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Barnett v. Lincoln National Life Insurance Co.

United States District Court, D. Arizona

August 27, 2014

Neil Barnett, M.D., Plaintiff,
Lincoln National Life Insurance Co., Defendant. Lincoln National Life Insurance Co., Third-Party Plaintiff,
Anthony Michael Rogozinski et al., Third-Party Defendants.


STEPHEN M. McNAMEE, Senior District Judge.

Before the Court is Defendant Lincoln National Life Insurance Company's ("Lincoln") fully briefed Motion for Summary Judgment. (Docs. 46; 50; 55.) For the reasons that follow, the motion is denied.[1]

As a preliminary matter, the separate and controverting statements of fact provided for by Local Rule 56.1 are simply indices to evidence in the record that establish the existence or absence of genuine disputes. See Fed.R.Civ.P. 56(c)(1)(A) advisory committee notes (2010). Toward that end, controverting statements may "summarily" state objections but they may not raise "any argument regarding[] the admissibility of evidence, " which may only "be presented in the objecting party's responsive or reply memorandum." LRCiv 7.2(m)(2). Allowing objections while prohibiting argument promotes the function of controverting statements as an index to admissible evidence while preventing the division of briefs and multiplication of page limits. See Pruett v. Arizona , 606 F.Supp.2d 1065, 1074 (D. Ariz. 2009) (discussing LRCiv 7.2(m) in context of motions to strike).

Even though Plaintiff Neil Barnett ("Barnett") was granted leave to exceed presumptive page limits, he filed a controverting statement of facts that went beyond summarily stating objections and/or disputing Lincoln's factual assertions with conflicting evidence by raising substantive legal arguments (e.g., Doc. 49 ¶ 48). Consequently, the Court struck the offending filing. (Doc. 52.) Undeterred, Lincoln filed a controverting statement that not only responded to each of the objections and legal arguments in Barnett's stricken controverting statement (Doc. 56 at 2-7), but also raised substantive legal arguments of its own regarding the facts set forth in Barnett's separate statement (e.g., id. at 9 ¶ 14). This is the type of circumvention of page limits that Local Rule 7.2(m) was meant to curtail.

It would be inequitable to penalize Barnett and excuse Lincoln for violating the same rule in virtually the same manner. Accordingly, the Court hereby vacates the part of its Order of January 23, 2014, striking Barnett's controverting statement of facts (Doc. 52 at 2:6-7, 12-14) but will not consider any arguments raised outside of either party's legal memoranda. Both parties are reminded that compliance with the Local and Federal Rules of Civil Procedure is paramount. See LRCiv 83.1(f)(1)(A).

As to the parties' objections themselves, a court ruling on summary judgment may not consider evidence that would be inadmissible at trial. See Miller v. Glenn Miller Productions, Inc. , 454 F.3d 975, 987 (9th Cir. 2006); see also Bourjaily v. United States , 483 U.S. 171, 175 (1987) (explaining the traditional threshold for admissibility is "a preponderance"). The commentary to the Federal Rules explains:

a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.

Fed. R. Civ. P. 56(c)(2) advisory committee notes (2010). Like an objection at trial, the objecting party must "state[] the specific ground [therefor], unless it [is] apparent from the context." Fed.R.Evid. 103(a)(1)(B); see Fraser v. Goodale , 342 F.3d 1032, 1036 (9th Cir. 2003) (finding objection raised in reply memorandum was timely, clear, and specific). In the pretrial setting, however, the focus is not "on the admissibility of the evidence's form, " but "on the admissibility of its contents." Fraser , 342 F.3d at 1036.

Barnett mostly raises specific objections ( e.g. "Plaintiff objects... on the basis of hearsay"). (See Doc. 49.) Lincoln's only response to these objections is that they "do not meet the requirements of Rule 56(c)." (Doc. 56 at 2-7.) Lincoln is incorrect-Barnett's objections are timely, clear, and specific. Because Lincoln failed to show its evidence is admissible as presented or would be presented in admissible form at trial, the Court sustains Barnett's objections unless admissibility is readily apparent. See Fraser , 342 F.3d at 1036.

Conversely, Lincoln exclusively raises unspecific objections ("Lincoln National objects..."). (See Doc. 56 at 7-16.) The sole context of these objections is legal argument that the Court will not consider because it was impermissibly included in a controverting statement of facts. (Id.) Consequently, Lincoln's objections are not specific enough for the Court to rule upon, and they are overruled unless inadmissibility is self-evident.


The following facts are not the subject of any genuine dispute. In February 1993, Third-Party Defendant Anthony Rogozinski ("Rogozinski") was a general agent for CHUBB Insurance Company. (Docs. 54 ¶¶ 1-3; 56 at 7 ¶ 2.) Barnett was a practicing orthopedic surgeon who was concerned about whether the disability policy he had at the time would provide coverage if he could no longer perform surgery. (Doc. 47 ¶ 8.) Barnett knew Rogozinski was a CHUBB agent and had purchased other CHUBB instruments from Rogozinski in the past. (Doc. 54 ¶¶ 39, 59.) Rogozinski met with Barnett at his home and, after a conversation that focused mostly on what constituted disability, recommended that a CHUBB policy with an "Own Occupation Rider" and an "Own Occupation Speciality Rider" would give Barnett better and more coverage.[2] (Docs. 47 ¶ 8; 54 ¶¶ 7, 19, 23-24; 59-4 at 10.) Rogozinski only offered CHUBB disability policies. (Docs. 54 ¶ 11; 59-4 at 8-9.)

Barnett's application was approved and when Rogozinski delivered the CHUBB disability policy (the "Policy") to Barnett, the two of them went through the Policy page by page discussing what the Policy terms meant. (Id. ¶ 29.) Pursuant to the "Own Occupation Rider, " which purports to "liberalize[] the policy definition of total disability to create the best definition available today, " the Policy states in relevant part:

Total Disability, or totally disabled means that due to Injuries or Sickness:
a. you are not able to perform the substantial and material duties of your occupation; and
b. you are receiving care by a Physician which is appropriate for the condition causing disability. We will waive this requirement if your physician deems that ...

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