RICHARD H. KYLE, District Judge.
This action arises out of a fire at Plaintiff Jeremy Weber's home on September 14, 2009. Weber filed a claim with his insurance company, Defendant Travelers Home and Marine Insurance Company ("Travelers"), which was denied.
The events leading up to the fire are not well explicated in the parties' briefs, even though they are critical to a full understanding of the parties' arguments. Many of the facts set forth below, therefore, are taken from the October 15, 2009 Investigation Report of Deputy State Fire Marshal John Steinbach, who investigated the fire's cause. (See 4/4/11 Mack Aff. Ex. E.)
Through a contract for deed, Weber purchased a house in Sauk Centre, Minnesota, in October 2008. The purchase agreement required him to make $700 monthly payments to the house's previous owners. He obtained a policy from Travelers insuring the house and its contents. Among other things, the policy excluded coverage for any loss "arising out of any act an `insured' commits or conspires to commit with the intent to cause a loss."
The policy imposed certain duties on Weber in the event of a loss, including cooperating with any investigation undertaken by Travelers, submitting a sworn proof of loss containing an inventory of damaged property, and sitting for an examination under oath. The policy also provided that "[n]o action can be brought against" Travelers if there were anything
In March 2009, Weber was laid off from his job, and he was unable to find other employment. Two months later, a fire in the house's kitchen, which Weber attributed to "bump[ing] a knob on the stove," caused significant damage. He submitted a claim to Travelers, which paid him more than $52,000. He then set about repairing the damage. The interior of the house was largely gutted; most of the electrical supply was disconnected, and the house was stripped to the frame and contained no working appliances. During remodeling, Weber lived in a travel trailer parked in his backyard. The house was otherwise unoccupied.
According to Weber, on September 13, 2009, he was at his house until approximately 12:00 p.m. After boarding up some windows and locking the doors, he drove, with his traveler trailer in tow, to Mabel Murphy's, a restaurant and bar in Fergus Falls, Minnesota, approximately 65 miles away along Interstate 94. There, he watched a Vikings football game, after which he visited his brother and sister-in-law, who live near Fergus Falls. He then returned to Mabel Murphy's, where he drank heavily and sang karaoke. At approximately midnight he took his van to get gas and then returned to Mabel Murphy's' parking lot. He went into his trailer, "got sick," and fell asleep.
Joanne McQuisten Moe, co-owner of Mabel Murphy's, recalls the events somewhat differently. She told Steinbach that she had known Weber for 12 years and, although she was working the bar during the Vikings game, she did not see him there. She recalled seeing him enter the bar at approximately 8:00 p.m., after which he drank and sang karaoke. He left at approximately 12:30 a.m. on September 14, 2009; when she closed Mabel Murphy's at 2:00 a.m. and left the premises, she saw Weber's travel trailer but did not see his van attached to it. She acknowledged, however, that she did not search for the van, which may have been parked in a nearby lot where patrons often parked on weekends.
At approximately 4:00 a.m. on September 14, 2009, neighbors reported a fire at Weber's house. Despite the efforts of the Sauk Centre Fire Department, the house was largely destroyed. The walls on its west side collapsed and its northwest quadrant was reduced to several feet of ash. The house's remaining sides were heavily damaged and in danger of collapsing. Simply put, the house was a total loss.
Weber, who learned of the fire via a call on his cell phone at approximately 5:00 a.m., submitted a claim to Travelers for the damage. The company, in turn, hired an independent investigator to analyze the origin and cause of the fire.
Deputy State Fire Marshal Steinbach also undertook an investigation at the request of the Sauk Centre Fire Department. That investigation included an examination of the scene, interviews with neighbors, and a review of Weber's financial records. Those records revealed that Weber had maintained two checking accounts in 2009. The first account had been charged overdraft fees on several occasions and had monthly ending balances between five and ten dollars; it was closed in May 2009. The second account was
Steinbach also interviewed Weber at the Sauk Centre Police Department; there, he denied having set the fire. He also denied having any financial problems and indicated that he was current on his bills.
Steinbach also conducted a criminal background check on Weber, which revealed a "lengthy criminal history," including "felony level burglary and theft convictions" and an "extensive criminal driving record." The nature and number of his prior convictions are not specified in the record.
