Lath v. Manchester Police Department et al

Filing 405

ORDER denying without prejudice 391 Motion for Summary Judgment; denying 396 Motion to Strike 392 Memorandum in Support of Motion; denying 404 Motion for Hearing. Amicas motion for summary judgment is denied without prejudice to the extent it seeks to preclude Lath from seeking certain categories of damages. The court holds its ruling on Amicas motion for summary judgment as to liability in abeyance as provided in this order. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Sanjeev Lath
v.

Civil No. 16-cv-534-LM
Opinion No. 2020 DNH 015

Manchester Police Department et al.
O R D E R
Sanjeev Lath, proceeding pro se, brought claims in this
case against 17 defendants in 27 counts.

He asserted claims

arising out of several alleged incidents that took place during
his tenure as a unit owner in the Oak Brook Condominium (“Oak
Brook”).

Relevant to this order, Lath asserted five counts

against Amica Mutual Insurance Co. (“Amica”) arising out of
Amica’s denial of insurance coverage for a fire that occurred in
Lath’s condominium unit.
all of Lath’s claims.

Amica moves for summary judgment on

Lath objects.1

STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.”

Fed. R. Civ.

Lath also moves to strike an exhibit attached to Amica’s
motion for summary judgment (doc. no. 396) and asks the court to
hold a hearing to clarify an issue in the case (doc. no. 404).
The court addresses both these motions below.
1

P. 56(a).

In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to
the nonmovant.

Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,

115 (1st Cir. 2013).

BACKGROUND
On December 15, 2016, there was a fire in Lath’s
condominium unit in Oak Brook, which damaged the unit as well as
Lath’s personal property.

The following day, Lath provided

notice of the fire and resulting damage to Amica, with whom he
had a homeowner’s insurance policy (the “Policy”).
Amica assigned Lath’s claim to one of its adjusters.

On

December 30, 2016, after the adjuster had begun his
investigation of the circumstances of the fire as well as the
nature and extent of Lath’s claimed damages, Amica’s counsel,
Michael Snyder, sent Lath a letter by email and regular mail.
The letter gave Lath notice of Amica’s election to take his
examination under oath, as allowed under the Policy.

The

examination was scheduled for January 18, 2017 at the law
offices of Craig and Gatzoulis.
On December 30, 2016, the day Amica’s counsel emailed the
letter to Lath, Lath responded by email.

Lath stated: “I will

not be appearing for an examination under oath.”
at 2.

Doc. no. 392-5

Lath further stated that the “policy only requires a

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written affidavit which was provided to Amica” and reiterated:
“Again, I do not consent and will not consent to such an
examination under oath.”

Id.

On January 3, 2017, Attorney Snyder sent Lath a follow-up
letter.

The letter referred Lath to the specific provision of

the Policy which required Lath to provide Amica with records and
documents it requests and submit to an examination under oath.
The letter further referenced Lath’s apparent concerns that
Attorney Snyder is “affiliated” with Michael Craig, at whose law
office Lath’s examination was to be taken.

Although Attorney

Snyder denied any affiliation with Attorney Craig, he moved the
location of Lath’s examination to the Courtyard by Marriot in
Manchester, New Hampshire.
Lath received the January 3 letter but did not appear for
his examination on January 18 as scheduled.

Amica denied Lath’s

claim due to his failure to appear for an examination under
oath.

DISCUSSION
Lath asserts five claims against Amica: (1) Civil
Conspiracy, in which Lath alleges that Amica conspired with Oak
Brook and various tenants to harass him and damage his property
(Cause 19); (2) Breach of contract (Cause 24); (3) Breach of the
implied covenant of good faith and fair dealing (Count 25); (4)

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deception (Count 26); and (5) invasion of privacy (Count 27).
Amica moves to dismiss all of Lath’s claims against it, arguing
that Lath’s failure to comply with his duties under the Policy
precludes him from bringing any of his claims.

Amica also

contends that even if Lath could proceed with his claims, his
discovery violations prevent him from seeking certain categories
of damages.

I.

