Hollyway Cleaners & Laundry Company Inc v. Central National Insurance Company of Omaha Inc
2:13-cv-07497
| C.D. Cal. | Apr 4, 2018Background
- Plaintiffs (Hollyway and individual owners) sue Central National Insurance Company (CNI) over coverage under a lost/missing insurance policy (the Policy) for the Echo Park property.
- The original Policy is unavailable; CNI employee Jeffery Ogle produced a reconstructed set of documents he says comprise the Policy, including Form PCL 7-81 (which is not on the Declarations page and lacks identifying marks).
- Plaintiffs moved for an evidentiary hearing challenging whether Ogle has personal knowledge to testify that Form PCL 7-81 was part of the Policy; the Court held a hearing on February 14, 2018.
- Ogle testified he was not an underwriter, never worked in underwriting at CNI, had not seen the underwriting file (it was destroyed), and relied on others’ statements to include Form PCL 7-81 in the reconstruction.
- Applying Fed. R. Evid. 602 and California precedent on proving lost policies, the Court found Ogle lacked sufficient personal knowledge to authenticate inclusion of Form PCL 7-81 and excluded the form.
- The Court ordered the parties to meet/confer and lodge the documents they agree comprise the Policy by April 20, 2018, and set the first phase bench trial for May 15, 2018 (with limited rescheduling procedures).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ogle may testify that Form PCL 7-81 was part of the lost Policy | Ogle’s testimony and reconstructed documents establish the form was part of the Policy | Ogle’s reconstruction is reliable and reflects customary CNI practice | Excluded: Ogle lacked personal knowledge under Fed. R. Evid. 602 to authenticate PCL 7-81 |
| Whether contents of a lost policy can be proved by witness testimony | Plaintiffs: secondary evidence / witness testimony may prove lost policy contents | CNI: authenticity and foundation required for such testimony | Court confirms lost policies can be proven by secondary evidence, but witness must have personal knowledge (citing authority) |
| Whether hearsay or secondhand information can substitute for personal knowledge | Plaintiffs relied on Ogle’s acceptance of others’ statements as sufficient | CNI defended use of reconstructed file and institutional practice | Court held hearsay/rumor insufficient; reliance on others did not satisfy Rule 602 |
| Case management after exclusion of PCL 7-81 | Plaintiffs sought resolution to preserve coverage issues | Defendant sought to proceed with reconstructed materials | Court ordered parties to lodge agreed-upon policy documents and set bench trial date May 15, 2018 |
Key Cases Cited
- Dart Indus., Inc. v. Commercial Union Ins. Co., 28 Cal.4th 1059 (2002) (insured may prove contents of a lost policy through secondary evidence; burdens on insured and insurer explained)
- Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995) (witness must have personal knowledge to testify under Fed. R. Evid. 602)
- Rogers v. Prudential Ins. Co., 218 Cal. App. 3d 1132 (1990) (lost policy contents may be proved by unsigned copy or oral evidence)
- Kaczmarek v. Allied Chemical Corp., 836 F.2d 1055 (7th Cir. 1987) (testimony based on hearsay does not establish personal knowledge)