Ultimately, Steinbach was unable to determine the fire's cause from the physical evidence. Nevertheless, he concluded in his October 15, 2009 report:
On November 10, 2009, Travelers wrote Weber and informed him that it would take his examination under oath regarding the fire on November 24, 2009, as permitted under the policy. Weber appeared with counsel and testified as requested; due to scheduling conflicts, however, the examination could not be completed on November 24. The parties agreed to continue it on January 18, 2010. In the interim, however, on January 7, 2010, Travelers wrote to Weber's counsel, advising him that it was
The letter further advised that Weber could "submit a revised Sworn Statement [in] Proof of Loss ... following the completion of [his] examination under oath."
Weber's examination under oath was completed on January 18, 2010. At the conclusion, he indicated that he wanted to read and sign the transcript of the examination, but according to Travelers he never did so. There also exists no evidence that he submitted a revised Sworn Statement in Proof of Loss following the completion of his examination.
On April 24, 2010, Weber commenced the instant action in the Stearns County, Minnesota District Court, alleging that Travelers' failure to pay his claim constituted breach of contract. (Compl. ¶ VI.) He further alleged that Travelers "has claimed, and continues to claim, that it does not have an obligation to pay ... because [he] either burned the said residence by arson or caused another to burn [it]." (Id. ¶ IX.) He asserted that this arson defense was "made in bad faith and in conscious violation of [his] known rights." (Id.)
Invoking diversity jurisdiction, Travelers timely removed the action to this Court.
On January 20, 2011, Weber moved for partial summary judgment, seeking a determination that Travelers "has not established the affirmative defense of arson." (Doc. No. 36.) He noticed his Motion for a hearing on March 11, 2011—before the close of discovery. On February 4, 2011, Travelers cross-moved for summary judgment (Doc. No. 41), noticing its Motion for a hearing on May 23, 2011. By Order dated March 1, 2011, 2011 WL 1757563 (Doc. No. 45), the Court concluded to hear these Motions together, once discovery had closed. Accordingly, it denied Weber's Motion without prejudice.
Following the close of discovery, Weber re-filed his partial-summary-judgment Motion (Doc. No. 46).
Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. Id. at 322, 106 S.Ct. 2548; Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir. 2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir. 2009); Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.2007). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078-79 (8th Cir. 2008).
Where, as here, the Court confronts cross-motions for summary judgment, this approach is only slightly modified. When considering Travelers' Motion, the Court views the record in the light most favorable to Weber, and when considering Weber's Motion, the Court views the record in the light most favorable to Travelers. "Either way, summary judgment is proper if the record demonstrates that there is no genuine issue as to any material fact." Seaworth v. Messerli, Civ. No. 09-3437, 2010 WL 3613821, at *3 (D.Minn. Sept. 7, 2010) (Kyle, J.), aff'd, 414 Fed. Appx. 882 (8th Cir.2011).
In his Motion, Weber mounts a frontal assault on the seminal case of Quast v. Prudential Property & Casualty Co., 267 N.W.2d 493 (Minn.1978), a case his counsel labels "obnoxious." (Doc. No. 38 at 1.) Because that case is key to the Court's analysis, it is discussed in some detail below.
In Quast, the plaintiff had purchased a home with the intention of residing there until he remodeled and resold it, but financial difficulties caused him to list it for sale sooner than expected. 267 N.W.2d at 493-94. The house languished on the market for several months and was still for sale when it was destroyed by an explosion and fire that occurred at approximately 10 p.m. on the night in question. Id. at 494. At the time the fire broke out the plaintiff "was at a bar where he claimed to have been since approximately 7 p.m., when he left his home after locking all the doors." Id.
