United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge
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.
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.
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.
Objection by Defendant [DN 80]
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].
Jean M. Decker
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.
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.
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
Fed. R. Evid. 804(b)(1). See, e.g.,
Westlake Vinyls, Inc. v. Goodrich Corp., 2007 WL
3046527, *1-2 ...