Filed: Aug. 12, 2009
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT U-HAUL INTERNATIONAL, INC; U- HAUL OF PENNSYLVANIA; U-HAUL COMPANY OF FLORIDA; REPUBLIC WESTERN INSURANCE COMPANY, No. 07-16187 Plaintiffs-counter-defendants- Appellees, D.C. No. CV-04-00662-DGC v. OPINION LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant-counter-claimant- Appellant. Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding Argued and Submitted Janua
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT U-HAUL INTERNATIONAL, INC; U- HAUL OF PENNSYLVANIA; U-HAUL COMPANY OF FLORIDA; REPUBLIC WESTERN INSURANCE COMPANY, No. 07-16187 Plaintiffs-counter-defendants- Appellees, D.C. No. CV-04-00662-DGC v. OPINION LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant-counter-claimant- Appellant. Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding Argued and Submitted Januar..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U-HAUL INTERNATIONAL, INC; U-
HAUL OF PENNSYLVANIA; U-HAUL
COMPANY OF FLORIDA; REPUBLIC
WESTERN INSURANCE COMPANY,
No. 07-16187
Plaintiffs-counter-defendants-
Appellees,
D.C. No.
CV-04-00662-DGC
v.
OPINION
LUMBERMENS MUTUAL CASUALTY
COMPANY,
Defendant-counter-claimant-
Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
January 15, 2009—San Francisco, California
Filed August 12, 2009
Before: J. Clifford Wallace, Jerome Farris and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Wallace
10907
U-HAUL v. LUMBERMENS MUTUAL 10909
COUNSEL
Michael C. Bruck, Alyssa M. Campbell and Brian Y. Boyd,
Williams Montgomery & John Ltd., Chicago, Illinois, for the
defendant-appellant.
10910 U-HAUL v. LUMBERMENS MUTUAL
Bruce M. Friedman, Rubin, Fiorella & Friedman LLP, New
York, New York, for the plaintiffs-appellees.
OPINION
WALLACE, Senior Circuit Judge:
Lumbermens Mutual Casualty Company (Lumbermens)
appeals from the district court judgment in favor of U-Haul
and Republic Western Insurance Company (Republic West-
ern). Although Lumbermens raises a number of issues, in this
opinion we deal with only its argument that the district court
abused its discretion in admitting into evidence certain
computer-generated summaries of payments made on insur-
ance claims. We address Lumbermens’ other arguments in a
companion unpublished disposition. The district court had
jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdic-
tion over this timely filed appeal pursuant to 28 U.S.C.
§ 1291. We affirm the judgment of the district court.
I.
During the relevant coverage periods of April 1, 1999
through March 31, 2000 and April 1, 2000 through March 31,
2001, U-Haul was protected by liability insurance coverage
consisting of primary and excess insurance policies. Republic
Western, the primary insurer, provided primary and excess
coverage up to a total limit of $7,000,000 per occurrence in
excess of $25,000 for which U-Haul is self-insured. The total
products aggregate limits on Republic Western’s policies
were $13,000,000 during the first policy year and
$14,000,000 during the second policy year. U-Haul also pur-
chased an excess insurance policy from Lumbermens, which
provided excess coverage up to a limit of $13,000,000 per
occurrence, and a products aggregate coverage of
$13,000,000 for each policy year. The Lumbermens policy
U-HAUL v. LUMBERMENS MUTUAL 10911
did not become payable until the $25,000 self-insurance from
U-Haul and the $7,000,000 coverage provided by the underly-
ing Republic Western policies had been exhausted.
U-Haul settled three claims that implicated these insurance
policies. Republic Western and Lumbermens funded the
defense and settlement costs of each insurance claim, but
agreed under a reservation of rights to dispute issues as to
each party’s coverage obligations. At the heart of the parties’
dispute was whether payments of loss adjustment expenses,
which are legal fees incurred in the investigation, negotiation
and defense of an insurance claim, made by Republic Western
should be considered in determining whether the Republic
Western policies had been exhausted. That issue determines
the amount that Lumbermens is obligated to pay under its
excess policy.
On February 5, 2004, U-Haul and Republic Western jointly
filed a complaint against Lumbermens for breach of contract
and declaratory relief, alleging that Lumbermens had not paid
sufficient amounts on two of the claims. Lumbermens filed a
counterclaim against U-Haul, Republic Western and others,
seeking reimbursement for amounts that it had allegedly over-
paid on the two claims. After entering summary judgment in
favor of U-Haul and Republic Western on several legal issues,
including the respective obligations of Republic Western and
Lumbermens under the insurance policies, the district court
held a bench trial on the issue of damages. Central to that
issue was the amount Republic Western had paid on each
claim because this would determine when Lumbermens’
excess policy was triggered and how much Lumbermens
would be required to pay.
