Bruhn Farms Joint Venture v. Fireman's Fund Insurance Company, 13-cv-4106. (2017)
Court: District Court, N.D. Iowa
Number: infdco20170329779
Visitors: 2
Filed: Mar. 02, 2017
Latest Update: Mar. 02, 2017
Summary: FINAL PRETRIAL ORDER C. J. WILLIAMS , Magistrate Judge . This final pretrial order was entered after a final pretrial conference held on February 6, 2017. The court expects the parties to fully comply with this order. The following counsel, who will try the case, appeared at the conference: 1. For plaintiff(s): Donald G. Beattie Beattie Law Firm, P.C. 4300 Grand Ave. Des Moines IA 50312 Phone: (515) 263-1000 Fax: (515) 263-1411 Email: don.beattie@beattielawfirm.com Nile Hicks Beatti
Summary: FINAL PRETRIAL ORDER C. J. WILLIAMS , Magistrate Judge . This final pretrial order was entered after a final pretrial conference held on February 6, 2017. The court expects the parties to fully comply with this order. The following counsel, who will try the case, appeared at the conference: 1. For plaintiff(s): Donald G. Beattie Beattie Law Firm, P.C. 4300 Grand Ave. Des Moines IA 50312 Phone: (515) 263-1000 Fax: (515) 263-1411 Email: don.beattie@beattielawfirm.com Nile Hicks Beattie..
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FINAL PRETRIAL ORDER
C. J. WILLIAMS, Magistrate Judge.
This final pretrial order was entered after a final pretrial conference held on February 6, 2017. The court expects the parties to fully comply with this order.
The following counsel, who will try the case, appeared at the conference:
1. For plaintiff(s):
Donald G. Beattie
Beattie Law Firm, P.C.
4300 Grand Ave.
Des Moines IA 50312
Phone: (515) 263-1000
Fax: (515) 263-1411
Email: don.beattie@beattielawfirm.com
Nile Hicks
Beattie Law Firm, P.C.
4300 Grand Ave.
Des Moines, IA 50312
Phone: (515) 263-1000
Fax: (515) 263-1411
Email: nile.hicks@beattielawfirm.com
Nicholas L. Shaull
Nicholas L. Shaull, P.C.
2423 Ingersoll Ave.
Des Moines IA 50312
Phone: (515) 277-6559
Fax: (515) 277-7536
Email: nick.shaull@sbsattorneys.com
2. For defendant(s):
W. Kurt Henke (via Phone)
Henke-Bufkin, P.A.
P.O. Box 39
Clarksdale, MS 38614
Phone: (662) 624-8500
Fax: (662) 624-8040
Email: wkh@henke-bufkin.com
Jeffrey S. Dilley
Henke-Bufkin, P.A.
P.O. Box 39
Clarksdale, MS 38614
Phone: (662) 624-8500
Fax: (662) 624-8040
Email: jsd@henke-bufkin.com
Michael W. Ellwanger
Rawlings, Ellwanger,
Mohrhauser & Nelson, L.L.P.
522 Fourth St., Suite 300
Sioux City, IA 51101
Phone: (712) 277-2373
Fax: (712) 277-3304
Email: mellwanger@rawlings-law.com.
I. STIPULATION OF FACTS: The parties agree that the following facts are true and undisputed:
A. RCIS, acting in its capacity as managing general agent for Fireman's Fund Insurance Company ("FFIC"), issued a policy of crop-hail insurance to Bruhn Farms Joint Venture ("Bruhn") for crop year 2012, designated as policy number IA-090-120853.
B. Plaintiff paid a premium of $245,967 for said hail coverage.
C. Terry Nielsen was appointed as an agent by RCIS effective for the 2012 crop year.
D. Subject to its terms and conditions, the Policy afforded coverage during the 2012 crop year to those crops identified by line, county, and legal description in the Policy Declaration Page.
E. The insured crops include 300 acres of rye, 3,464.7 acres of corn, and 7,934 acres of soybeans. The soybeans are listed in lines 24-55 of the declarations page.
F. For crop year 2012, National Crop Insurance Services ("NCIS") published crop-hail loss adjustment procedures for corn and soybeans.
G. Following report of the loss, RCIS consented to Plaintiff harvesting the damaged fields but leaving test strips in these fields.
H. On November 5, 2012, Galen Sornson faxed to Al Bruhn a copy of the adjustment findings.
I. Plaintiff did not agree with the findings.
J. Larry Grieme completed a "high dollar" review of the claim on November 27, 2012.
K. Defendant issued payment to Plaintiff for the loss amount less premium balance. The payment was delivered to Plaintiff via FedEx on December 4, 2012.
