JULIE E. CARNES, Chief Judge.
This case is presently before the Court on defendant's Motion for Summary Judgment ("DMSJ") [125] and defendant's Motion to Strike [137]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that the defendant's Motion for Summary Judgment [125] should be
The present action involves an alleged breach of an insurance contract. The following facts are undisputed unless stated otherwise. On June 20, 2011, plaintiff's business was burglarized. (Def.'s Statement of Material Facts [125-1] at ¶ 1.) OSA Healthcare then submitted a sworn statement of proof of loss to defendant-insurer that documented the inventory stolen.
Defendant then denied the plaintiff's claim and plaintiff brought suit in Fulton County. (Not. of Removal [1].) No evidence on record indicates why plaintiff's insurance claim was initially denied.
After discovery, defendant moved for summary judgment. (DMSJ [125].) In its motion, defendant included the expert report of forensic accountant, Michael Shryock. At the request of the plaintiff, Shryock reviewed the wire transfer confirmations and the invoices produced by plaintiff as well as those produced by third-parties, Respironics and Vaughn Medical, to determine how many of the REMstars plaintiff had in its inventory on the date of the burglary. (Shryock Rep. [125-7] at 2.) Shryock explicitly worked off the assumptions provided to him by the defendant: specifically, that Respironics was OSA's only supplier of the REMstars and that Vaughn Medical was OSA's first and only customer for this particular product. (Id. at 1.) Based on these assumptions and a review of the invoices produced, Shryock opined that OSA Healthcare actually only had 96 units of the REMstar on hand at the time of the burglary. (Id. at Schedule 1.) Accordingly, defendant claims that plaintiff overstated the amount of REMstars stolen when it reported that 150 units were missing. Defendant further argues that this misrepresentation breaches the insurance contract and voids coverage.
In its response to the DMSJ, plaintiff submitted an affidavit from OSA's owner, Donte Williams. Mr. Williams had previously been deposed, both individually and as OSA's 30(b)(6) representative. In his affidavit, Williams states that "at the time of loss, OSA's inventory included DS550HS sleep equipment that was purchased from Sleep Care Institute, Inc." (Aff. of Williams [132-5] at ¶ 13.) Were this so, it would increase the inventory on hand prior to the burglary. Defendant argues that this statement contradicts William's
Defendant argues that the affidavit of Donte Williams should be struck as a sham affidavit. (Def.'s Mot. to Strike [137].) The sham affidavit doctrine developed in order to prevent parties from defeating motions at the summary judgment phase by submitting an affidavit that creates an issue of fact, but that also contradicts prior sworn testimony of the affiant. See also FED. R. CIV. P. 56(h). It is no easy matter, however, to determine when an affidavit crosses the line from being somewhat inconsistent with earlier testimony, which would create a jury issue on credibility, to being so "inherently inconsistent" with "clear" earlier testimony that the affidavit is an obvious attempt to fabricate issues to be tried. Courts cannot allow a party to create a genuine issue of material fact simply by signing an affidavit that is patently false. On the other hand, "[t]o allow every failure of memory or variation in a witness' testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the ... affiant... was stating the truth." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (internal quotations). There is no bright line standard for deciding when an affidavit is a sham. Instead, a district court must look to all of the facts and issues of its case to make a proper determination. Van T. Junkins and Assoc., Inc. v. U.S. Indust., Inc., 736 F.2d 656, 658 (11th Cir.1984).
