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Bauer v. Travelers Home and Marine Insurance Co.

United States District Court, N.D. Alabama, Northwestern Division

January 20, 2017

ROSE BAUER, Plaintiff,


         Plaintiff, Rose Bauer, commenced this action in the Circuit Court of Lauderdale County, Alabama, asserting claims of breach of contract and bad faith against The Travelers Home and Marine Insurance Company (“Travelers”), which had issued a homeowners insurance policy to plaintiff.[1] Travelers denied a claim for property damages caused by vandalism to plaintiff's home, and awarded plaintiff only a limited amount for loss of personal property due to theft, asserting that plaintiff's extended vacancy of the home had rendered her ineligible for coverage under the policy. Travelers filed a timely removal of the case, asserting federal jurisdiction based upon satisfaction of the requirements of the diversity statute, 28 U.S.C. §1332(a).[2] The controversy now is before the court on Travelers' motion for summary judgment, [3] and Travelers' motion to strike the affidavit submitted by plaintiff in opposition to summary judgment.[4] Upon consideration of the motions, briefs, and evidentiary submissions, the court concludes that the motion to strike should be granted, but only in part, and that the motion for summary judgment should be granted in its entirety.


         Travelers requests the court to strike the affidavit plaintiff submitted in support of her response to Travelers' motion for summary judgment.[5] Without question, plaintiff's summary judgment response failed to comply with the Uniform Initial Order, which requires parties opposing summary judgment to set forth their objections to the moving party's claimed undisputed facts, and their own proposed disputed and undisputed facts, in separately numbered paragraphs, and to provide precise record citations to support each disputed and proposed fact.[6] Moreover, plaintiff's brief consists of only four pages, [7] but her attached affidavit, which contains most of her factual contentions and legal arguments, is forty-six pages long.[8]Together, the two documents exceed the thirty-page limit for summary judgment response briefs.[9] Even so, plaintiff unnecessarily added to the length of her affidavit by employing wide page margins and retyping each of defendant's proffered facts. Without those superfluous additions, plaintiff's submission likely would have fallen within the page limitation. For that reason, the court concludes that it will be more efficient to accept plaintiff's submission, despite its non-compliance with the Uniform Initial Order, than to require plaintiff's attorney to re-format the submission. The court also does not find it necessary to address every objection raised by defendant. To do so would take more pages than addressing the merits of plaintiff's claims. In addition, the court simply will disregard affidavit statements that are conclusory, hearsay, speculation, not within plaintiff's personal knowledge, or improper opinion testimony. Such statements will not be stricken, but they will not be considered in ruling on defendant's motion for summary judgment.

         Instead, the only objections that need to be addressed in any detail are those based upon inconsistencies between plaintiff's deposition and affidavit testimony.

         To support such objections, Travelers has invoked the “sham affidavit” rule, which provides that a court

may determine that an affidavit is a sham when it contradicts previous deposition testimony and the party submitting the affidavit does not give any valid explanation for the contradiction. See Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656 (11th Cir. 1984). However, “[t]his rule is applied sparingly because of the harsh effect it may have on a party's case.” Allen v. Bd. of Pub. Educ. for Bibb County, 495 F.3d 1306, 1316 (11th Cir. 2007). As such, courts must “find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.” Id.

Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010) (alteration in original).

         The first portion of plaintiff's affidavit challenged by Travelers is a response to Travelers' statement that “[p]laintiff lived in a rental house in Los Angeles from October 2013 to the present.”[10] Plaintiff stated that she “did not rent the Los Angeles house. Rather, I assisted my friend, the Los Angeles homeowner, in getting out of foreclosure, in exchange for accommodating myself and my dogs. The cost was approximately the same.”[11] Travelers asserts that those statements contradict the following passages from plaintiff's previous deposition testimony:

Q. Okay. All right. We are going to go through these in detail.
I just wanted to make sure that we're on the same page - A. Right.
Q. - but these are your documents in support of your damages in this case?
A. Yes.
Q. With the understanding, as you explained previously, that you are still living in the home in California and so therefore you still are incurring rent every month - A. Yes.
Q. - correct? All right. What I want to do before we go through these documents is cover some other things, okay? But we will talk about these because I want to understand what you've given us here today.
A. Okay.
Q. Now, based on the discovery responses that you've previously given us and filed in the case, it is my understanding that you are currently residing at this [redacted] address?
A. Yes.
Q. And, again, that's [redacted] in Los Angeles?
A. Yes.
Q. Now, who is Barbara S. Brody?
A. She is the elderly lady that I rent from.
Q. How long have you lived at [redacted] Avenue?
A. I moved from [redacted] to there [during] October of 2013.

         Doc. no. 55-5 (Deposition of Rosalee Stella Bauer), at 45-46 (alterations and emphasis supplied). Plaintiff also testified that she had paid $2, 100 a month in rent for the California property since October 1, 2013.[12] Finally, she testified that she sometimes mailed her rent checks to the conservator who manages the estate of Ms. Barbara S. Brody, and sometimes mailed them directly to Ms. Brody's mortgage company.[13]

         Plaintiff's affidavit testimony that she did not rent the home in Los Angeles is inherently contradictory to her testimony that she did rent the home. Simply because plaintiff sometimes made her payments directly to her landlord's mortgage company does not change the nature of the rental agreement. The challenged statements will be stricken from plaintiff's affidavit.