L. After receiving payment for the loss, Al Bruhn placed a call to Terry Nielsen. Nielsen then contacted both Rod Nelson (manager of our RCIS's Regional Service Office) and Chuck Eldredge (RCIS's National Claims Manager) to request that RCIS reconsider its payment determination.
M. On December 15, 2012, Chuck Eldredge requested that Larry Burkhart (RCIS's Crop Hail/Named Peril Field Claims Manager) meet with Al Bruhn.
N. A meeting occurred on December 18, 2012, between Al Bruhn and Larry Burkhart.
O. On January 25, 2013, Larry Burkhart sent Plaintiff a letter advising that RCIS had completed its review of Plaintiff's claim and determined that the claim was properly adjusted and paid.
II. EXHIBIT LIST: The parties' exhibit lists and objections are attached to this Order.
III. WITNESS LIST: The parties intend to call the following witnesses at trial and the notes objections by the parties at this time:
A. Plaintiff(s) witnesses:
Witness Name Substance of Testimony Objections/Nature &
Grounds of Objection
1) Alan Bruhn Alan Bruhn is expected to testify live
at trial. Mr. Bruhn is expected to
testify as to all disputed issues in this
matter, including the liability and
damage claims asserted in this matter
to the extent he has personal
knowledge.
2) Jessica Bruhn Jessica Bruhn is expected to testify Defendant objects to this
live at trial. Ms. Bruhn is expected to witness testifying, as she
testify as to all disputed issues in this was never disclosed as
matter, including the liability and having knowledge of
damage claims asserted in this matter discoverable facts.
to the extent she has personal
knowledge.
3) Calvin Bruhn Calvin Bruhn is expected to testify
live at trial. Mr. Bruhn is expected to
testify as to all disputed issues in this
matter, including the liability and
damage claims asserted in this matter
to the extent he has personal
knowledge.
4) Leo Erlemeier Leo Erlemeier is expected to testify
live at trial. Mr. Erlemeier is
expected to testify as to all disputed
issues in this matter, including the
liability and damage claims asserted
in this matter to the extent he has
personal knowledge. This would
include, but is not limited to, his
testimony concerning similar cross
loss claims asserted by him in 2012
as discussed generally in his
deposition.
5) Ryan Gotto Ryan Gotto is expected to testify live
at trial. Mr. Gotto is expected to
testify as to all disputed issues in this
matter, including the liability and
damage claims asserted in this matter
to the extent he has personal
knowledge. This would include the
contents of his deposition and
affidavit previously submitted. This
would include, but is not limited to,
Bruhn's farming procedures and
practices. This would include, but is
not limited to, his knowledge of the
hail losses, test strips, condition of
the soybean plants, and Defendant's
adjustment procedures as witnessed
by Mr. Gotto
6) Darren Jacobson Darren Jacobson is expected to testify
live at trial. Mr. Jacobson is expected
to testify as to all disputed issues in
this matter, including the liability and
damage claims asserted in this matter
to the extent he has personal
knowledge. This would include the
contents of his deposition and
affidavit previously submitted. This
would include, but is not limited to,
Bruhn's farming procedures and
practices. This would include, but is
not limited to, his knowledge of the
hail losses, test strips, condition of
the soybean plants, and Defendant's
adjustment procedures as witnessed
by Mr. Jacobson.
7) Kirk Lacey Mr. Lacey is expected to testify live
at trial. Mr. Lacey is expected to
testify as to all disputed issues in this
matter, including the liability and
damage claims asserted in this matter
to the extent he has personal
knowledge. This would include the
contents of his deposition and
affidavit previously submitted. This
would include, but is not limited to,
Bruhn's farming procedures and
practices. This would include, but is
not limited to, his knowledge of the
hail losses, test strips, condition of
the soybean plants, and Defendant's
adjustment procedures as witnessed
by Mr. Lacey.
8) Terry Nielsen Mr. Nielsen is expected to testify
concerning issues pertaining to
liability and damages. This includes
his testimony concerning the
insurance policy at issue and
insurance policies purchased by
Plaintiff. This includes information
contained within his deposition
generally. This includes matters
surrounding the ProAg documents
and claims (conditionally). This
includes routine practice and
procedure in the handling of the hail
claims. This includes any additional
information he knows concerning
these claims and for which he has
personal knowledge, including the
adjustment performed by Defendant.
9) Jeremy Blake Mr. Blake is expected to testify live
at trial. Mr. Blake is expected to
testify as to all disputed issues in this
matter, including the liability and
damage claims asserted in this matter
to the extent he has personal
knowledge. This would include the
contents of his deposition and
affidavit previously submitted. This
would include, but is not limited to,
Bruhn's farming procedures and
practices. This would include, but is
not limited to, his knowledge of the
hail losses, test strips, condition of
the soybean plants, and Defendant's
adjustment procedures as witnessed
by Mr. Blake.
