United States District Court, N.D. Georgia, Atlanta Division
For The Charter Oak Fire Insurance Company, Plaintiff, Counter Defendant, Counter Claimant: Harold Michael Bagley, LEAD ATTORNEY, Drew Eckl & Farnham, Atlanta, GA; Joseph Benson Ward, Karen Kirkpatrick Karabinos, LEAD ATTORNEYS, Drew Eckl & Farnham - ATL, Atlanta, GA.
Victor W. Patterson, Defendant, Pro se, Lawrenceville, GA.
Genevieve Patterson, Defendant, Pro se, Lawrenceville, GA.
For Emergency Water & Fire Restorations, Inc., Defendant, Counter Claimant, Counter Defendant: Edgar S. Mangiafico, Jr., Ragsdale, Beals, Seigler, Patterson & Gray, LLP -D.GA, Dawsonville, GA.
Middagh & Lane, PLLC, Movant, Pro se, Atlanta, ga.
For Middagh & Lane, PLLC, Attorney Benjamin Downey Chastain, Movants: Benjamin Downey Chastain, Middagh & Lane, PLLC, Atlanta, GA.
Victor W. Patterson, Counter Claimant, Pro se, Lawrenceville, GA.
Attorney Benjamin Downey Chastain, Movant, Pro se, Atlanta, GA.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE.
This matter is before the Court on: 1) Emergency Water & Fire Restorations, Inc.'s (" EWF" ) Motion to Enforce Settlement  (" Settlement Motion" ); 2) The Charter Oak Fire Insurance Company's (" Charter Oak" ) Motion for Summary Judgment ; 3) Charter Oak's Motion to Strike Defendants' Expert  (" Expert Motion" ); 4) Charter Oak's Motion to Strike Affidavits of Larry Holcomb and Walter Miller  (" Charter Oak Affidavit Motion" ); and 5) Genevieve Patterson's and Victor W. Patterson's (the " Pattersons" ) Motion to Strike Affidavit of Emily Watson and Sheriff's Service Notice from Four Seasons on Lanier Homeowners Association, Inc.  (" Pattersons Affidavit Motion" ).
Charter Oak issued an insurance policy to the Pattersons, Policy No. 977068522 633 1 (the " Policy" ), effective September 30, 2010 to September 30, 2011. (Charter Oak Statement of Material Facts [96-2] (" SOMF" ) ¶ 1). The Policy provided insurance coverage for the property located at 6419 South Creek Court, Flowery Branch, Georgia 30542 (the " Property" ). (Id.). The Pattersons began residing in the Property on or after October 2004. (SOMF ¶ 2; Pattersons' Responses to SOMF  ¶ 2). In October 2008, Defendant Victor Patterson purchased property located at 2382 Old Fountain Road, Lawrenceville, Georgia 30043 (the " Old Fountain Property" ). (SOMF ¶ 12; Responses to SOMF ¶ 12).
On or about April 13, 2011, a fire occurred at the Property (the " Fire" ). (SOMF ¶ 3). The Pattersons submitted an insurance claim for damages to the Property, damages to their possessions, and for reimbursement of additional living expenses they incurred following the Fire. (SOMF ¶ 4). The Pattersons maintain
that they resided at the Property at the time of the Fire with two adult children and two grandchildren. (SOMF ¶ 5; Responses to SOMF ¶ 5).
EWF was hired to make repairs to the Property and to clean the Pattersons' personal property. (SOMF ¶ ¶ 7-9; Responses to SOMF ¶ ¶ 7-9). Charter Oak issued a check in the amount of $51,469.92 made payable to the Pattersons and EWF for the cleaning of the Pattersons' personal possessions. (SOMF ¶ 8; Responses to SOMF ¶ 8). The Pattersons refused to negotiate the check issued by Charter Oak for EWF's services, claiming that EWF failed to properly clean their possessions and damaged some of them. (SOMF ¶ 9; Responses to SOMF ¶ 9).
On November 12, 2012, Charter Oak filed its Complaint  against the Pattersons. Charter Oak alleges that it paid the Pattersons pursuant to the Policy: 1) $93,291.75 for damages to the Property; 2) $51,469.92 for damages to the Pattersons' personal possessions located at the Property; and 3) $71,491.03 for the Pattersons' additional living expenses. (See Complaint  ¶ ¶ 12, 14, 17). Charter Oak seeks a refund of all the payments it made to the Pattersons based upon the Pattersons: 1) not residing at the Property at the time of the Fire; and 2) fraudulently claiming additional living expenses not actually incurred. (Complaint ¶ ¶ 20-31).
