Free Response - District Court of Arizona - Arizona

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GREENBERG TRAURIG, LLP ATTORNEYS AT LAW SUITE 700 2375 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85012 (602) 445-8000 John R. Clemency, SBN 009646 Tajudeen O. Oladiran, SBN 021265 Attorneys for Plaintiff, SG NEW YORK. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA SG NEW YORK LLC, a Delaware limited liability company, and the successor-in-interest to Pennysaver News of Brookhaven, Inc. and Carrier Pigeon of Long Island, LLC, Plaintiff v. HARTFORD CASUALTY INSURANCE COMPANY, an Indiana corporation, Defendant. This Response is filed by Plaintiff, SG New York LLC ("SGNY" or "Plaintiff"), in response to the Hartford Casualty Insurance Company's ("Hartford") objections to Plaintiff's designations of depositions to be offered at trial. See joint "Proposed Pretrial Form of Order" dated July 25, 2005, Section I. I. Defendant's General Objection #1 (Section I, page 13, lines 8-12) Defendant objected to Plaintiff's designations of testimony from the depositions of Ellen Murray, Anthony Sementilli, Richard Megenedy, and Steve Mazer. Plaintiff NO. CV 2003-1207-PHX-SMM PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PLAINTIFF'S DESIGNATIONS OF DEPOSITION TESTIMONY

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remedied this objection prior to the submission of the joint Proposed Pretrial Form of Order. As filed on July 25, 2005, "Plaintiff's Designations of Deposition Testimony For Trial" does not include designations for any person that the Defendant has represented will offer live testimony at trial. II. Defendant's General Objection #2 (Section I, page 13, lines 13-19) Defendant objected to Plaintiff's designations of testimony from the depositions of Fred Jenkins, Joseph Higgins and Jeff Stiles, alleging that "Plaintiff's designations, as presently identified, interrupt many answers and begin in the middle of some answers. Additionally, Plaintiff's apparent effort to read virtually the entire deposition of Fred Jenkins includes numerous questions that result in "I don't know" answers." See joint Proposed Pretrial Form of Order, Section I, page 13, lines 13-19. Generally, Plaintiff's designations of deposition testimony is more inclusive than the Defendant's because Plaintiff's designations includes testimony responsive to Defendant's designations. Defendant's designations provide only sound bites from

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deponents on issues which, in most cases, took the deponents pages of testimony to explain. Due to the fact that these witnesses will not be appearing at trial, unlike

Defendant, Plaintiff has endeavored to include testimony needed to provide the jury with context and completeness. See Fed.R.Civ.P, Rule 32(a)(4); Fed.R.Evid., Rules 106; Trepel v. Roadway Exp., Inc., 194 F.3d 708 (6th Cir. 1999). Nevertheless, Plaintiff has amended its designations of deposition testimonies to ensure that designated portions do not interrupt any answer or begin in the middle of any
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answer. Plaintiff's "Amended Designations of Deposition Testimony For Trial" is filed contemporaneously herewith. In response to Defendant's objection to Plaintiff's designation of testimony, alleging that Plaintiff's designations "includes numerous questions that result in `I don't know' answers," Plaintiff notes that the fact that Defendants' witnesses claim to not know relevant information shows Defendant's shoddy handling of Plaintiff's Claim, and Plaintiff has the right to relay this lack of knowledge to the jury. Lastly, although Defendant seeks to reduce the number of pages from the Fred Jenkins deposition

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transcript from which Plaintiff has designated testimony,1 Plaintiff maintains that the 52 pages from which it has designated testimony are necessary to provide context and completeness to the 30 pages from which Defendant has designated testimony.2 III. Defendant's Specific Objection #1 ­ Deposition of Harry Beltrani (Section I, page 27, line 20 to page 30, line 3) 1. Page 43, lines 2-19.