10) Larry Grieme Mr. Grieme is expected to testify live
at trial. Mr. Grieme is Defendant's
representative and agent. Plaintiff
does not guarantee his appearance at
trial, but does intend to subpoena Mr.
Grieme for trial. It is expected that
Mr. Grieme will testify concerning
issues related to the liability and
damage claims asserted herein. To
the extent Mr. Grieme does not testify
live, Plaintiff reserves the right to
designate deposition testimony.
11) Galen Sornson Mr. Sornson is expected to testify live
at trial. Mr. Sornson is Defendant's
representative and agent. Plaintiff
does not guarantee his appearance at
trial, but does intend to subpoena Mr.
Sornson for trial. It is expected that
Mr. Sornson will testify concerning
issues related to the liability and
damage claims asserted herein. To
the extent Mr. Sornson does not
testify live, Plaintiff reserves the right
to designate deposition testimony.
12) Ed Cerven Mr. Cerven is expected to testify live
at trial. Mr. Cerven is Defendant's
representative and agent. Plaintiff
does not guarantee his appearance at
trial, but does intend to subpoena Mr.
Cerven for trial. It is expected that
Mr. Cerven will testify concerning
issues related to the liability and
damage claims asserted herein. To
the extent Mr. Cerven does not testify
live, Plaintiff reserves the right to
designate deposition testimony.
13) Charles Eldredge (by Mr. Eldredge is expected to testify by
deposition or live) deposition unless made available for
live trial testimony by Defendant.
Mr. Eldredge is Defendant's
representative and agent. It is
expected that Mr. Eldredge will
testify concerning issues related to
the liability and damage claims
asserted herein. To the extent Mr.
Eldredge does not testify live,
Plaintiff intends to designate
deposition testimony.
14) Larry Burkhart (by Mr. Burkhart is expected to testify by
depositions or live) deposition(s) unless made available
for live trial testimony by Defendant.
Mr. Burkhart is Defendant's
representative and agent. It is
expected that Mr. Burkhart will
testify concerning issues related to
the liability and damage claims
asserted herein. To the extent Mr.
Burkhart does not testify live,
Plaintiff intends to designate
deposition testimony.
15) Rod Nelson (by deposition or Mr. Nelson is expected to testify by
live) deposition(s) unless made available
for live trial testimony by Defendant.
Mr. Nelson is Defendant's
representative and agent. It is
expected that Mr. Nelson will testify
concerning issues related to the
liability and damage claims asserted
herein. To the extent Mr. Nelson
does not testify live, Plaintiff intends
to designate deposition testimony.
16) Bruce Babcock Mr. Babcock may testify at trial in Defendant objects to this
this matter. Mr. Babcock is one of witness testifying, as the
Plaintiff's expert witnesses. Mr. entire substance of his
Babcock my testify live at trial. His report pertains to
testimony would consist of his communications that are
qualifications, review of the file, and protected under Fed.R.
opinions expressed generally in his Evid. 408.
report previously provided to
Defendant.
17) Chris Anderson Mr. Anderson is expected to testify at
trial in this matter. Mr. Anderson is
one of Plaintiff's expert witnesses.
His testimony would consist of his
qualifications, review of the file, and
opinions expressed generally in his
report previously provided to
Defendant.
18) Ben Parrott Mr. Parrott is expected to testify at
trial in this matter. Mr. Parrott is one
of Plaintiff's expert witnesses. His
testimony would consist of his
qualifications, review of the file, and
opinions expressed generally in his
report previously provided to
Defendant.
19) David Tritsch Mr. Tritsch is expected to testify at Defendant objects to this
trial in this matter. Mr. Tritsch is one expert's testimony to the
of Plaintiff's expert witnesses. His extent raised in its
testimony would consist of his Motion in Limine.
qualifications, review of the file, and
opinions expressed generally in his
reports previously provided to
Defendant.
20) Hans Hoffmeier Mr. Hoffmeier may be called as a
witness at trial. Mr. Hoffmeier is
expected to testify as to issues related
to liability and damages. This
includes testimony concerning hail
losses on his soybeans in 2012.
21) Joel DeJong Mr. DeJong may be called as a
witness at trial. Mr. DeJong is
expected to testify as to issues related
to liability and damages. This
includes testimony concerning
soybean production in Iowa in 2012
and the information he and others
provided to Defendant during this
claim as evidenced in the file
documents produced in this litigation.
See documents produced and
Plaintiff's 26(a)(2)(C) designation.
22) Cheri Hardison Ms. Hardison may be called as a
witness at trial. Ms. Hardison is
expected to testify as to issues related
to liability and damages. This
includes testimony concerning
soybean production in Iowa in 2012
and information she and others
provided to Defendant during this
claim as evidence in the file
documents produced in this litigation.