         The other portions of plaintiff's affidavit challenged by Travelers all relate to the contents that remained in plaintiff's Florence, Alabama home after she moved to California. The first contested statements are found in the following passages:

After closing my art and antiques gallery in Florence, Alabama, in 2008, I brought many pieces of high-quality antique furniture from my gallery to my home. However, before departing for California, when I needed to raise funds for my business travel, my dear friend Judy Sizemore offered to purchase my high-quality 8-seater mahogany dining room set. I, who am in the business of buying and selling furniture incessantly, often acquire or sell furniture, sometimes including personal furniture. Ms. Sizemore additionally purchased a few other items of furniture (a sofa and chairs) from me for Ms. Sizemore and for her son's home at that time. Nonetheless, I continued to maintain personal property, furniture, and other contents of my home in my home after departing for destinations including California, and all of that personal property, furniture, and other contents remained in my home in Florence, Alabama until January 28, 2013, when my Florence home was burglarized, resulting in the theft of many items of personal property, furniture, and other contents of my home. Travelers recognized this and paid me $18, 749.16 for some of it.

Doc. no. 61-2 (Affidavit of Rose Bauer), at ECF 5.

         Plaintiff also made the following statements in response to Travelers' assertion that, “[i]n August 2012, Ms. [Carmen] Erdmann [plaintiff's neighbor] and Mr. [Clint]

         Pittman [a potential renter] walked through [plaintiff's Florence] house and noted only a few items of furniture and that the house contained no toiletries or linens”:[14]

Disputed that there were “only a few items of furniture” to be seen and that there were no linens to be seen. Just prior to this period of my medical convalescence, Deborah Ford Rogers had lived in my house for many months. I do not know one way or another whether or not Deborah replenished the toiletries before departing the house. I do know Deborah used my towels and linens while staying there. Ms. Erdman had not been present in my house for several years prior to her visit that day with Mr. Pittman. (Ms. Erdman did not know how much or little furniture I normally maintained in my home in this period or in other periods.) I submit that present in the house were my queen-size bed, my multimedia entertainment center (including television set), my antique chest of drawers, my chairs, my writing desk, office furniture, dishes, silverware, a very large refrigerator in the kitchen, a gourmet gas stove, pots and pans, and other items of personal furniture, domestic furnishings, culinary equipment, and pieces of framed artwork and art-quality framed photographs. Nonetheless, . . . I freely concede that I had sold some personal furniture (particularly the dining room set) to my friend Judy Sizemore, as well as items of surplus furniture. It is not very surprising if the lack of a dining room set was noticed by visitors unfamiliar with my recent financial straits.

Doc. no. 61-2 (Affidavit of Rose Bauer), at ECF 7 (ellipsis supplied). Travelers asserts that plaintiff's affidavit testimony is inconsistent with both her prior deposition testimony, and the sworn “Examination Under Oath” to which she submitted during the claims investigation process.

         During her Examination Under Oath, plaintiff was asked why she stored jewelry in a box in her closet when she left for California if she was not planning to be away from home for very long. She responded:

A. Because I was living in the den in the cottage room, and all the other rooms, the back room was empty. Nothing was there. Nothing was left. Judy bought most of the living room stuff.
Q. Okay.
A. So I was pretty much selling everything.
Q. For income?
A. I needed to make some money. I was being foreclosed.
Q. I was just confirming.
A. And Judy can take pictures. I hated that I had to sell my dining room table. I know somewhere I'll show you. It went from my house to Judy's house, all my lamps, everything. But she was the only one who was willing to buy it. And I think sometimes she brought [sic] it just to help me.
Q. So because you were just living basically in one room, you decided to box items up and store them in a closet?
A. Okay. My house costs a fortune to heat. Imagine I can't sell anything. I'm getting sick. The only way I can do anything is to try to get some of the antiques back to LA now. That was the only hope, otherwise I would have nothing.
Q. Okay.
A. So if I stayed in the two side rooms - like I stayed in the den - the den and the little cottage room and one little bathroom, I could keep those rooms warm because I had those little heaters. If I used the big heater, it was like $600 a month and I didn't have it.
Q. Okay.
A. So eventually they were going to turn me off because I couldn't afford it.
Q. So you were using like little space heaters in those smaller rooms?
A. Yes. It was great because I had the den, the sofa. She bought all the living room sofa and all of that.
Q. Who did?
A. Judy.
Q. Judy bought all of that?
A. You can see all of that. She can send us pictures. She bought that. The living room and dining room was huge [sic], and the living room also had these huge French doors. There was all this air. It was just so hard to keep - so I just - that is how I did it. It was the smartest thing for me to do, to consolidate.
Q. So when you left the home in February 2012, essentially the only rooms that were still set up were the den?
A. Yes. Except I did have the entertainment - Deborah at one point stayed in my cottage room but she had her own TV. But I did then put the big TV back into the living room.
Q. What do you call the cottage room? I don't understand.
A. That was a little bedroom by the den in the middle of the house.
Q. Not your bedroom?
A. That was - I made that my bedroom because I kept the den - there was a little cottage room, a bathroom and den.
Q. Okay.
A. I just kind of - that became more of how I consolidated.
Q. You just sort of packed up everything else in the attic?
A. I sold everything I could.
Q. You sold - A. I sold tons of things.

Doc. no. 55-4 (Examination Under Oath of Rose Bauer), at 315-18. During plaintiff's deposition, she confirmed that she “had essentially sold all of [her] items except for what [she] had in the cottage room.”[15]

         The court does not find any inherent inconsistencies in plaintiff's testimony. Even though plaintiff testified during her examination that she sold many of her personal items, she never stated that she sold everything she owned. In fact, she testified that there were still items remaining in her “cottage room.” That is not inconsistent with her subsequent affidavit testimony that she retained a bed, entertainment center, chest of drawers, chairs, writing desk, and office furniture, along with other decorative items, or that she maintained ...

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