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The objection is baseless. The witness answered the question based upon his personal observations, not based upon his discussion with a third party. See Deposition of Harry Beltrani, dated September 14, 2004, page 43, lines 2-19. The question was: "Based on your view of the premises on July 6th, were you of the impression that the computer room had water in it?" The witness responded that he did have an impression that the

Defendant designated testimony from 30 pages, and Plaintiff designated testimony from 52 pages from the Jenkins Deposition. 2 Defendant's objections is further undermined by Defendant's designation of testimony from 43 pages of the deposition transcript of Richard Megenedy.
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computer room had water in it; he then explains that the impression is based upon his personal observations and opinion: " . . . I remember that there was a great concern about the computer equipment and it wasn't operating at the time, and it was in close proximity to the area where the pipe was located . So the conclusion I'm sure I drew at the time was that it had been exposed to water." Deposition of Harry Beltrani, dated September 14, 2004, page 43, lines 14-19 (emphasis added). Obviously, the witnesses is not "reporting his discussion with an unnamed `computer tech'" as alleged by the Defendant. 2. 44 lines 1-7]. The objection is baseless. The witness, an independent insurance adjuster, retained by Defendant, Hartford, is discussing the results of his investigation of the flood, and describing what he wrote in his report that was submitted to Hartford. This statement is not hearsay because it was not offered to prove the truth of the matter asserted. Customarily, in investigating a loss and preparing a report regarding a loss, an insurance adjuster relies in part upon the testimony of witnesses to an incident. The report prepared by this insurance adjuster is what is being discussed in page 44, lines 1-7. In this case, both parties have evidence from eye witnesses regarding the length of time water escaped from the broken sprinkler pipe into the Premises; the insurance adjuster did not testify regarding the veracity of the length of time claimed by third parties; consequently, his testimony is not being offered to prove the truth of the matter asserted. 3. Page 46, lines 1-13. Page 44, lines 107 [Plaintiff assumes that Defendant is referring to Page

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There was no objection on the record of the deposition. Lack of foundation and non-responsiveness are objections which can be cured if presented at the time of the taking of the deposition. These objection are waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). 4. Page 47, lines 2-15.

The witness did not give a response that requires a foundation. The witness is an independent insurance adjuster hired by the Defendant to investigate and evaluate the loss. His response, that it is difficult to say how long it would take to adjust a loss, is obviously based upon his experience, and does not provide a specific time period, for which foundation may be needed.

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5.

Page 51, line 16 ­ page 52, line 17.

There was no objection on the record of the deposition. Lack of foundation is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). 6. Page 62, line 19 ­ page 65, line 1.

Regarding page 62 line 19 ­ page 63 line 1, the witness based his response on his personal "impression," [see page 62, line 25], not based on statements by third parties. The remainder of Page 62, line 19 ­ page 65, line 1 does not in any way concern information the witness may have obtained from third parties.
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7.

Page 63, line 11 ­ page 64, line 4.

The witness is an independent insurance adjuster hired by the Defendant to investigate and evaluate the loss. His response is based upon his experience (as testified to at the deposition, and as attested to by his being hired by the Defendant), and is relevant to determining whether the Flood damaged the Named Insured's telephone system. 8. Page 71, lines 11-23.

There was no objection on the record of the deposition. Lack of foundation is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). 9. Page 74, lines 3-5.

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Regarding the lack of foundation objection, there was no objection on the record of the deposition. Lack of foundation is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). Regarding the relevancy objection, the witness is testifying concerning a statement in his report, wherein he recommended a reserve of $100,000, "Subject to revision." The witness then testifies as to why the recommendation was subject to revision. Since the reserve represents the insurance adjuster's estimation as to the value of the claim (which is a disputed and relevant issue), the reserve recommended by the witness, the first Hartford

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agent to visit the Loss site, is relevant as an independent adjuster's estimated preliminary value of the claim. 10. Page 80, line 1 ­ page 86, line 13.