See documents produced and
Plaintiff's 26(a)(2)(C) designation.
23) Jerry Thies Mr. Thies may be called as a witness Defendant reserves any
at trial. Mr. Thies is expected to objections to opinion or
testify as to damage. This includes character testimony by
testimony concerning "volunteer this witness.
soybeans" in Bruhn fields for the
copy year 2013. This also includes
testimony concerning the fact that
Bruhn Farms were good farmers.
24) Bill Ortner Mr. Ortner may be called as a witness Defendant reserves any
at trial. Mr. Ortner is expected to objections to opinion or
testify as to damage. This includes character testimony by
testimony concerning "volunteer this witness.
soybeans" in Bruhn fields for the
copy year 2013. This also includes
testimony concerning the fact that
Bruhn Farms were good farmers.
25) Jeff Cameron — Provisional & Mr. Cameron may be called as a
cannot Guarantee his witness at trial and is designated as a
Presence) provisional witness. If called, he is
expected to testify concerning his
dealings with Plaintiff and ProAg and
any other issues relating to liability,
damages, and Defendant's defenses
in this matter.
26) Plaintiff further reserves the right to call any witness necessary to lay foundation for any document or item of evidence objected to by Defendant before or at trial.
27) Plaintiff further reserves the right to call any witness for purposes of rebuttal testimony.
28) Plaintiff further reserves the right to call any witness identified during discovery not objected to by Plaintiff.
29) Plaintiff further reserves the right to read into testimony all or portions of the deposition testimony of Defendant's experts not objected to by Plaintiff.
B. Defendant(s) witnesses:
Witness Name Substance of Testimony Objections/Nature &
Grounds of Objection
1) Larry Burkhart Mr. Burkhart is expected to testify live at
the trial as to the nature and scope of crop
hail policies, the adjustment of crop hail
claims, as well as the adjustment and
assessment of the hail claim at issue and
other hail claims of the Plaintiff in 2012.
Mr. Burkhart may testify as his experience
with the growth of soybeans, soybean
crop hail losses, hail claims in 2012, as
well as multiple peril claims, including
multiple peril losses in 2012. Mr.
Burkhart's testimony may include the
claim adjustment, communications
regarding the claim adjustment, and
interaction with Plaintiff regarding the
claim at issue. Mr. Burkhart's testimony
may include, but is not limited to, the
matters addressed in his deposition.
2) Galen Sornson Mr. Sornson is expected to testify live at
the trial as to the nature and scope of crop
hail policies, the adjustment of crop hail
claims, as well as the adjustment and
assessment of the crop hail insurance
claim at issue, including matters relating
to claim adjustment and communications
regarding the claim. He may testify as his
experience with the growth of soybeans
and soybean crop hail losses. His
testimony may include, but is not limited
to, matters addressed in his deposition.
3) Clifton Parker Mr. Parker is an expert retained by Plaintiff objects to this
Defendant. He is expected to testify at trial expert to the extent
as to his qualifications and the matters raised in Motions in
contained in his report submitted in this Limine.
case as well as the matters addressed in his
deposition.
4) Steven Griffin Mr. Griffin is an expert retained by Plaintiff objects to this
Defendant. He is expected to testify at trial expert to the extent
as to his qualifications and the matters raised in Motions in
contained in his report submitted in this Limine.
case.
5) Gregory Meek Mr. Meek is an expert retained by Plaintiff objects to this
Defendant. He is expected to testify at trial expert's testimony to
as to his qualifications and the matters the extent raised in
contained in his reports submitted in this Motions in Limine.
case as well as the matters addressed in his
deposition.
6) John Mewes Mr. Mewes is an expert retained by
Defendant. He is expected to testify at trial
as to his qualifications and the matters
contained in his report submitted in this
case as well as the matters addressed in his
deposition.
7) John Brown Mr. Brown is an expert retained by Plaintiff objects to this
Defendant. He is expected to testify at trial expert to the extent
as to his qualifications and the matters raised in Motions in
contained in his reports submitted in this Limine.
case.
8) Larry Grieme Mr. Grieme may testify live at the trial as
to the nature and scope of crop hail
policies, the adjustment of crop hail
claims, as well as the adjustment and
assessment of the crop hail insurance
claim at issue, including matters relating
to claim adjustment and communications
regarding the claim. Mr. Grieme may
testify as to his experience with the
growth of soybeans and soybean crop hail
losses. His testimony may include, but is
not limited to, the matters addressed in his
deposition. As this individual is
designated as a "may call" witness,
Defendant does not guarantee his
presence at trial.
9) Edward Cerven Mr. Cerven may testify live at the trial as
to the nature and scope of crop hail
policies, the adjustment of crop hail
claims, as well as the adjustment and
assessment of the hail claim at issue and
other hail claims of the Plaintiff in 2012.