After the plaintiff's insurance company denied his claim, he sued for payment of the policy proceeds. At trial, the insurer offered evidence that an accelerant had been used to start the fire, and there was no other evidence indicating an accidental
The Minnesota Supreme Court affirmed. It noted that while the evidence introduced by the insurer was "largely circumstantial," courts routinely permitted such evidence "to support the inference that the insured set the fire or arranged to have it set":
Id. at 495-96 (citations omitted). Following Quast, Minnesota courts have repeatedly held that "[e]vidence of [a] fire's incendiary nature, combined with evidence of motive, is sufficient to support a finding of arson." Reitzner v. Am. Family Mut. Ins. Co., No. A08-0747, 2009 WL 910998, at *4 (Minn.Ct.App. Apr. 7, 2009) (internal quotation marks and citation omitted); accord, e.g., Summit Fid. & Sur. Co. v. Don Stern Enters., Inc., No. CE-95-2099, 1996 WL 266419, at *3 (Minn.Ct.App. May 21, 1996); Montgomery v. N. Star Mut. Ins. Co., No. C2-93-64, 1993 WL 430347, at *1 (Minn.Ct.App. Oct. 26, 1993); DeMarais v. N. Star Mut. Ins. Co., 405 N.W.2d 507, 509 (Minn.Ct.App.1987); see also Minn. Fair Plan v. Neumann (In re Neumann), 374 B.R. 688, 694-95 (Bankr.D.Minn.2007).
Although Quast was the Minnesota Supreme Court's first decision on this issue, it was hardly novel. Indeed, courts had recognized for years that financial motive combined with incendiary origin were sufficient to create a jury question on arson. See, e.g., Raphtis v. St. Paul Fire & Marine Ins. Co., 86 S.D. 491, 198 N.W.2d 505, 509-10 (1972) (collecting cases). That is largely borne of necessity: because "[o]ne could scarcely be expected to set fire to his property in the presence of others," proof in arson cases "consists almost wholly of circumstantial evidence." Klein v. Auto Owners Ins. Co., 39 F.R.D. 24, 26 (D.Minn. 1965) (Devitt, J.) (citations omitted).
Recognizing that Quast provides a serious hurdle for his claim, Weber has put forward a creative argument in an unsuccessful attempt to avoid it. He asserts that Quast created a procedural rule that
Under Erie, "in a suit based on diversity of citizenship jurisdiction[,] the federal courts apply federal law as to matters of procedure but the substantive law of the relevant state." In re Baycol Prods. Litig., 616 F.3d 778, 785 (8th Cir. 2010) (citations omitted). Where a federal procedural rule "control[s] [an] issue" and "leav[es] no room for the operation" of conflicting state law, the state law must yield. Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4-5, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987). But when there is no such collision, the state rule should be applied to accomplish Erie's "twin aims" of discouraging forum shopping and promoting equitable administration of the laws. Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).
Here, the Court concludes that there is no "direct collision" between Quast and Rule 56, because Quast is a substantive rule, not a procedural one.
Accordingly, there is no support for Weber's contention that Rule 56 requires the displacement of Quast. Rather, the two are easily harmonized: an insurer can defend with evidence of motive and incendiary origin (Quast) but will survive summary judgment only if it proffers sufficient evidence to put them genuinely into dispute (Rule 56). It is for this reason that federal courts routinely look to state law when determining how an insurer may prove arson, whether at the summary-judgment stage or otherwise. See, e.g., Ciao Giuseppe, Inc. v. Reliance Ins. Co., 74 F.3d 1245 (Table), 1996 WL 21644, at *1-2 (9th Cir. Jan. 19, 1996) (unpublished) (review of summary judgment); State Auto Prop. & Cas. Ins. Co. v. Hargis, Civ. A. No. 4:09CV-15-M, 2010 WL 1662179, at *2 (W.D.Ky. Apr. 23, 2010) (summary judgment); St. Paul Fire & Marine Ins. Co. v. Salvador Beauty Coll., Inc., 731 F.Supp. 348, 350 (S.D.Iowa 1990) (judgment notwithstanding verdict); Demyan's
Based on the foregoing, the Court is obligated to apply Quast here.
That Quast controls the Court's analysis does not end the inquiry; the Court must apply that case to the facts and determine whether Travelers has proffered sufficient evidence of the fire's incendiary origin and a financial motive for Weber to set the fire. Weber acknowledges that evidence of his poor financial state at the time of the fire is sufficient to satisfy Quast's motive prong. (Pl. Mem. in Supp. at 4.) He argues, however, that Travelers lacks sufficient evidence of the fire's incendiary origin. The Court does not agree.
