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Daryl Gregory and Shirley v. Nationwide Mutual Insurance Company

December 18, 2012

DARYL GREGORY AND SHIRLEY GREGORY, PLAINTIFFS,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, A OHIO CORPORATION; ALLIED PROPERTY & CASUALTY INSURANCE COMPANY, A IOWA CORPORATION; AND DOES I THROUGH X, DEFENDANTS



ORDER

On September 25, 2009, plaintiffs filed a complaint in Sutter County Superior Court, alleging that defendants breached a homeowner's insurance contract and the implied covenant of good faith and fair dealing in denying coverage for a claim. ECF No. 7 at 2. Defendants removed the action to this court on July 16, 2010, based on 28 U.S.C. § 1332. ECF No. 1.

On October 12, 2011, defendants filed a motion for summary judgment. ECF No. 17. Plaintiffs have opposed the motion, ECF No. 31, and defendants have replied, ECF Nos. 40, 43. The court heard argument on June 8, 2012; Gary Lafayette appeared for defendant and Orrin Grover for plaintiffs. After considering the parties' argument and the evidence and the papers, the court GRANTS the motion for summary judgment, as explained below.

I. Summary Judgment Standard

A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn1

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

II. Admissibility of Evidence

The evidence this court may consider in resolving the parties' competing claims must be admissible: "It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988); FED. R. CIV. P. 56(c)(2). The court will not consider inadmissible hearsay in an affidavit to support or defeat summary judgment. Kim v. United States, 121 F.3d 1269, 1276-77 (9th Cir. 1997); but see Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1121 (2006).

The 2000 Amendments to Federal Rule of Evidence 701 distinguish lay from expert testimony. "[T]he distinction between lay and expert witness testimony is that lay testimony 'results from a process of reasoning familiar in everyday life,' while expert testimony 'results from a process of reasoning which can be mastered only by specialists in the field.'" FED. R. EVID. 701, Notes of Advisory Comm. on 2000 amendments (quoting State v. Brown, 836 S.W.2d 530, 549 (1992)). A witness may provide both lay and expert testimony. Id.

The general rule in the Ninth Circuit is that treating physicians, not specially hired to provide expert testimony, are exempt from Rule 26 requirements. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819 (9th Cir. 2011). It is only ". . . when a treating physician morphs into a witness hired to render expert opinions that go beyond the usual scope of a treating doctor's testimony, the proponent of the testimony must comply with Rule 26(a)(2)." Id. at 819-20.

Here, plaintiffs argue the court should ignore declarations from physicians Dr. Hundal and Dr. Krawiec. ECF No. 31 at 12. Plaintiffs claim that defendants failed to designate the doctors as experts under Rule 26(a)(2) and as required by the court's scheduling order. ECF No. 31-4 at 2. Plaintiffs argue that defendants' expert opinions are inadmissible at trial and should not be considered on summary judgment. ECF No. 31-4 at 2. Plaintiffs cite no persuasive authority to support this position.

Dr. Hundal testified about his examination of Shirley Gregory in her office visit. Dr. Krawiec testified about his examination of Shirley Gregory, the results of laboratory testing performed on two samples of Shirley Gregory's hair and skin, and the treatment plan he developed in collaboration with other medical professionals. Both doctors were treating physicians and percipient witness not hired to render expert opinions. See Goodman, 644 F.3d at 819. Dr. Hundal and Dr. Krawiec were exempt from Rule 26(a)(2) requirements. See FED. R. EVID. 701, Notes of Advisory Comm. on 2000 amendments. This court may consider the doctors' testimony in ruling on the motion.

Plaintiffs also urge the court to ignore the declarations of Debbie Lemenager, a Medical Entomologist with Sutter-Yuba Mosquito Vector Control District, and Nicolas Oliver, Supervising Agricultural & Standards Biologist at the Sutter County Department of Agriculture. ECF No. 31 at 12. Had defendants designated Lemenager and Oliver as experts, and complied with procedural requirements, there would be no prohibition against Lemenager and Oliver giving both lay and expert testimony. See United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007). Here, lay testimony from Lemenager and Oliver is admissible. See Beyene, 854 F.2d at 1181. Expert testimony from Lemenager and Oliver is inadmissible because of defendants' failure to comply with Rule 26(a)(2) requirements. See id.

To clarify, Oliver's statement that he tested an air purifier filter provided by Shirley Gregory and found no evidence of mite infestation is lay testimony. See FED. R. EVID. 701, Notes of Advisory Comm. on 2000 amendments. But Oliver's professional opinion, "If the Gregorys were dealing with a mite infestation, in my experience such an infestation would present visible evidence," is inadmissible expert testimony. See id.; ECF No. 21 at 2.

Lemenager's testimony is admissible in that Lemenager states she visited the Gregory home, collected and tested samples, and found no mites. See id.; ECF No. 20 at 2.

III. Facts*fn2

Plaintiffs own farmland that includes a 3,000 square-foot home, a mobile home, a storage building, and a number of sheds. ECF No. 31-3 at 1. Allied Property & Casualty Insurance Company sold plaintiffs a farm owner's insurance policy on September 20, 2007 under Policy No. FPK FMP 78 0 2930091. Id. at 2. On October 27, 2008, Shirley Gregory contacted defendants to make a claim for a mite infestation in the Gregory home. Id. Muriel Hinsdale, a claims representative, interviewed plaintiffs by telephone. Id. Plaintiffs told Hinsdale a mite infestation began June 20, 2008. Id. Plaintiffs believed the infestation originated with birds on their own or a neighboring property. Id. at 4. Plaintiffs said they burned furnishings, carpet, and clothing in a futile attempt to combat the infestation. Id. at 3. Plaintiffs hired two pest control companies, Zap and Clark's Pest Control, but neither company found mites.*fn3 Id. Plaintiffs contacted Dave Glassel, the owner of a pest control company in Texas. Id. at 4. Glassel, without visiting plaintiffs' property, sold plaintiffs $3500 in products to fight the infestation. Id.

Shirley Gregory took her home air purifier filter to the University of California, Davis Entomology Laboratory to test for mites. Id. The filter tested negative.*fn4 Id. Debbie Lemenager, a Medical Entomologist with the Sutter-Yuba Mosquito Vector Control District, visited the Gregory home and collected samples. Id. at 5-6. Lemenager did not find mites. Id. at 6. Shirley Gregory took the home air purifier filter for testing to Nick Oliver, Supervising Agricultural & ...


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