At trial, Thomas Matush, a claims manager at Republic
Western, testified regarding the amounts Republic Western
paid in the course of defending and settling the claims. He tes-
tified about Exhibits 28, 29 and 30, which contained
computer-generated summaries of payments for loss adjust-
10912 U-HAUL v. LUMBERMENS MUTUAL
ment expenses made by Republic Western on the insurance
claims. Each exhibit related to an individual insurance claim.
Each exhibit included a summary page showing the indemnity
and expenses paid on the claim, the names of each vendor
paid on the claim, and the total amounts paid to each vendor.
Also included were additional pages listing vendor numbers,
transaction dates, check numbers, and amounts of payments
made.
Lumbermens objected to the admission of the exhibits on
the grounds that they were inadmissible hearsay, not subject
to the exception in Federal Rule of Evidence 803(6), and that
they also violated Federal Rules of Evidence 901 and 1006.
The district court admitted the exhibits. On March 19, 2007,
the district court entered judgment in favor of Republic West-
ern and U-Haul in the amount of $1,958,535.69.
We review evidentiary rulings for an abuse of discretion.
Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.
2004). Findings of fact made in a bench trial are reviewed for
clear error, and conclusions of law are reviewed de novo.
Friends of Yosemite Valley v. Norton,
348 F.3d 789, 793 (9th
Cir. 2003).
II.
Lumbermens argues that the district court abused its discre-
tion in admitting the exhibits containing the computer-
generated summaries reflecting Republic Western’s indem-
nity payments and loss adjustment expense payments for the
insurance claims. It contends that the summaries are hearsay
not fitting within the business records exception, and there-
fore, should have been excluded.
[1] Rule 803(6) provides that records of regularly con-
ducted business activity meeting the following criteria consti-
tute an exception to the prohibition against hearsay evidence:
U-HAUL v. LUMBERMENS MUTUAL 10913
A . . . report, record, or data compilation, in any
form, of acts, events, condition, opinions, or diagno-
ses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity,
and if it was the regular practice of that business
activity to make the . . . report, record or data compi-
lation, all as shown by the testimony of the custodian
or other qualified witness . . . unless the source of
information or the method or circumstances of prep-
aration indicate lack of trustworthiness.
[2] We have made clear that “[f]or the purposes of Rule
803(6), ‘it is immaterial that the business record is maintained
in a computer rather than in company books.’ ” Sea-Land
Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 819 (9th Cir.
2002), quoting United States v. Catabran,
836 F.2d 453, 457
(9th Cir. 1988). A logical extension on that principle is that
evidence that has been compiled from a computer database is
also admissible as a business record, provided it meets the
criteria of Rule 803(6). Accord United States v. Fujii,
301
F.3d 535, 539 (7th Cir. 2002) (holding that computer data
compiled in the ordinary course of business and presented in
computer printouts prepared for trial is admissible under Rule
803(6)); Potamkin Cadillac Corp. v. B.R.I. Coverage Corp.,
38 F.3d 627, 632 (2d Cir. 1994) (“A business record may
include data stored electronically on computers and later
printed out for presentation in court, so long as the original
computer data compilation was prepared pursuant to a busi-
ness duty in accordance with regular business practice”) (cita-
tion and internal quotations omitted); see also B. Weinstein
and M.A. Berger, Weinstein’s Federal Evidence § 901.08[1]
(2d. ed. 2006) (stating that “printouts prepared specifically for
litigation from databases that were compiled in the ordinary
course of business are admissible as business records to the
same extent as if the printouts were, themselves, prepared in
the ordinary course of business. The important issue is
10914 U-HAUL v. LUMBERMENS MUTUAL
whether the database, not the printout from the database, was
compiled in the ordinary course of business”).
[3] In this case, the exhibits summarizing loss adjustment
expense payments for each claim fit squarely within the busi-
ness records exception of Rule 803(6). As the district court
found (1) the underlying data was entered into the database at
or near the time of each payment event; (2) the persons who
entered the data had knowledge of the payment event; (3) the
data was kept in the course of Republic Western’s regularly
conducted business activity; and (4) Mr. Matush was qualified
and testified as to this information. The record does not indi-
cate that any of these factual findings is clearly erroneous.
[4] Matush, Republic Western’s claims manager, testified
that Republic Western employees input a record of each loss
adjustment expense payment into a database at the time
Republic Western made each payment. Republic Western
employees would then query the database to compile the pay-
ment information, generating a summary of the defense costs
for each of the claims. Matush testified that the summaries are
“routinely run . . . for information, claim specific. It’s part of
our business practice. See where we are in the claim, basical-
ly.” Matush prepared the individual summaries that were
admitted to prove damages on the insurance claims. The data
compilations therefore meet the requirements of Rule 803(6),
and thus constitute a business record excepted from the hear-
say prohibition.