Mr. Cerven may testify as to his
experience with the growth of soybeans,
soybean crop hail losses, as well as
multiple peril claims, including multiple
peril losses in 2012. His testimony may
include claim adjustment and
communications regarding the claim
adjustment. His testimony may include,
but is not limited to, the matters addressed
in his deposition. As this individual is
designated as a "may call" witness,
Defendant does not guarantee his
presence at trial.
10) Mike Gamber Mr. Gamber may testify live at the trial as Plaintiff objects to this
to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of crop hail claims in 2012 for discoverable facts
Plaintiff. His testimony may include through the summary
matters relating to the adjustment of hail statement of facts as
claims for Plaintiff in 2012 and requested by Judge
communications regarding the claims. Scoles and followed up
Mr. Gamber may testify as to his on by Plaintiff's
experience with the growth of soybeans Counsel. Furthermore,
and soybean crop hail losses. As this Plaintiff was not
individual is designated as a "may call" permitted to depose this
witness, Defendant does not guarantee his witness to learn the
presence at trial. facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
11) Jim Baldwin Mr. Baldwin may testify live at the trial as Plaintiff objects to this
to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of crop hail claims in 2012 for discoverable facts
Plaintiff. Mr. Baldwin's testimony may through the summary
include matters relating to the adjustment statement of facts as
of hail claims for Plaintiff in 2012 and requested by Judge
communications regarding the claim. He Scoles and followed up
may testify as to his experience with the on by Plaintiff's
growth of soybeans and soybean crop hail Counsel. Furthermore,
losses. As this individual is designated as Plaintiff was not
a "may call" witness, Defendant does not permitted to depose this
guarantee his presence at trial. witness to learn the
facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
12) Craig Polson Mr. Polson may testify live at the trial as Plaintiff objects to this
to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of crop hail claims in 2012 for discoverable facts
Plaintiff. His testimony may include through the summary
matters relating to the adjustment of hail statement of facts as
claims for Plaintiff in 2012 and requested by Judge
communications regarding such claims. Scoles and followed up
Mr. Polson may testify as to his on by Plaintiff's
experience with the growth of soybeans Counsel. Furthermore,
and soybean crop hail losses. As this Plaintiff was not
individual is designated as a "may call" permitted to depose this
witness, Defendant does not guarantee his witness to learn the
presence at trial. facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
13) Clay Manes Mr. Manes may testify live at the trial as Plaintiff objects to this
to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of crop hail claims in 2012 for discoverable facts
Plaintiff. His testimony may include through the summary
matters relating to the adjustment of hail statement of facts as
claims for Plaintiff in 2012 and requested by Judge
communications regarding the claim. Mr. Scoles and followed up
Manes may testify as to his experience on by Plaintiff's
with the growth of soybeans and soybean Counsel. Furthermore,
crop hail losses. As this individual is Plaintiff was not
designated as a "may call" witness, permitted to depose this
Defendant does not guarantee his witness to learn the
presence at trial. facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
14) Craig Woodford Mr. Woodford may testify live at the trial Plaintiff objects to this
as to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of the crop hail insurance discoverable facts
claim at issue, including matters relating through the summary
to the claim adjustment and statement of facts as
communications regarding the claim. He requested by Judge
may testify as to his experience with the Scoles and followed up
growth of soybeans and soybean crop hail on by Plaintiff's
losses. As this individual is designated as Counsel. Furthermore,
a "may call" witness, Defendant does not Plaintiff was not
guarantee his presence at trial. permitted to depose this
witness to learn the
facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
15) Curt Thompson Mr. Thompson may testify live at the trial Plaintiff objects to this
as to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of the crop hail insurance discoverable facts
claim at issue, including matters relating through the summary
to claim adjustment and communications statement of facts as
regarding the claim. He may testify as his requested by Judge
experience with the growth of soybeans Scoles and followed up
and soybean crop hail losses. As this on by Plaintiff's
individual is designated as a "may call" Counsel. Furthermore,
witness, Defendant does not guarantee his Plaintiff was not
presence at trial. permitted to depose this
witness to learn the
facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
16) Don Carlson Mr. Carlson may testify live at the trial as Plaintiff objects to this
to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of the crop hail insurance discoverable facts
claim at issue, including matters relating through the summary
to claim adjustment and communications statement of facts as
regarding the claim. He may testify as to requested by Judge
his experience with the growth of Scoles and followed up
soybeans and soybean crop hail losses. As on by Plaintiff's
this individual is designated as a "may Counsel. Furthermore,
call" witness, Defendant does not Plaintiff was not
guarantee his presence at trial. permitted to depose this
witness to learn the
facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
17) Curtis Winquist Mr. Winquist may testify live at the trial Plaintiff objects to this
as to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of the crop hail insurance discoverable facts
claim at issue, including matters relating through the summary
to claim adjustment and communications statement of facts as
regarding the claim. He may testify as to requested by Judge
his experience with the growth of Scoles and followed up
soybeans and soybean crop hail losses. As on by Plaintiff's
this individual is designated as a "may Counsel. Furthermore,
call" witness, Defendant does not Plaintiff was not
guarantee his presence at trial. permitted to depose this
witness to learn the
facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
18) Steven Kevorkian Mr. Kevorkian may testify live at the trial Plaintiff objects to this
as to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of the hail claim at issue and discoverable facts
other hail claims of the Plaintiff in 2012. through the summary
As this individual is designated as a "may statement of facts as
call" witness, Defendant does not requested by Judge
guarantee his presence at trial. Scoles and followed up
on by Plaintiff's
Counsel. Furthermore,
Plaintiff was not
permitted to depose this
witness to learn the
facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
19) Rodney Nelson Mr. Nelson may testify live at the trial as
to his communications regarding the
claim adjustment for the crop hail claim at
issue, and his interactions with Plaintiff's
representatives regarding the claim at
issue. He may also testify regarding the
background of crop hail policies and
multiple peril crop insurance policies. Mr.