The crux of Weber's argument concerns the conclusions in Steinbach's October 15, 2009 Investigation Report. He contends that Steinbach's opinion was flawed because it (i) was based on inadmissible evidence (stale criminal convictions), (ii) was not given to a "reasonable degree of professional certainty," and (iii) improperly relied on evidence of Weber's financial condition—the other prong of Quast—to establish incendiary origin. (Id. at 5-9.) He therefore urges the Court to ignore the report's conclusion that he started the fire. And according to Weber, "[i]n the absence of [Steinbach's] opinion, there is insufficient circumstantial evidence" of an incendiary origin because "[t]here is no evidence of where the fire originated," "no evidence of how the fire started," and "no evidence that accelerants, timing devices, fuses, or other material often associated with arson fires, was involved in this" case. (Id. at 9-10.)
It is true that Steinbach could not offer an opinion, based on the physical evidence at the scene, whether the fire was intentionally set. He gave only generalities about where the fire originated. He could not identify accelerants or other flammable chemicals often found in arson cases. His opinion was largely based on Weber's poor financial condition, which the Eighth Circuit has indicated is not relevant to a finding of incendiary origin (only motive). See St. Paul Fire & Marine Ins. Co. v. Salvador Beauty Coll., Inc., 930 F.2d 1329, 1332 (8th Cir. 1991). And his opinion that the fire resulted from arson was, indeed, somewhat equivocal.
Nevertheless, Weber's argument founders because even if the Court were to ignore Steinbach's opinions, there exists other circumstantial evidence in the record creating a genuine issue for trial. First, Weber submitted a claim for fire damage barely four months before the fire in question here. Courts have noted that several fires in short succession suggest arson. See, e.g., Arms v. State Farm Fire & Cas. Co., 731 F.2d 1245, 1249 (6th Cir. 1984); Cora Pub, Inc. v. Cont'l Cas. Co., 619 F.2d 482, 484 (5th Cir.1980). Second, Steinbach indicated in an Affidavit that he "attempted, but was unable to identify, an accidental
There also exists other circumstantial evidence suggesting an incendiary origin. For instance, Weber was not home at the time the fire broke out. See DeMarais, 405 N.W.2d at 511. By his own admission, he was the last person in his (otherwise unoccupied) house before the fire began, and he locked the doors and secured the windows before leaving. Furthermore, there is no evidence that anyone other than Weber had the keys to the premises. These are often found to be telltale signs in arson cases. See, e.g., Fitzgerald, 842 F.2d at 159; Ins. Co. of N. Am. v. Musa, 785 F.2d 370, 373 (1st Cir. 1986); Hargis, 2010 WL 1662179, at *2; Raphtis, 198 N.W.2d at 509 ("The last person to leave a building before a fire creates a circumstance which courts have deemed important in arson cases.").
When viewed in the light most favorable to Travelers, the record contains sufficient evidence from which a jury could find both incendiary origin and financial motive. Weber's Motion, therefore, must be denied.
Notably, the Court would reach the same conclusion even if Quast were not controlling. As discussed above, Weber argues that an insurer cannot survive summary judgment under the "federal rule" without evidence showing, in addition to motive and incendiary origin, that the insured had an "opportunity" to set the fire. (See Pl. Mem. in Supp. at 11, 15.)
That Weber denies being in the area at the time of the fire cannot be dispositive because a jury is free to disbelieve him. His assertion that he "was not in the vicinity of [his] home at the time of the fire merely creates a jury question." Hargis, 2010 WL 1662179, at *2 n. 4; see also Zane v. Home Ins. Co. of N.Y., 191 Minn. 382, 254 N.W. 453, 454 (1934) (fact that plaintiff was in out-of-town hospital for six days before fire not dispositive, as "his participation could be proved by circumstantial evidence").
At bottom, the Court concludes that the record contains sufficient evidence to create a jury question on Travelers' arson defense.