In the present case, as discussed infra, the Court finds that there remains genuine issues of material fact even if the Court disregards the Williams affidavit. Therefore, it would be a poor use of judicial resources to delve into the murky waters of sham affidavit law, when the result will not determine the outcome of defendant's summary judgment motion. Accordingly, the defendant's Motion to Strike [137] is
Mount Vernon moves for summary judgment based on discrepancies between what the plaintiff claimed was stolen and what the evidence actually indicates could have been stolen. As noted, defendant retained the services of a forensic accountant to review the documents produced and to determine how much inventory the plaintiff could have had on hand on the night of the burglary. After reviewing the invoice and purchase records from plaintiff OSA Healthcare, its supplier, Respironics, and its customer, Vaughn Medical, the expert opined that plaintiff could not have had more than 94 of the REMstar units on hand, even though plaintiff claimed 150 units were stolen on his loss of insurance form. (Shryock Rep. [125-7] at Schedule
Defendant contends that this expert's conclusion proves that plaintiff made a misrepresentation on his loss of insurance form, as there is no other evidence on the record supporting an alternate conclusion. If made intentionally, a false statement by the insured potentially triggers the fraud clause of the insurance contract. The fraud clause voids the entire coverage if the insured "at any time, intentionally conceal[s] or misrepresent[s] a material fact." (Policy No. CF2552529, attached as Ex. 3 to Williams examination [127-1].)
In response, plaintiff disputes the sufficiency of the expert's findings. (Pl.'s Resp. to DMSJ [132] at 4.) Plaintiff also argues that it has produced sufficient evidence of damages during discovery and should be allowed the opportunity to prove damages at trial. (Id. at 9.) Finally, plaintiff maintains that defendant Mount Vernon Insurance acted in bad faith in denying its claim, and plaintiff requests damages and attorney fees under O.C.G.A. § 33-4-6.
Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file and any affidavits, show "that there is no genuine [issue] as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is material if, "under the applicable substantive law, it might affect the outcome of the case." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1189 (11th Cir.2010). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. 2548 (quoting FED. R. CIV. P. 56(c)).
The movant bears the initial burden of asserting the basis for his motion. Id. at 323, 106 S.Ct. 2548. When evaluating whether this burden has been met, "the district court must review the evidence and all factual inferences drawn therefrom, in the light most favorable to the non-moving party." Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918-19 (11th Cir. 1993). Once this initial burden is met, then the non-movant must go beyond the pleadings to establish that there exists a genuine issue of material fact. Id. The non-movant may satisfy this requirement by presenting competent evidence designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
On September 20, 2011, defendant's counsel conducted an examination under oath ("examination") with OSA Healthcare's sole owner and operator, Donte Williams. (Williams examination [127].) At this examination, defense counsel produced the sworn statement in proof of loss, with attachments, that plaintiff had submitted to Mount Vernon Insurance as part of its claim. (Id. at 3 ("Index of Exhibits") & Ex. 1.) Counsel then asked plaintiff to "walk [him] through these exhibits." (Id. at 20.) The first exhibit attached to the plaintiff's sworn statement in proof of loss was a "Detailed Inventory Report," dated December 20, 2010. (Id.)
Defense counsel first asked how this report could be used to determine what was stolen and plaintiff explained that it could "because this [pointing to the inventory report] is what would have currently been in stock" and "if [an item] was sold, it would have been pulled out [of the system]." (Williams examination [127] at 21.) Defense counsel next asked why the date showed "December 20, 2010," and plaintiff explained that the inventory program used by OSA automatically fills in dates and times with arbitrary numbers if no date is manually entered and those arbitrary dates remain unless manually changed. (Id. at 21-23.) In essence, the date has no meaning. (Id. at 22.) Before moving on to the next attachment, defense counsel explicitly asked, "And this [the inventory report] embraces the — just to be clear for the record — the DS550HS?" Defendant answered affirmatively. (Id. at 23-24.)
On March 28, 2012, defendant's counsel
(Williams Dep. [128] at 212.)
The above testimony thus makes clear that, with his proof of loss submission, the plaintiff included a computer printout detailing the inventory on hand on the night of the burglary. Further, OSA's corporate
A court may consider any materials in the record when ruling on a summary judgment motion. FED. R. CIV. P. 56(c)(3). The court acknowledges that the inventory report, in its current form, would constitute inadmissible hearsay and "the general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment." Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999) (internal footnote and quotations omitted). In Celotex Corp. v. Catrett, the Supreme Court found that a nonmoving party need not oppose a motion for summary judgment with affidavits but may refer the district court to "pleadings, depositions, answers to interrogatories, and admissions on file." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Following this case, courts restated the general rule to hold that a trial court may consider a hearsay statement if the statement could be "reduced to admissible evidence at trial" or "reduced to admissible form." Macuba, 193 F.3d at 1323 (citing a string of Eleventh Circuit and district court decisions holding this). The Macuba court explained that a "statement might be admissible because it falls within an exception to the hearsay rule, or does not constitute hearsay at all [], or is used solely for impeachment purposes." Id. at 1323-24 (emphasis added) (internal footnotes omitted).