Nelson's testimony may include, but is
not limited to, the matters addressed in his
deposition. As this individual is
designated as a "may call" witness,
Defendant does not guarantee his
presence at trial.
20) Tim Buckingham Mr. Buckingham may testify live at the Plaintiff objects to this
trial as to the nature and scope of crop hail witness testifying, as he
policies, the adjustment of crop hail was never disclosed as
claims, as well as the adjustment and having knowledge of
assessment of the hail claim at issue and discoverable facts
other hail claims of the Plaintiff in 2012 through the summary
and his communications regarding the statement of facts as
claim at issue. As this individual is requested by Judge
designated as a "may call" witness, Scoles and followed up
Defendant does not guarantee his on by Plaintiff's
presence at trial. Counsel. Furthermore,
Plaintiff was not
permitted to depose this
witness to learn the
facts or substance of his
testimony as requested
by Plaintiff's Counsel
and Judge Scoles.
21) Chuck Eldredge Mr. Eldredge may testify live at the trial
as to his communications and regarding
the claim adjustment for the crop hail
claim at issue, and his interactions with
Plaintiff's representatives and RCIS
personnel regarding the claim at issue. He
may also testify regarding the background
of crop hail policies and multiple peril
crop insurance policies. Mr. Eldredge's
testimony may include, but is not limited
to, the matters addressed in his deposition.
As this individual is designated as a "may
call" witness, Defendant does not
guarantee his presence at trial.
22) Representative of FFIC A representative of FFIC may testify live
at trial in the event the Court should allow
the issue of punitive damages to proceed
to the jury. Such representative will testify
regarding the financial documents of
FFIC previously produced to Plaintiff. As
this individual is designated as a "may
call" witness, Defendant does not
guarantee his presence at trial.
23) Jeff Cameron Mr. Cameron may testify live at the trial
as the adjustment of the Plaintiff's
multiple peril crop insurance claim in
2012. As this individual is designated as a
"may call" witness, Defendant does not
guarantee his presence at trial.
24) Wayne Roush Mr. Roush may testify live at the trial with Plaintiff objects to this
respect to matters relating to the 2012 witness as the entire
Western Research Farm Summary. As substance of his
this individual is designated as a "may testimony is irrelevant
call" witness, Defendant does not and prejudicial and is a
guarantee his presence at trial. nondisclosed witness.
25) Jacqueline Larsen Ms. Larsen may testify live at the trial Plaintiff objects to this
with respect to the claims and damages witness as a
claimed by Plaintiff in this case. As this nondisclosed witness.
individual is designated as a "may call"
witness, Defendant does not guarantee her
presence at trial.
26) Custodian of Records, The custodian of records for the Crawford
Crawford County FSA County FSA office may testify at trial, if
needed, as to the authenticity of Plaintiff's
FSA records. Defendant will subpoena the
custodian to appear if his/her appearance
is necessitated.
27) Custodian of Records, The custodian of records for the Monona
Monona County FSA County FSA office may testify at trial, if
needed, as to the authenticity of Plaintiff's
FSA records. Defendant will subpoena the
custodian to appear if his/her appearance
is necessitated.
28) Custodian of Records, The custodian of records for the
Woodbury County FSA Woodbury County FSA office may testify
at trial, if needed, as to the authenticity of
Plaintiff's FSA records. Defendant will
subpoena the custodian to appear if
his/her appearance is necessitated.