In his Motion, Weber also seeks leave to amend his Complaint to add a cause of action for bad-faith denial of his claim, pursuant to Minnesota Statutes Section 604.18. In pertinent part, that statute provides that an insured may recover costs, attorneys' fees, and similar damages if he can show that his insurer "lacked a reasonable basis for denying the benefits of the insurance policy" and "knew" or acted in "reckless disregard" thereof. Minn.Stat. § 604.18, subd. 2(a). An insured may not allege such a claim in his complaint, but rather must "make a motion to amend the pleadings to claim [such] recovery." Id. subd. 4(a).
Here, Travelers argues that amendment should be denied because it is (1) futile and (2) untimely. (Def. Mem. in Opp'n at 15-20.) The Court agrees with the latter argument and, accordingly, it need not consider the former.
Although leave to amend typically is granted liberally under Federal Rule of Civil Procedure 15, different considerations apply when a party seeks amendment beyond the deadline set in a scheduling order. See, e.g., Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 610 (8th Cir. 2011) ("When a party moves for leave to amend outside the district court's scheduling order, Fed.R.Civ.P. 16(b), not the more liberal standard of [Rule 15], governs."). Under Rule 16(b), a plaintiff seeking an untimely amendment is required to show "good cause to modify
The Pretrial Scheduling Order in this case set October 1, 2010, as the deadline for amendment. Weber's Motion is therefore untimely, and he must make a sufficient showing of good cause to be permitted to amend. The Court determines that he has failed to do so.
Notably, Weber has been alleging from the outset that Travelers' handling of his claim evidenced bad faith. Paragraph 9 of the Complaint—which was filed on April 24, 2010, more than five months before the amendment deadline—alleges that Travelers "has claimed, and continues to claim, that it does not have an obligation to pay... because plaintiff either burned [his] residence by arson or caused another to burn [it]. This claim is made in bad faith and in conscious violation of plaintiff's known rights." (emphasis added).
Weber argues that a motion for leave to assert a bad-faith claim requires a plaintiff to await the close of discovery because it must be supported by sufficient evidence, "which is obviously going to be strongest only after all the evidence produced in discovery is `in.'" (Pl. Reply at 7-8.) But nothing requires a plaintiff seeking such an amendment to await receipt of the "strongest" or "best" evidence to support his motion. Rather, a plaintiff must make only a prima facie showing of bad faith, based on "one or more affidavits showing the factual basis" for the claim. Minn. Stat. § 604.18, subd. 4(a). Discovery need not have closed before a plaintiff can make such a showing. Weber also argues that a "prudent attorney will ordinarily not make a motion to include either punitive damages or bad faith insurance practice until he knows everything that the defendant has to offer." (Pl. Reply at 8.) But the defendant's evidence is irrelevant to the determination. This is made clear by the analogous procedure for amending a complaint to add a claim for punitive damages—when reviewing such a motion, courts look only at the plaintiff's evidence. See, e.g., Harris v. Wal-Mart Stores, Inc., Civ. No. 07-1191, 2007 WL 4284854, at *2 (D.Minn. Nov. 30, 2007) (Kyle, J.) (collecting cases).
Weber has simply failed to point to any evidence he needed to uncover in discovery before bringing his Motion. Under these circumstances, he has not demonstrated "good cause" for failing to seek amendment before the deadline, and his request will be denied.
Travelers argues it is entitled to dismissal of Weber's Complaint for two reasons. First, it argues that this action was prematurely filed because it was still investigating Weber's claim when he commenced
Travelers asserts that it "was in the middle of conducting its claim investigation and had not made a decision with respect to Weber's claim at the time th[is] suit was commenced." (Def. Mem. in Supp. at 13.) Without having actually denied Weber's claim, it argues, he cannot show a breach of the policy. The Court does not agree.
On January 7, 2010, long before Weber filed suit, Travelers sent him a letter advising that it was "rejecting" his Sworn Statement in Proof of Loss. While this letter did not use the magic words "deny" or "denial," the Court fails to see a practical difference. Travelers is attempting to hide behind semantics—its "rejection" was, in the Court's view, the functional equivalent of a denial. Were it otherwise, insurers could "reject" claims without actually "denying" them, thereby avoiding the various statutory protections afforded to Minnesota insureds. See, e.g., Minn. Stat. § 72A.20, subd. 12(5) (unlawful for insurer to "fail[] to affirm or deny coverage within a reasonable time") (emphasis added); Minn.Stat. § 72A.201, subd. 4(3)(i) (providing 30 days for insurer to "inform the insured ... of [its] acceptance or denial of a claim ... unless the investigation cannot reasonably be completed within that time") (emphasis added).
