendant
10. Any witness necessary for impeachment and/or rebuttal purposes
All witnesses expected to be call ed to testify by defendant, except those who may be
called for impeachment purposes as defined in NECivR 16.2(c) only, are:
1. Plaintiff, Eric D. Hayes, if necessary.
Address unknown
2. Roger Fauke, if necessary
700 Quaker Lane
Warick, RI 02886
3. Andrea Aukamp
700 Quaker Lane
Warick, RI 028 86
4. Dan Reist, if necessary
700 Quaker Lane
Warick, RI 02886
5. Mel Kessler, if necessary
1102 Fort Crook Road South
Bellevue, NE 68005
6. Mark Pollack
P.O. Box 45058
Little Rock, AR 722 14
7. Any witness identified by Plaintiff
8. Any witness necessary for impeachment
9. Any witness necessary for rebuttal

It is understood th at, except upon a showing of good cause, no witness whose name and
address does not appear herein shall be permitted to testify over objection for any purpose except
impeachment. A witness whose only testimony is intended to establish fo undation for an exhibit

for which foundation has not been waived shall not be pennitted to testify for any other purpose,
over objection, unless such witness has been di sclosed pursuant to Federal Rule of C ivil
Procedure 26(a)(3). A witness appearing on any party' s witness list may be called by any other
party.

(E)

Expert Witnesses' Qualifications. Experts to be called by plaintiff and their

qualifications are:
[Set out the qualifications of each person expected to be called as an expert witness. A
curriculum vitae or resum e may be attached in lieu of setting out the qualifications.]
Experts to be called by Plaintiff and their qualifications are:

•

Mark D. Malloy
111 East Kilbourn Avenue, 19111 Floor
Milwaukee, WI 53202
[phone]
See attached Resume

Experts to be called by Defendant and their qualifications are:

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Mark Pollack
P.O. Box 45058
Little Rock, AR 72214
[phone]
See attached Resume

(F)
Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure 47(a) and
NECivR 47.2(a) and suggest the fo llowing with regard to the conduct of juror examination:
Not applicable.
(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 of _ _ members.
Not applicable.
(H)
Verdict. The parties [will] [will not] stipulate to a less-than-unanimous verdict.
(If applicable). the parties' stipulati on is: _ _ _ _ _ _ _ _ _ _ __
Not applicable.

(I)
Briefs, Instructions, and Proposed Findings. Counsel have reviewed NECivR
39.2(a), 51.l(a), and 52.1 , and suggest the deadl ine should be 4-1 3-17 for filing trial briefs and
proposed findings of fact. Further, the parties are in agreement that designations of deposition
testimony should be exchanged by 4-14-17 with objections to the same exchanged by 4-18-17.
The Joint Exhibit List with objections is to be submitted by 5:00 p.m. on April 13, 2017.
(J)
Length of Trial. Counsel estimate the length of trial will consume not less than 3
day(s), not more than 4 day(s), and probably about 4 day(s).
(K)

Trial Date. Trial is set for April 18, 20 17.

ERIC D. HA YES, Plaintiff,
By:
Isl C.G. "Dooley" Jolly
C.G. (Dooley) Jolly, #2 1275
Patrick J . Sullivan, #20303
Adams & Sullivan, PC, LLO
1246 Golden Gate Drive, Suite I
Papillion, Nebraska 68046-2843
[phone] Fax [phone]
Attorneys for Plaintiff
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Defendant,
BY: s/ Michael L. Moran
ENGLES, KETCHAM, OLSON & KEITH, P.C.
1350 Woodmen Tower
Omaha, Nebraska 68102
[phone] Fax [phone]
Dan H. Ketcham , # 18930
[e-mail]
Michael L. Moran, #24042
[e-mail]