[5] There is no merit to Lumbermens argument that the
exhibits constitute evidence prepared solely for the purposes
of litigation and not kept in a company’s regular course of
business. In United States v. Arias-Izquierdo, a case cited by
Lumbermens, the evidence which was deemed inadmissible
hearsay, not excepted by Rule 803(6), was a typed summary
of handwritten business record that was prepared solely for
litigation. 449 F.3d 1168, 1184 (11th Cir. 2006). In contrast,
the company in this case kept the computerized database in
U-HAUL v. LUMBERMENS MUTUAL 10915
the regular course of business and regularly compiled summa-
ries of payment histories in the regular course of business.
[6] Lumbermens next argues that Matush was not qualified
to attest to the data entered into the database because he did
not input each piece of data that underlies the summaries.
However, there is no dispute that Matush, as a Republic West-
ern claims manager, was qualified to testify about the busi-
ness practices and procedures for inputting the underlying
data. It is not necessary for each individual who entered a
record of payment into the database to testify as to the accu-
racy of each piece of data entered. See United States v. Smith,
609 F.2d 1294, 1302 (9th Cir. 1979) (“The witness must only
be in a position to attest to [the evidence’s] authenticity”)
(citation and internal quotations omitted); see also Thanong-
sinh v. Bd. of Educ.,
462 F.3d 762, 777 (7th Cir. 2006) (hold-
ing that the qualified witness “need only be familiar with the
company’s recordkeeping practices”); Weinstein’s Federal
Evidence § 803.08[4] (stating that witnesses to an electronic
data compilation need not personally enter the data).
Lumbermens next argues that the summaries lack the requi-
site indicia of trustworthiness under Rule 803(6). See Fed. R.
Evid. 803(6) (a business record does not qualify as a hearsay
exception where “the source of information or the method or
circumstances of preparation indicate lack of trustworthi-
ness”). During trial, the district judge asked Matush to match
up a specific payment to the summary sheet, and Matush was
unable to locate the corresponding entry. However, the judge
engaged in thorough follow-up questioning on this point, and
Matush detailed to the judge’s satisfaction how the summary
sheet matched up to backup documentation.
The district court did not abuse its discretion in admitting
the summaries as a business record.
III.
Lumbermens argues that the summaries should not have
been admitted because the underlying computer data was not
10916 U-HAUL v. LUMBERMENS MUTUAL
properly authenticated as prescribed in Rule 901. But
“[e]vidence describing a process or system used to produce a
result and showing that the process or system produces an
accurate result” is an example of a method of authenticating
a process or system. Fed. R. Evid. 901(b)(9). Lumbermens
does not specify precisely how Republic Western and U-Haul
failed to authenticate the computer summaries, and it has not
shown how the district court abused its discretion in admitting
the evidence.
We have held that “[i]t is not necessary that the computer
programmer testify in order to authenticate computer-
generated records.” United States v. Miller, 771 F.2d 1219,
1237 (9th Cir. 1985). A computer printout may be authenti-
cated by “one who has knowledge of the particular record sys-
tem.”
Id., quoting Notes of the Committee on the Judiciary,
S. Rep. No. 93-1277, 93rd Cong., 2d Sess. 17 (1974). Simi-
larly, a party “ ‘need not produce expert testimony as to [the]
mechanical accuracy of [a] computer where it presented evi-
dence that [the] computer was sufficiently accurate [so that
the] company relied upon it in conducting its business.’ ”
Id.,
citing United States v. De Georgia,
420 F.2d 889, 893 n.11
(9th Cir. 1969).
[7] In this case, Matush testified regarding the process of
inputting data into the computer and the process of querying
the computer to compile the information to create the summa-
ries. Matush testified that he was familiar with the record-
keeping practices of the company, testified regarding the
computer system used to compile and search the insurance
claim records, and testified regarding the process of querying
the computer system to create the summaries admitted at trial.
This description of the process used to create the summaries
was sufficient to authenticate the evidence, and the district
court did not abuse its discretion in holding that a sufficient
foundation was laid to admit the exhibits.
U-HAUL v. LUMBERMENS MUTUAL 10917
IV.
[8] Finally, Lumbermens argues that the exhibits containing
the summaries were inadmissible because they violated Rule
1006. That rule allows “the contents of voluminous writings
. . . which cannot conveniently be examined in court” to be
presented in the “form of a chart, summary, or calculation.”
Fed. R. Evid. 1006. However, the rule requires that the origi-
nals, or duplicates, be made available for examination or
copying by other parties at a reasonable time or place. Id. As
discussed in Section II above, the summaries themselves con-
stituted the business records. They were the writings at issue,
not summaries of other evidence. Thus, Rule 1006 does not
apply.
AFFIRMED.