Regarding the lack of foundation objection, there was no objection on the record of the deposition. Lack of foundation is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). Regarding the relevancy objection, the witness testified about how his personal observations and the results of his investigations differed from the Defendant's stated basis for denying the Claim. As a claims adjuster, hired by Hartford, who personally inspected the loss site, this witness' comparison of his personal observations to the Defendant's stated basis for denying the Claim is relevant to the reasonableness of the Defendant's denial of the Claim. 11. Page 93, lines 1-6.

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This objection is baseless because Defendant does not explain why it would be unfair to read only Page 93, lines 1-6, and why reading lines 7-10 is fair.

12.

Page 94, line 23 ­ page 95, line 7.

There was no objection on the record of the deposition. Lack of foundation and non-responsiveness are objections which can be cured if presented at the time of the
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taking of the deposition. These objection are waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). Regarding the relevancy objection, the witness testified regarding a photograph that he took of the Loss site; these photographs were included in the witness' report to Defendant. The witness' views regarding these photographs are relevant to the physical situation at the Loss site following the Flood, which in directly related to Plaintiff's damages. 13. Page 99, lines 11-13.

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This objection is baseless because Defendant does not explain why or how this section contains hearsay. 14. Page 100, lines 3-8.

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There was no objection on the record of the deposition. Lack of foundation, and vagueness/ambiguous question are objections which can be cured if presented at the time of the taking of the deposition. These objection are waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). IV. Defendant's Specific Objection #2 ­ Deposition of John Hawat (Section I, page 30, lines 4-25) 1. Page 98, lines 9-22.

This objection is baseless because the witness is not a expert; he is a fact witness. This witness was the principal/employee of several of the Named Insured's telephone system maintenance companies. In fact, this witness was involved in installing the

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telephone system that was later damaged by the Flood; in some cases, he was consulted by the telephone system technicians that repaired the Named Insured's telephone system; and, this witness personally inspected the damaged telephone system. Any testimony provided in this case was based upon the witness' personal observation and experience with the Named Insured's specific telephone system. 2. Page 99, lines 3-16.

Regarding the lack of foundation objection, there was no objection on the record of the deposition. Lack of foundation is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). 3. Page 100, lines 4-11.

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This objection is baseless because the witness is not a expert; he is a fact witness. This witness was the principal/employee of several of the Named Insured's telephone system maintenance companies. In fact, this witness was involved in installing the

telephone system that was later damaged by the Flood; in some cases, he was consulted by the telephone system technicians that repaired the Named Insured's telephone system; and, this witness personally inspected the damaged telephone system. Any testimony provided in this case was based upon the witness' personal observation and experience with the Named Insured's specific telephone system. 4. Page 103, lines 11-15.

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Regarding the "non-responsive" objection, there was no objection on the record of the deposition. A "non-responsive" objection is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). V. Defendant's Specific Objection #3 ­ Deposition of James McQuillan (Section I, page 30, line 26 to page 32, line 13) 1. Page 48, line 12 ­ page 49, line 6.

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Regarding the "non-responsive" objection, there was no objection on the record of the deposition. A "non-responsive" objection is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). Regarding the "duplicate expert testimony" objection, the witness is not a expert; he is a fact witness. This witness was the principal/employee of the cleaning and

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restoration company that responded to the Flood, cleaned the premises, and repaired the damaged infrastructure. The witness was at the Loss site on the morning of the Flood and personally witnessed the Flood and the damage to Plaintiff's property. The witness is testifying regarding his experiences with similar floods, and does not in any way provide a technical assessment or technical opinion as would be provided by an expert witness. 2. Page 49, line 18 ­ page 50 line 4.

