United States District Court, C.D. California
HOLLYWAY CLEANERS & LAUNDRY COMPANY INC.; MILTON CHORTKOFF; BURTON CHORTKOFF; EDYTHE CHORTKOFF; and WILMA CHORTKOFF, Plaintiffs,
CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA INC.; and DOES 1 through 30, Defendants.
ORDER EXCLUDING FORM PCL 7-81 FROM POLICY &
SETTING BENCH TRIAL ON COVERAGE
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
Court has recited the facts of this case in several other
orders. (See, e.g., Nov. 7, 2016 Order, ECF No. 93.)
On December 28, 2017, Plaintiffs requested an evidentiary
hearing to explore the foundation underlying Jeffery
Ogle's testimony regarding the genesis of the subject
insurance policy (the “Policy”). (Req. for Evid.
(“Request”), ECF No. 162.) On February 14, 2018,
the Court heard Ogle's testimony. (Mins., ECF No. 166.)
Plaintiffs challenged whether Ogle, who purportedly compiled
the Policy, has the requisite personal knowledge to have
recreated the Policy underlying this coverage dispute.
(Id. at 2.) Particularly suspect, Plaintiffs allege,
is Form PCL 7-81, which does not appear on the Declarations
page of the Policy, and bears no other identifying
information that would associate it with the Policy. The
parties simultaneously filed briefing explaining their
positions regarding the import of Ogle's testimony. (ECF
Nos. 169-70.) After considering the evidence, pursuant to
Federal Rule of Evidence 104(a), the Court finds Ogle does
not have the requisite personal knowledge to testify
regarding whether Form PCL 7-81 is part of the Policy.
Accordingly, the Court EXCLUDES Form PCL
undisputed that the original Policy has long been lost or
otherwise unavailable. Ogle presented a collection of
documents he claimed to be the Policy in his declaration. The
fact that an insurance policy is lost or destroyed does not
prohibit an insured from asserting coverage under the missing
policy, if the insured can prove its contents through other
means. Dart Indus., Inc. v. Commercial Union Ins.
Co., 28 Cal.4th 1059, 1070-71 (2002) (discussing and
approving of two cases where insured proved it was entitled
to coverage where the policy was lost, but the contents were
proven through secondary evidence). The burden rests on the
insured to prove it was covered by the policy, and on the
insurer to prove the substance of any policy provision
essential to the insurer's defense. Id. at 1071.
may present testimony of a witness with personal knowledge to
establish the contents of a lost or destroyed insurance
policy. Id. at 1070; see also Rogers v.
Prudential Ins. Co., 218 Cal.App.3d 1132, 1137 (1990)
(holding where an insurance policy is lost or destroyed, a
party may prove its contents through “an unsigned copy
or by oral evidence”). However, “[a] witness may
testify to a matter only if evidence is introduced sufficient
to support a finding that the witness has personal knowledge
of the matter.” Fed.R.Evid. 602. “Generally, a
witness must have ‘personal knowledge of the
matter' to which she testifies.” Bemis v.
Edwards, 45 F.3d 1369, 1373 (9th Cir. 1995) (quoting
Fed.R.Evid. 602). Rule 602 “excludes testimony
concerning matter the witness did not observe or had no
opportunity to observe.” United States v.
Lyon, 567 F.2d 777, 783-84 (8th Cir. 1977) (citation
hearing on February 14, 2018, Ogle testified regarding his
knowledge of CNI's practices in assembling
“Fabripak” policies, such as the Policy. Ogle
â¢ He has never been employed as an
underwriter by any insurance company, but has had some
underwriting training through insurance courses (Feb. 14 Tr.
11:9-19, ECF No. 167);
â¢ He does not know who the underwriters were
for CNI that assembled the Policy, nor was he in the
underwriting department or involved in the underwriting
(id. at 20:13-21);
â¢ The file from which he assembled what he
purports to be the Policy did not have any underwriting
documents in it (id at 25:1-5);
â¢ He had never seen the underwriting file
for the Policy, and it has been destroyed (id at
â¢ He never checked to see whether the Form
PCL 7-81 that he included in assembling the Policy was
identical to what was given to Hollyway. While he could not
remember who, someone told him that it was the form that was
being used, and he “accepted that as being
truthful.” (Id. at 70:20-71:71:5.)
clear from Ogle's testimony at the hearing, that he is
simply the last man standing at CNI. Any information he has
about the Policy, and its contents, seems to be passed along
from prior individuals who may have had personal
knowledge. However, Ogle himself could not lay proper
foundation for his belief that PCL 7-81 was included in the
Policy, and thus the Court excludes it. Bemis, 45
F.3d at 1373; see also Kaczmarek v. Allied Chemical
Corp., 836 F.2d 1055, 1060 (7th Cir. 1987) (holding that
witness could not testify as to safety practices ...