Moreover, the letter provided that Travelers' investigation would not be finished until "Weber's examination under oath is completed and the investigation by the fire marshal for the State of Minnesota is also completed." Yet, Steinbach's investigation was complete on October 15, 2009, three months before the letter was sent, and Weber's examination under oath was completed on January 18, 2010. In other words, by Travelers' own acknowledgement, it possessed the information necessary to decide Weber's claim several months before he filed suit. There is no indication in the record, however, that Travelers took any steps during those months to do so.
In these circumstances, the Court believes that Travelers, at a minimum, constructively denied Weber's claim. Notably, Minnesota courts have recognized that an insurer can constructively deny a claim through its conduct. See, e.g., Perry v. State Farm Mut. Auto. Ins. Co., 506 F.Supp. 130, 134 (D.Minn.1980) (MacLaughlin, J.); In re Claims for No-Fault Benefits Against Progressive Ins. Co., 720 N.W.2d 865, 871 n. 2 (Minn.Ct.App.2006).
Accordingly, the Court rejects Travelers' argument that this action should be dismissed as prematurely filed.
Travelers next argues that Weber failed to cooperate with its investigation because he did not sign the transcript of his examination under oath, failed to re-submit a Sworn Statement in Proof of Loss, and failed to provide authorizations for his cell phone records. (Def. Mem. in Supp. at 16.) As a result, it contends that this action must be dismissed because Weber transgressed the policy's "suit against us" clause, which provides that "[n]o action can be brought against us unless there has been full compliance with all of the terms ... of this policy." This argument fails.
The Court has recently been down this road. In Martin v. State Farm Fire & Casualty Co., 794 F.Supp.2d 1017, 2011 WL 2437060 (D.Minn. June 16, 2011) (Kyle, J.), a case with remarkably similar facts to the instant action, the plaintiff Martin's home suffered fire damage; State Farm denied his claim on several grounds and, when he sued, it moved for summary judgment, arguing that the action was barred because Martin had failed to (i) timely submit a Sworn Statement in Proof of Loss and (ii) sit for an examination under oath, thereby violating several cooperation clauses in his policy. The Court rejected this argument because "[i]t has long been recognized in Minnesota" that a timely proof of loss and an examination under oath are not "condition[s] precedent to suit," but rather "condition[s] precedent to recovery." Id. at 1022, at *4 (emphases in original) (collecting cases). The Court perceives no reason to deviate from Martin or repeat herein the analysis in that case. For the reasons stated in Martin, the Court rejects Travelers' argument that Weber's "failure to fulfill [his] duties of cooperation under the [p]olicy precludes him from bringing this action against Travelers." (Def. Mem. in Supp. at 16 (emphasis added).) And it makes no difference that Weber's policy expressly provided that cooperation was a condition precedent to suit—as noted in Martin, such a provision cannot be enforced. See 794 F.Supp.2d at 1022-23, 2011 WL 2437060, at *5 (citing Greene v. W. Bend Mut. Ins. Co., No. A10-1031, 2011 WL 292151, at *2-3 (Minn.Ct.App. Feb. 1, 2011)).
The undersigned also noted in Martin that an "insured's failure to timely submit a proof of loss is not fatal to his claim unless the insurer can `show it was prejudiced' as a result." 794 F.Supp.2d at 1024, 2011 WL 2437060, at *6 (quoting Nathe Bros., Inc. v. Am. Nat'l Fire Ins. Co., 615 N.W.2d 341, 347 (Minn.2000)). Travelers has nowhere argued that Weber's ostensible "lack of cooperation" was prejudicial, and there is no prejudice evident to the Court. Notably, Weber has submitted to an examination under oath; he simply has not signed the transcript of that examination. It would be difficult for Travelers to
Based on the foregoing, and all the files, records, and proceedings herein,