Further, the Eleventh Circuit has previously reversed the summary judgment ruling of a district court which failed to consider an attachment to a deposition that created a genuine issue of material fact. Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1015 (11th Cir.1987). In that case, plaintiff purchased some old airline equipment from Singapore Airlines for resale. During transit, the equipment was destroyed and plaintiff sued the carrier for damages. Id. at 1014. The district court granted summary judgment in favor of the plaintiff. Id. at 1015. The carrier appealed, arguing that there were factual disputes regarding the condition of the airline parts when they were received by the carrier from Singapore Airlines. Id. The Eleventh Circuit found that "part of the material and genuine factual dispute in this case rests on the admissibility of a letter by a Singapore Airlines employee." Id. The letter described the equipment as being "in an unserviceable state," which would have negated the carrier's liability. This circuit then held that the letter should have been considered by district court and that it created a genuine issue of material fact as to the state of the goods when they were given to the shipper. Id. Thus, summary judgment was improper.
The Court concludes that genuine issues of material fact remain in this case regarding the number of REMstars in plaintiff's inventory on the night of the burglary.
First, a statement made on a sworn proof of loss statement is material because if an insurer takes the statement at face value, then it would have been obligated to pay that amount. See Woods v. Indep. Fire Ins. Co., 749 F.2d 1493, 1495 (11th Cir.1985) (citing Claflin v. Commonwealth Ins. Co., 110 U.S. 81, 94-95, 3 S.Ct. 507, 28 L.Ed. 76 (1884)).
Plaintiff contends that Allstate Ins. Co. v. Baugh, 173 Ga.App. 615, 327 S.E.2d 576 (1985), stands for the proposition that whether a "claim for loss of [] business personal [sic] property is a misrepresentation or material, are questions of fact to be determined by a jury." (Pl.'s Resp. [132] at 6.) Plaintiff includes no pin cite as to exactly where the court in Baugh makes this pronouncement and provides no supporting argument for why the case stands for such a principle. In Baugh, the insurer appealed after a jury returned a verdict in favor of the insured. The appellant's first enumeration of error was that it was entitled to a directed verdict because it had proven, as a matter of law, that plaintiff intentionally made misstatements. Baugh, 173 Ga.App. at 615-16, 327 S.E.2d 576. Looking to the record, the appellate court found that, although discrepancies existed in the plaintiff's statements, "the record discloses, and [insurer] admits, that [the insured] denied any intent to mislead or defraud." Id. The Baugh court further found that the insured had "offered explanations for the inconsistencies which affirmatively
It is true that the insurance dispute in Baugh was litigated at trial and the appellate court affirmed the lower court's denial of a directed verdict. However, there is no indication that the case went to trial because either court found that any claim that a party made a misrepresentation must be tried by a jury. Further, the Baugh court affirmed the lower court's denial of a directed verdict after explicitly reviewing the specific facts of the case. The appellate court makes no indication that it affirmed the lower court's denial of a directed verdict based on the proposition OSA Healthcare now asserts.
The Court concludes, that statements in an insured's sworn statement in proof of loss, such as the amount of DS550HS items stolen, is not only a material fact for purposes of deciding a summary judgment motion, but is also a material statement for purposes of determining whether the plaintiff can recover, as a material misstatement to the insurer could permit the insurer to deny the claims.