Liability
Section I (entitled “Duties After Loss”), paragraph C(7) of

the Policy provides:
In case of a loss to covered property, we have no duty
to provide coverage under this policy if the failure
to comply with the following duties is prejudicial to
us. These duties must be performed either by you, an
insured seeking coverage, or a representative of
either:
As often as we reasonably require:
a.
Show the damaged property;
b.
Provide us with records and documents we request
and permit us to make copies; and
c.
Submit to examination under oath, while not in
the presence of an other insured, and sign the same.
Doc. no. 392-1 at 22.

Paragraph H of Section I (entitled “Suits

Against Us”) states: “No action can be brought against us unless
there has been full compliance with all of the terms under
Section I of this policy and the action is started within two
years after the date of loss.”

Id. at 23.

4

The New Hampshire Supreme Court addressed a nearly
identical set of provisions in an insurance contract.

The

supreme court noted that the
purpose of an EUO2 provision is to enable the carrier
to possess itself of all knowledge, and all
information as to other sources and means of
knowledge, in regard to the facts, material to their
rights, to enable them to decide upon their
obligations, and to protect them against false claims.
The EUO provides a mechanism for the insurer to
corroborate the claim by obtaining information that is
primarily or exclusively within the possession of the
insured.
Krigsman v. Progressive N. Ins. Co., 151 N.H. 643, 648 (2005)
(internal quotation marks and citations omitted).
The supreme court held:
The policy unambiguously states that the insured must
allow Progressive to take an examination under oath
and that Progressive may not be sued unless there is
full compliance with all of the policy terms,
including the EUO provision. A reasonable person in
the petitioner's position would interpret the policy
as requiring compliance with the EUO request prior to
filing suit. Thus, we conclude that the language of
the petitioner's policy makes submission to a
reasonable request for an EUO a condition precedent to
filing suit.
Id. (internal citation omitted).

The court further held that

the insurer did not need to show prejudice from the insured’s
refusal to submit to an examination under oath.

Id.

There is no dispute that Lath failed to attend the
examination under oath scheduled for January 18.

2

EUO stands for “examination under oath.”
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Nevertheless,

Lath argues that Amica is not entitled to summary judgment for
several reasons, including that the court should not consider
any of Amica’s exhibits, that he did submit to a separate
examination under oath, and that he asked Amica to reschedule
his examination under oath but Amica refused.

A.

Exhibits

Lath’s primary argument is that the court should not
consider any of the exhibits included with Amica’s motion for
summary judgment because of various alleged evidentiary
failings.3

Although Lath’s challenges to the exhibits are

meritless, the court notes that Lath does not dispute the crux
of Amica’s argument: the Policy required Lath to submit to an
examination under oath before bringing suit and he did not
attend the scheduled January 18 examination.

The court will

therefore focus only on resolving the crux of the dispute.

As

such, the court need not address further Lath’s challenges to
Amica’s exhibits.

Lath also moves to strike one of the exhibits, document
no. 392-3, which provides his answers to Amica’s first set of
interrogatories. Lath asserts that this document contains his
social security number and date of birth and should have been
redacted. As Amica notes and Lath does not dispute, this
information is already included in the record in documents Lath
attached to his amended complaint. Therefore, Lath’s motion to
strike is denied.
3

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B.

Other Examination Under Oath

Although Lath admits he did not attend the January 18
examination, he asserts that he did submit to an examination
under oath.

Lath states that shortly after the fire, he met

with Amica’s cause and origin investigator, Sebastian Bongiorno,
a meeting that was in the presence of Paul King, Manchester’s
Fire Marshal.

According to Lath, this was an “examination” that

satisfies his obligation under the Policy.
Lath’s argument is misplaced.

Even if the initial meeting

with Bongiorno could be classified as an “examination” under the
policy, Lath does not claim that the examination was under oath.

C.

Lath’s Request to Reschedule the Examination

Lath states in an affidavit attached to his objection that
on “January 12, 2019, I requested Attorney Michael Snyder to
reschedule the examination as I was sick, and my request for
time off from work, to attend the examination was denied.

I

never received any confirmation or follow up on my request to
reschedule this examination.”

Doc. no. 397-1 at 1.