29) Custodian of Records, The custodian of records for Berne Coop
Berne Coop Assn. Association may testify at trial, if needed,
as to the authenticity of Plaintiff's records.
Defendant will subpoena the custodian to
appear if his/her appearance is
necessitated.
30) Custodian of Records, The custodian of records for Mapleton
Mapleton Grain Co. Grain Company may testify at trial, if
needed, as to the authenticity of Plaintiff's
records. Defendant will subpoena the
custodian to appear if his/her appearance
is necessitated.
31) Custodian of Records, The custodian of records for ProAg may
ProAg Ins. Co. testify at trial, if needed, as to the
authenticity of Plaintiff's records.
Defendant will subpoena the custodian to
appear if his/her appearance is
necessitated.
32) Custodian of Records, The custodian of records for Pioneer HI-Bred
Pioneer Hi-Bred Intl., Inc. International, Inc., may testify at
trial, if needed, as to the authenticity of
Plaintiff's records. Defendant will
subpoena the custodian to appear if
his/her appearance is necessitated.
33) Defendant also reserves the right to call any witness designated by the Plaintiff or otherwise disclosed during discovery.
34) Defendant also specifically reserves the right to call any witnesses necessary to address claims presented by Plaintiff at trial that were previously withdrawn if the Court should allow the presentation of the same.
All parties are free to call any witness listed by an opposing party. A party listing a witness guarantees his or her presence at trial unless it is indicated otherwise on the witness list. Any objection to the offer of testimony from a witness on the witness list is waived if it is not stated on this list.
IV. EVIDENTIARY AND OTHER LEGAL ISSUE:
A. Plaintiff(s) Issues:
1. Did Defendant breach the insurance contract?
a. Elements of a breach of insurance contract cause of action:
i. Plaintiff was insured for the loss by Defendant on the date of the loss.
ii. Plaintiff paid the premiums that were due.
iii. Plaintiff suffered a loss which was covered by the insurance policy with Defendant.
iv. Defendant did not pay the Plaintiff's claim pursuant to the insurance policy.
v. The amount of damages.
b. Plaintiff states that it is believed the issues for trial as disputed by Defendant are (iv) and (v).
2. Did Defendant commit bad faith in the handling of the insurance claim?
a. Elements of a bad faith cause of action:
i. Defendant delayed, denied, or failed to adequately investigate Plaintiff's claim for benefits; underpaid benefits, delay in adjusting the fields, then for the next several months leading plaintiff to believe that the claim would be favorably settled without being required to go through a joint appraisal
ii. There was no reasonable basis for delaying, denying, or failing to adequately investigate Plaintiff's claim for benefits; underpaid benefits, delay in adjusting the fields, then for the next several months leading plaintiff to believe that the claim would be favorably settled without being required to go through a joint appraisal
iii. Defendant knew or had reason to know that there was no reasonable basis for delaying, denying, or failing to adequately investigate Plaintiff's claim for benefits; underpaid benefits, delay in adjusting the fields, then for the next several months leading plaintiff to believe that the claim would be favorably settled without being required to go through a joint appraisal
iv. The delay, denial, or failure to adequately investigate, underpaid benefits, delay in adjusting the fields, then for the next several months leading plaintiff to believe that the claim would be favorably settled without being required to go through a joint appraisal was a cause of damage to Plaintiff.
v. The nature and extent of damage.
3. Is Plaintiff entitled to punitive damages?
a. Elements of a claim for punitive damages:
i. Preponderance of clear, convincing and satisfactory evidence that Defendant's conduct or lack of conduct constituted a willful and wanton disregard for the rights of Plaintiff and caused damage to the Plaintiff.
ii. Punitive damages are allowed to punish or discourage the Defendant and others from like conduct in the future.
iii. There is no exact rule to determine the amount of punitive damages, if any, that a jury should award, but the following can be considered:
1. The nature of Defendant's conduct.
2. The amount of punitive damages which will punish and discourage like conduct by Defendant in view of their financial condition.
3. The Plaintiff's actual damages.
4. Relevant to the issues raised above, there will be evidence presented concerning the fact that the adjustment of the soybean fields by Defendant violated the requirements of the NCIS soybean manual (deposition exhibit 37), adopted by reference in the insurance contract.
5. Relevant to the issues raised above, there will be evidence presented concerning the fact that the adjustment of the soybean fields by Defendant violated the requirements of Defendant's 2012 Crop-Hail Loss Adjustment Manual (deposition exhibit 40).
6. Relevant to the issues raised above, there will be evidence presented concerning the fact that Defendant failed to adequately stage the soybean crop using the information in its own file and applying the requirements of the time interval charts contained within the NCIS soybean manual.
7. Relevant to the issues raised above, there will be evidence presented that Defendant's failure to adequately stage the soybean crop resulted in a significant underpayment of the soybean crop, as Defendant failed to consider and pay for defoliation losses on the soybean crop.
