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

Filing 255

ORDER denying 215 plaintiff's objection to and motion to strike amended declaration of David Rhodes and accompanying exhibits (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 12/12/2013. (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.
)

Case No. CIV-12-00191-M

ORDER
Before the Court is Plaintiff’s Objection To and Motion To Strike Amended Declaration
of David Rhodes and Accompanying Exhibits, filed on November 7, 2013. On November 27,
2013, defendants filed their reply, and on December 05, 2013, plaintiff filed its reply. Based
upon the parties’ submissions, the Court makes its determination.
This matter arises out of an insurance dispute between the insured Cactus Drilling
Company, LLC (“plaintiff”) and the insurer National Union Fire Insurance Company and its
claims administrator Chartis Claims, Inc. (collectively “defendants”).

On April 01, 2013,

plaintiff filed a Partial Motion for Summary Judgment. On May 31, 2013, defendants filed their
response brief with a Declaration Affidavit of Rhodes and accompanying letters attached as an
exhibit.

On November 01, 2013, the Court allowed defendants to amend the Declaration

Affidavit of Rhodes (“Rhodes’ Affidavit”). Plaintiff now moves the Court to strike Rhodes’
Affidavit and the accompanying letters.
Federal Rule of Civil Procedure 56(c)(4) 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).
Plaintiff moves the Court to strike Rhodes’ Affidavit on grounds that: (1) Rhodes failed
to establish that he has the requisite personal knowledge; (2) Rhodes’ Affidavit and its
accompanying letters are irrelevant and, thus, inadmissible; and (3) defendants have abused the
discovery process1 and, thus, should not be permitted to use the affidavit.
Having reviewed the parties’ submissions, the Court finds that Rhodes’ Affidavit should
not be stricken. First, the Court finds that Rhodes2 has established that he has the requisite
personal knowledge. Specifically, Rhodes states, in his affidavit, that AIG was the underwriter
for National Union on the policies at issue here; that he has been employed by AIG Property
Casualty for fourteen (14) years; in his position, he is familiar with and has reviewed the
underwriting files for the pertinent policies at issue; and he is the custodian of such records.
Accordingly, the Court finds that Rhodes’ Affidavit should not be stricken on this ground.
In addition, the Court finds that Rhodes’ Affidavit and its accompanying letters are
relevant. Specifically, the Court finds that one of the issues raised in this lawsuit is whether
defendants were legally required to provide notice to plaintiff regarding the alleged change in the
insurance policies defendants issued to plaintiff and, if so, whether defendants provided such
notice. Defendants offer these letters in attempt to show that, notwithstanding their belief that
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The Court rejects plaintiff’s invitation to strike Rhodes’ Affidavit on this ground. As asserted in
all the discovery motions filed in this case by both parties, the parties again engage in a back and
forth exchange asserting that the opposing party is abusing the discovery process through their
obstructionist or bad faith behavior. The Court declines to entertain the parties’ constant back
and forth allegations.
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The Court also notes that Rhodes has been designated as defendants’ Rule 30(b)(6) Corporate
Representative and deposed by plaintiff.
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they were not legally required to provide notice to plaintiff, defendants did provide sufficient
notice to plaintiff of any changes in the policies thereby impeaching plaintiff’s contention that it
did not receive such notice.3 The Court, therefore, finds that these letters are relevant and, thus,
Rhodes’ Affidavit should not be stricken on this ground.
Accordingly, the Court DENIES plaintiff’s Objection To and Motion To Strike Amended
Declaration of David Rhodes and Accompanying Exhibits [docket no. 215].
IT IS SO ORDERED this 12th day of December, 2013.

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Plaintiff objects that Rhodes does not have the requisite personal knowledge to assert that the
exhibit letters attached to Rhodes’ Affidavit were in fact mailed and, thus, the letters cannot be
presented as evidence that plaintiff received notice. Under Oklahoma law, “[w]hen a letter is
placed in the mail system bearing a correct address and sufficient postage to reach its destination,
a rebuttable presumption arises that the letter did in fact reach the addressee. In the absence of
sufficient rebuttal evidence, the presumption prevails.” Booth v. McKnight, 70 P.3d 855, 858
(Okla. 2003) (citations omitted). The Court finds that Rhodes has displayed the requisite
personal knowledge that the letters were in fact mailed. Specifically, in Rhodes’ Affidavit and
his subsequent deposition transcript referred to by both parties, Rhodes explains that AIG sent
the notice to plaintiff on behalf of defendants. Rhodes also explains, in detail, AIG’s mailing
process which involves a third party vendor mailing documents, such as the ones at issue, as a
matter of course for AIG. According to Rhodes’ deposition, the original letters are mailed to the
customer and copies of the mailed letters are electronically archived in an electronic paperless
system. Accordingly, the Court finds plaintiff’s objections to be without merit.

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