Defendant's forensic accountant opines that OSA could only have had 94 units of the REMstar in inventory on the night of the loss incident and defendant bases its motion for summary judgment on the fact that "OSA has no evidence that it had more than 94 DS550HS sleep equipment in its inventory at the time of the loss." (DMSJ [125] at 11.) As discussed supra, the record contains an inventory report that, although not currently in admissible form, could be reduced to admissible form at trial. The inventory report lists 142 DS550HS units on hand at the time of the burglary. (See Williams EOU [127-1] at 13-22.) Thus, the Court has before it evidence demonstrating the possibility that 142 REMstars were in OSA's inventory at that time. While plaintiff claimed a loss of 150 REMstars, not 142 units, this discrepancy of eight such items, at $477 per item, represents only $3,816. (Shryock Report [125-7] at 4.)
Defendant believes that the present case presents facts similar to those in this Court's previous decision in Perspolis, Inc. v. Federated Mut. Ins. Co., 1:03-cv-2456-JEC, Order at Dkt. No. [33]. Accordingly, as the Court granted summary judgment there, defendant urges the undersigned to do the same thing here. (DMSJ [125] at 8.) The Court disagrees that the same ruling should issue here. It is true that in each case, the insurer moved for summary judgment based on misrepresentations by the insured in his sworn statements in proof of loss. Id. at 18. Likewise, both insurance contracts contained identical sections voiding the entire policy if the insured ever intentionally concealed or misrepresented a material fact, and both insurers hired forensic accountants to determine the amount of inventory on hand given the insured's invoice records. Id. at 8. In both cases, the accountants found discrepancies.
In Perspolis, the court looked to the plaintiff's sworn proof of loss statement, which was a 70-page long list of inventory items that plaintiff claimed had been stolen. The insurance company's forensic accountant reviewed the invoice and purchase records of the insured, however, and opined that the plaintiff only had $67,295 in inventory at the time of the burglary (including inventory that was not allegedly stolen), which was more than $130,000 less than the $200,000 plaintiff claimed in his sworn proof of loss form. Perspolis, Inc., 1:03-cv-2456-JEC, Order at Dkt. No. [33] at 19. Plaintiff's own expert was unable to corroborate plaintiff's claimed amount of loss, opining that it was about $140,000.
After this observation, the Court explicitly dismissed the notion that plaintiff could have perhaps made an "innocent mistake on a ballpark estimate of the amount of loss it suffered as a result of the burglary," as plaintiff had meticulously listed allegedly stolen items for seventy pages yet no one, including plaintiff's own expert, could "find any basis for [the] total claimed amount of loss." Id.
Implicit in this court's determination in Perspolis was a conclusion that the amount claimed in the loss of insurance form dwarfed any amount supported by the evidence to such a degree that no reasonable trier of fact could believe that the plaintiff in that case had not intentionally lied on his sworn proof of loss form. Perspolis, Inc., 1:03-cv-2456-JEC, Order at Dkt. No. [33] at 21.
Further, the inventory record reflecting a loss of 142 units was submitted with the plaintiff's original sworn statement in proof of loss. This fact lends credence to the assertion that plaintiff was not attempting to conceal anything, but instead that he made a mistake. While the plaintiff's subsequent efforts to contest summary judgment (i.e. the filing of the disputed affidavit) may be disingenuous, the Court does not base its ruling today on these actions. Further the Court is bound to construe all the evidence and factual inferences in a light most favorable to the nonmovant and "must avoid. weighing conflicting evidence or making credibility determinations." Hairston, 9 F.3d at 919. Therefore, while plaintiff's subsequent actions raise significant credibility concerns, this would be for the trier of fact, not the Court on summary judgment, to decide.
For the foregoing reasons, the Court
Defendant also moves for summary judgment on plaintiff's claim that Mount Vernon Insurance acted in bad faith by denying plaintiff's insurance claim. (DMSJ [127] at 11.)
The Court concludes that disputed issues of material fact exists and it
For the foregoing reasons, the Court
While this language may imply that inadmissible hearsay may be used to defeat summary judgment, the Eleventh Circuit has since explicitly disavowed that reading of Offshore Aviation. McMillian v. Johnson, 88 F.3d 1573, 1585 (11th Cir.1996) (reasoning there was no indication that the letter in Offshore Aviation could not be reduced to admissible evidence and the record illustrated no impediment to the writer of the letter testifying at trial).