On January 31, 2013, the Pattersons filed their Answer, Affirmative Defense and Counterclaim. The Pattersons asserted a breach of contract and bad faith claim against Charter Oak. (Counterclaim ¶ ¶ 43-61). On April 3, 2013, EWF filed an amended answer to add crossclaims for breach of contract, conversion, quantum meruit and unjust enrichment against the Pattersons for their failure to pay EWF for the work it allegedly performed  (" EWF Crossclaim" ). On April 17, 2013, the Pattersons filed their answer to EWF's Crossclaim and their counterclaims against EWF for breach of contract and unjust enrichment for failing to properly clean the Pattersons' personal properly  (" Pattersons Counterclaim" ).
On July 3, 2013, EWF filed its Settlement Motion, asserting that counsel for the Pattersons and counsel for EWF reached a settlement of their respective claims that the Pattersons have refused to execute or honor.
On February 20, 2014, Charter Oak filed its Expert Motion, seeking to prevent Defendant Victor Patterson, a certified public accountant, from testifying as an expert witness. Charter Oak asserts that Defendant Victor Patterson has a financial interest in the outcome of the case and is thus unreliable, and should be excluded as an expert witness.
On February 20, 2014, Charter Oak filed its Motion for Summary Judgment, asserting that the Pattersons are not entitled to retain any payments made pursuant to the Policy. Charter Oak asserts that the Policy: 1) does not provide coverage because the Pattersons were not residing in the Property at the time of the Fire; 2) does not provide coverage because the Pattersons made material misrepresentations to Charter Oak during its investigation of the claim -- specifically: a) where they resided and; b) their claim for additional living expenses incurred as a result of the Fire.
On April 21, 2014, Charter Oak filed its Affidavit Motion, seeking to strike the affidavits of Mr. Larry Holcomb (" Holcomb" ) and Mr. Walter Miller (" Miller" ), which the Pattersons rely upon in their opposition to Charter Oak's Motion for Summary Judgment.
On May 14, 2014, the Pattersons filed their Affidavit Motion, seeking to strike Ms. Emily Watson's (" Watson" ) affidavit and the Sheriff's Service Notice from Four Seasons on Lanier Homeowners Association, Inc. (the " Sheriff's Notice" ).
A. Charter Oak Affidavit Motion and Pattersons Affidavit Motion
Both Charter Oak and the Pattersons seek to strike evidence that the other party relies upon in support of, or in opposition to, Charter Oak's Motion for Summary Judgment. The Court, before considering the Motion for Summary Judgment, must rule on the Charter Oak Affidavit Motion and the Pattersons Affidavit Motion.
Charter Oak seeks to strike the affidavits of Holcomb, a former tenant at the Old Fountain Property who lived there at the time of the Fire, and Miller, a friend of the Pattersons. Charter Oak asserts that the affidavits should be struck on the grounds that Miller was not identified as an individual likely to have discoverable information regarding the claims and defenses in this case, and that Holcomb's
affidavit, executed in November 2013, was not produced prior to the January 20, 2014 discovery deadline. The Pattersons assert that the affidavit of Watson, a woman who lived in the same neighborhood as the Pattersons, and the Sheriff's Notice should be stricken because both were available, but not produced, prior to the January 20, 2014 discovery deadline.
Holcomb and Watson were identified in the parties' initial disclosures as individuals likely to have relevant knowledge of certain aspects of this case. Miller was not identified in the Pattersons' initial disclosures. The Pattersons assert that Miller approached them after the close of discovery and asked if he could assist them, that he had personal knowledge of their residence, and that they could not have disclosed him any earlier. (Response  pp. 2-3). The Pattersons state that Miller is available to be deposed by Charter Oak. (Id. p. 3).
In form, affidavits resemble documents. In substance, however, they are testimony. " Put differently, witnesses testify orally at trial. Their prior [affidavits], if any, evaporate for all practical purposes and are made part of the evidentiary record only via impeachment." Intel Corp. v. VIA Technologies, Inc., 204 F.R.D. 450, 452 (N.D. Cal. 2001). As Holcomb and Watson were properly identified as witnesses, the parties were not required to produce their affidavits in response to discovery requests. The parties, of course, are allowed to use the affidavits in their cross-examinations at trial.
The Pattersons admit that they did not identify Miller prior to the close of discovery, but assert that they only recently learned that he could assist them. Federal Rule of Civil Procedure 37 provides that if " a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). " The burden of establishing that a failure to disclose was ...