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Regarding the "non-responsive" objection, there was no objection on the record of the deposition. A "non-responsive" objection is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). Regarding the "duplicate expert testimony" objection, the witness is not a expert; he is a fact witness. This witness was the principal/employee of the cleaning and

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restoration company that responded to the Flood, cleaned the premises, and repaired the infrastructure. The witness was at the Loss site on the morning of the Flood and

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personally witnessed the Flood and the damage to Plaintiff's property. The witness is testifying regarding his experiences with similar floods, and does not in any way provide a technical assessment or technical opinion, as would be provided by an expert witness. 3. Page 53, line 8 ­ page 54, line 17. This witness was the

The witness is not a expert; he is a fact witness.

principal/employee of the cleaning and restoration company that responded to the Flood, cleaned the premises, and repaired the infrastructure. The witness was at the Loss site on the morning of the Flood and personally witnessed the Flood and the damage to Plaintiff's property. The witness' testimony is based upon his personal observation of the Flood and concerns what he expected to encounter as a restoration company following the Flood. This testimony is relevant to showing the reasonableness of the witness' bills, which were

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denied by Defendant as being excessive. The witness does not in any way provide a technical assessment or technical opinion, as would be provided by an expert witness. 4. Page 63, lines 9-24 There was no objection on the record of the deposition. Lack of foundation and non-responsiveness are objections which can be cured if presented at the time of the taking of the deposition. These objection are waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). 5. Page 63, line 25 ­ page 68, line 21. Regarding the lack of foundation objection, there was no objection on the record of the deposition for page 63, line 25 through page 64 line 20. Lack of foundation is an objection which can be cured if presented at the time of the taking of the deposition. This objection is waived if not presented at that time. Fed. R.Civ.P. 32(d)(3)(B); U.S. v. Kearney, 560 F.2d 1358 (9th Cir. 1977). Regarding the "speculative testimony" objection, the witness is testifying regarding the relative humidity at the Loss site on the day of the Flood. This witness personally witnessed the Flood and personally measured the relative humidity in several locations of the Loss site. These relative humidity measurements have been stipulated to by the Defendant as the relative humidity in parts of the Loss site (warehouse and computer room) immediately following the Flood. The testimony in this section shows the witness' familiarity with measurement of relative humidity, which Defendant has already

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stipulated to by accepting the witness' measurements. See Proposed Pretrial Order. P. 10, ¶22. VI. Defendant's Objections to Plaintiff's Designations of the Deposition of Richard Megenedy Plaintiff hereby responds to Defendant objections to Plaintiff's designations of Richard Megenedy's deposition testimony, outlined in "Defendant's Supplemental Designation of Deposition Testimony for Trial" dated August 1, 2005, at page 3. 1. Page 69, line 16 through page 72, line 10.

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This section does not mention or concern Frank Flanagan. The statements by the witness are not hearsay. The witness, the Publisher of the Pennysaver, contacted the Defendant several times after the Flood to demand that the Named Insured's telephone system be replaced because it was damaged by the Flood. In this section, the witness recounts his reasons for requesting that Hartford replace the telephone system. According to the witness, his conversations with Jim McQuillan of Shamrock Cleaning and Restoration, and Harry Beltrani (Defendant's outside claims adjuster) was a factor that prompted his request that the telephone system be replaced. Any reference by the witness to statements by these third parties is (1) not offered to prove the truth of the matter asserted; and/or (2) is offered to show the witness' then existing mental and emotional condition, that is, the effect of the statements of these third parties on the witness. Fed.R.Evid. (803)(3). CONCLUSION

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For the reasons states above, Plaintiff requests that the Court deny Defendant's objections to Plaintiff's designations of deposition testimony for use at trial. RESPECTFULLY SUBMITTED this 5th day of August, 2005. GREENBERG TRAURIG, LLP By: /s/ Tajudeen O. Oladiran John R. Clemency Tajudeen O. Oladiran Attorneys for Plaintiff

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ORIGINAL of the foregoing filed this 5th day of August, 2005. A COPY of the foregoing forwarded via e-mail ([email protected]) this 5th day of August, 2005 to: Eric A. Mark, Esq. THE MARK LAW FIRM 14210 West Piccadilly Goodyear, Arizona 85338 (623) 210-4600 office (623) 547-0105 fax Attorneys for Defendant Insurance Company Casualty Company /s/ Susan Vasquez

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