In other

words, Lath claims that Amica denied his insurance claim based
on his failure to attend an examination under oath but refused
to reschedule the examination when Lath could not attend.
As noted, “submission to a reasonable request for an EUO
[is] a condition precedent to filing suit.”

7

Krigsman, 151 N.H.

at 648.

“Reasonableness is a fairly low threshold in this

context.”

Lessard v. EMC Ins. Companies, No. 10-CV-302-JL, 2011

WL 3652507, at *4 (D.N.H. Aug. 17, 2011).

If Amica refused to

accommodate Lath’s one request to reschedule his examination,
however, a rational factfinder viewing the record in the light
most favorable to Lath could conclude that Amica’s request for
an examination under oath was unreasonable.

See id. (denying

insurer’s motion for summary judgment based on plaintiff’s
failure to submit to an examination under oath because whether
insurer’s lengthy delay in requesting the examination was
“reasonable” was a jury question).
The only evidence of Amica’s purported failure to
accommodate Lath’s request to reschedule his examination is a
statement in Lath’s unsworn statement, titled “Affidavit of
Sanjeev Lath.”

See doc. no. 397.

The unsworn “affidavit,”

however, does not comply with 28 U.S.C. § 1746 and is not
competent evidence to defeat summary judgment.4

See, e.g., Bayad

v. Chambers, No. CIV A 04-10468-PBS, 2005 WL 6431855, at *2 n.9
(D. Mass. Dec. 20, 2005).
In light of Lath’s pro se status, however, the court holds
its ruling on Amica’s summary judgment motion as to liability in
abeyance.

Within two weeks of the date of this order, Lath may

For example, Lath’s declaration is not signed under
penalty of perjury.
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submit either a sworn statement or an unsworn declaration under
penalty of perjury in compliance with 28 U.S.C. § 1746,
supporting his statement that he asked Amica, through Snyder, to
reschedule his examination under oath and Amica declined to do
so.

If Lath does not submit such a filing on or before February

13, 2020, the court will rule on Amica’s motion based on the
current record.

II.

Damages
Amica argues that it is entitled to summary judgment

because Lath has refused to comply with court orders relating to
the production of signed authorizations allowing Amica to
explore his claim for damages.

Specifically, Amica states that

Magistrate Judge Johnstone has issued multiple discovery orders
requiring Lath to produce signed authorizations for Amica to
access his medical and/or employment records.

Although Lath

purportedly executed an authorization in early 2019, he
subsequently revoked that authorization.

Amica argues that

Lath’s behavior entitles it to summary judgment to the extent
Lath seeks consequential damages in the form of personal
injuries, medical expenses, or lost wages.
In his objection, Lath disputes Amica’s contention, stating
that he has completed all authorizations for the release of his
medical and/or employment records.

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In response, Amica submits a

November 24, 2019, email from Lath to Amica’s counsel with the
subject “withdraw all my releases.”

Doc. no. 401 at 5.

In the

body of the email, Lath writes “I am withdrawing all my releases
. . .”

Id.

In response, Lath claims that he provided one set of
releases to both Amica and co-defendant BMS Cat Inc., as agreed
by the parties during a February 19, 2019 case management
conference.

Lath claims that BMS Cat Inc. has received all

pertinent documents, and that after production was complete, he
withdrew the releases.
The court will revisit the issue of Lath’s authorizations
at the final pretrial conference.

To the extent Lath failed to

comply entirely with the Magistrate Judge’s discovery orders,
Lath will be precluded from seeking consequential damages at
trial.5

CONCLUSION
For the foregoing reasons, plaintiff’s motion to strike
(doc. no. 396) and motion for a hearing (doc. no. 404) are
denied.

Amica’s motion for summary judgment (doc. no. 391) is

Lath separately moves for the court to schedule a hearing
to clarify if Amica has received his medical records. Doc. no.
404. The court denies that motion. The parties may confer to
resolve their dispute concerning Lath’s records or the court
will address the issue at the final pretrial conference.
5

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denied without prejudice to the extent it seeks to preclude Lath
from seeking certain categories of damages.

The court holds its

ruling on Amica’s motion for summary judgment as to liability in
abeyance as provided in this order.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
January 30, 2020
cc:

Pro se Party and Counsel of Record

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