8. Relevant to the issues raised above, there will be evidence presented that 7,934 soybean acres were submitted under the September 2012 soybean claim, and Defendant's adjusters only adjusted 3,175 soybean acres of land according to their own field notes.
9. Relevant to the issues raised above, there will be evidence presented that 7,934 soybean acres were submitted under the September 2012 soybean claim, and Defendant's adjusters only adjusted 4,422.50 soybean acres of land according to their own screen shots.
10. Relevant to the issues raised above, there will be evidence presented that according to Defendant's records, 6,500 soybean acres or more contained test strips following the September 2012 soybean claim, and Defendant's adjusters only adjusted 3,175 soybean acres of land according to their own field notes.
11. Relevant to the issues raised above, there will be evidence presented that according to Defendant's records, 6,500 soybean acres or more contained test strips following the September 2012 soybean claim, and Defendant's adjusters only adjusted 4,422.50 acres of land according to their own screen shots.
12. Relevant to the issues raised above, Defendant has elected to defend this claim, asserting that drought was a cause of the loss sustained by Plaintiff. Plaintiff states that drought is not a consideration or used in determining hail loss, and there will be an evidentiary issue concerning the relevancy and admissibility of any drought related testimony at trial.
13. Relevant to the issues raised above, Defendant has elected to defend this claim by referring to claims made under a separate Multi-Peril insurance policy for the 2012 year. Plaintiff states that the Hail insurance policy that is the issue in this case is separate, distinct, and independent of any other policies of insurance, and there will be an evidentiary issue concerning the relevancy and admissibility of any Multi-Peril insurance claim documents or claims related testimony at trial.
B. Defendant(s) Issues:
1. Whether Defendant breached the terms of the crop hail insurance contract with Plaintiff?
2. If there was a breach of the crop hail insurance contract with Plaintiff, whether Defendant's breach was in bad faith?
a. Whether the amount of money due to the Plaintiff under its crop hail insurance policy was fairly debatable?
b. Whether the Defendant knew or had reason to know that its determination with respect to the amount due to the Plaintiff under the crop hail insurance policy was unreasonable?
3. Whether Plaintiff can recover emotional distress or mental distress damages?
a. Whether Plaintiff as a business entity can recover emotional distress damages?
b. Whether damages alleged to have been incurred by an individual can support a emotional distress claim of a business entity?
c. Whether sufficient proof exists to establish an emotional distress claim if there is no financial hardship incurred?
4. Whether Plaintiff has established a prima facie case for punitive damages?
5. Whether there are any damages flowing from the alleged bad faith which are not subsumed in the claim for punitive damages?
a. Whether a claim for bad faith should be submitted if there is also a claim for punitive damages?
6. Whether Plaintiff can recover attorney's fees in this action?
a. Whether the Defendant acted vexatiously, wantonly, or for oppressive reasons?
b. The extent and type of proof needed to establish attorney's fees?
7. Whether Plaintiff can introduce evidence of the net worth or financial condition of Defendant prior to the Court determining if Plaintiff has established a prima facie case to support a claim for punitive damages?
a. If the Court determines that Plaintiff has made a prima facie case for punitive damages, what type of financial information with respect to the Defendant is admissible?
8. Whether Plaintiff can introduce evidence of the net worth or financial condition of the parent companies or associated companies of the Defendant?
9. Whether Plaintiff can make references to the Defendant's parent company or the parent companies of Defendant's managing general agent, Rural Community Insurance Agency, Inc.?
a. Whether Plaintiff can offer evidence of the acquisition of Rural Community Insurance Agency, Inc.?
10. Whether Bruce Babcock, an expert designated by Plaintiff, can offer testimony in this matter as his opinions are based upon and address only matters relating to settlement discussions, and accordingly are deemed inadmissible by Fed.R.Evid. 408?
11. Whether portions of the opinions of David Tritsch should be striken and testimony as to the same excluded at trial?
a. Whether the opinions offered by David Tritsch in his second supplemental report are not timely and should be excluded?
b. Whether certain of the opinions of David Tritsch are outside the scope of expert testimony and should be excluded at trial?
12. Whether a witness, Jessica Bruhn, not identified by Plaintiff as having firsthand knowledge of the facts of this case during the course of discovery can offer testimony regarding the claims and damages requested by Plaintiff?
13. Whether communications between the parties or representatives of the parties in the nature of settlement discussions/negotiations are admissible at trial?
14. Whether portions of pleadings offered by Defendant during the Eighth Circuit appeal are admissible?
15. Whether portions of pleadings offered by Defendant in conjunction with the filing of Defendant's motion for summary judgment are admissible?
IT IS SO ORDERED.
Source: Leagle
