Cactus Drilling Company LLC v. National Union Fire Insurance Company of Pittsburgh Pa et al

Filing 211

ORDER granting in part and denying in part 135 defendants' motion to strike plaintiff's affidavit evidence in support of plaintiff's motion for partial summary judgment and striking paragraph 6 of the Affidavit of Kathy Willingham (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 10/29/2013. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CACTUS DRILLING COMPANY, LLC,
Plaintiff,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA and
CHARTIS CLAIMS, INC.,
Defendants.

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Case No. CIV-12-00191-M

ORDER
Before the Court is Defendants’ Motion to Strike Plaintiff’s Affidavit Evidence in Support
of Plaintiff’s Motion for Partial Summary Judgment, filed on May 05, 2013. On June 21, 2013,
plaintiff filed its response, and on June 28, 2013, defendants filed their reply. Based upon the
parties’ submissions, the Court makes its determination.
Defendants move to strike the affidavit of Kathy Willingham1 (“Willingham”), which is
attached as Exhibit 1 to plaintiff’s Motion for Partial Summary Judgment. Federal Rule of Civil
Procedure 56(e)(1) provides: “An affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible evidence, and show that the
affiant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Thus, an affidavit is
inadmissible where the witness testifies to an event she could not have actually perceived or
observed. Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)
(citations omitted).
Defendants assert that the affidavit of Willingham should be stricken because Willingham

1

Kathy Willingham is Cactus’ Vice-President of Human Resources & Health Safety
Environment.

has no qualification to opine as to coverage and compliance requirements. Specifically, defendants
object to paragraph 4 of the affidavit where Willingham testifies that National Union failed to give
any notice that the Employer’s Liability/Stop Gap Coverage Limitation Endorsement with
Substantial Certainty Exclusion (“endorsement clause”) included in the 2006-07 Policy would not
be included in the renewal polices. Defendants contend that her statement is incorrect and amounts
to a legal conclusion.2 In addition, defendants object to paragraph 5 of the affidavit where
Willingham testifies that plaintiff purchased the National Union coverage expecting that the policy
would apply to claims against plaintiff by employees in Oklahoma and that had plaintiff known the
policy did not provide coverage for such claims, plaintiff would not have purchased the said policy.
Defendants contend that this is speculative testimony, especially since Willingham has not identified
any other excess coverage policy Cactus could have bought. Lastly, defendants object to paragraph
6 of the affidavit where Willingham recites facts relating to the underlying litigation that gave rise
to this insurance coverage dispute. Defendants contend that this is also improper testimony because
she is not a fact witness to the incident and does not have the personal knowledge to testify to the
actual facts themselves in the underlying incident.
Having reviewed the parties’ submissions, the Court finds that Willingham’s affidavit
testimony should not be stricken. Specifically, the Court finds that the affidavit makes it clear that
Willingham was responsible for selection, acquisition, and purchase of insurance for plaintiff during
the relevant time periods. The Court, therefore, finds that Willingham is precisely the person that
has the personal knowledge to testify on whether Cactus received any notice from defendants

2

Defendant asserts “notice” in this case is a legal issue, therefore, Willingham’s
testimony on “notice” is a legal conclusion.
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regarding the elimination of the endorsement clause in the post 2006-07 policies. In addition,
because of her position, Willingham may also testify about Cactus’ expectation with respect to the
policies at issue. Accordingly, the Court finds that Willingham’s testimony in paragraphs 4 and 5
is neither speculative nor legally conclusive statements, but rather, proper testimony based on her
personal knowledge.
However, the Court finds that Willingham’s testimony in paragraph 6 should be stricken
because she has not shown that she has personal knowledge of the underlying litigation. Plaintiff’s
and Willingham’s conclusory statements that Willingham has personal knowledge of the underlying
litigation and was intimately involved in the management of the underlaying litigation is not
sufficient. Accordingly, the Court finds that paragraph 6 of the Affidavit of Kathy Willingham’s
testimony should be stricken.
Accordingly, for the reasons set forth above, the Court GRANTS in part and DENIES in part
Defendants’ Motion to Strike Plaintiff’s Affidavit Evidence in Support of Plaintiff’s Motion for
Partial Summary Judgment [docket no. 135] and STRIKES paragraph 6 of the Affidavit of Kathy
Willingham.
IT IS SO ORDERED this

29th

day of October, 2013.

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