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Fraze v. Metropolitan Property and Casualty Insurance Co.

United States District Court, W.D. Kentucky, Louisville Division

April 6, 2017

KATHERINE FRAZE, PLAINTIFF
v.
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge

         This matter is before the Court on objections by Defendant, Metropolitan Property and Casualty Insurance Company, to Plaintiff's witness and exhibit lists [DN 80] and on objections by Plaintiff, Katherine Fraze, to Defendant's witness and exhibit lists [DN 81]. Fully briefed, these matters are ripe for decision.

         I. BACKGROUND

         This action concerns an insurance claim resulting from a fire at a farmhouse on Billtown Road which is owned by Jean Decker. The Plaintiff, Kathy Fraze, served as Ms. Decker's caregiver since the death of Ms. Decker's son on December 6, 2012. On December 14, 2012, Plaintiff applied for renter's insurance from Defendant, Metropolitan Property and Casualty Insurance Company, to cover personal property located in the farmhouse. According to the Plaintiff, some of the contents in the farmhouse had been gifted to her by Ms. Decker after the death of Ms. Decker's son. A fire occurred at the property on July 22, 2013.

         Despite Plaintiff's claim and demand under the policy, the Defendant has failed to pay the claim. On July 22, 2014, Plaintiff filed this action against Defendant for breach of the insurance contract and for bad faith. Defendant answered and filed a counterclaim seeking a judgment declaring the rights of the respective parties as to the insurance coverage available to Plaintiff under the policy in question. By Memorandum Opinion and Order entered on March 10, 2017, the Court denied Defendant's motion for summary judgment seeking a declaration that the Renter's Insurance Policy is null and void and that Metropolitan owes no insurance coverage to Plaintiff for her claimed loss herein. Pursuant to the scheduling order, the parties submitted objections to the other party's witness list, designation of witness testimony, and exhibit list.

         II. Objection by Defendant [DN 80]

         Defendant filed an objection [DN 80] to Plaintiff's witness list, designation of testimony, and exhibit list [DN 78]. Plaintiff filed a response to the objection [DN 85].

         1. Jean M. Decker

         Defendant objects to the introduction of Ms. Decker's deposition absent a judicial finding of her unavailability under Fed.R.Evid. 804. Additionally, Defendant objects to the introduction of the affidavit of Ms. Decker dated November 21, 2016, for the reasons addressed in Defendant's motion to strike which the Court denied in its March 10, 2017, Memorandum Opinion and Order.

         A party seeking to admit a deposition at trial must prove that the requirements of Fed.R.Civ.P. 32(a) have been met. Allgeier v. United States, 909 F.2d 869, 876 (6th Cir. 1990). Rule 32(a)(4) provides that the deposition of a witness may be used by any party for any purpose if the court finds that the witness is dead; the witness is more than 100 miles from the place of hearing or trial or is outside the United States; the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; or if the party offering the deposition could not procure the witness's attendance by subpoena.

         Furthermore, under Fed.R.Evid. 804(b), former testimony is not excluded by the rule against hearsay if the declarant is unavailable as a witness and the former testimony

A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Fed. R. Evid. 804(b)(1). See, e.g., Westlake Vinyls, Inc. v. Goodrich Corp., 2007 WL 3046527, *1-2 ...


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