Continental Casualty Co. v. Brummel

112 F.R.D. 77, 1986 U.S. Dist. LEXIS 21552
CourtDistrict Court, D. Colorado
DecidedAugust 13, 1986
DocketNo. 85-K-179
StatusPublished
Cited by6 cases

This text of 112 F.R.D. 77 (Continental Casualty Co. v. Brummel) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Casualty Co. v. Brummel, 112 F.R.D. 77, 1986 U.S. Dist. LEXIS 21552 (D. Colo. 1986).

Opinion

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is an action for negligence and reckless disregard for the property rights of others. Whimsy, Inc. was in the business of selling retail shoes. Whimsy was insured for loss by fire by Continental Casualty Company. A fire occurred on January 26, 1983. As a result Continental paid Whimsy for all damage and loss. Pursuant to the insurance contract, Continental was assigned all rights and causes of action of Whimsy. On January 26, 1983, Ronald A. Brummel, d/b/a Ron Anthony, Ltd., defendant, was in possession of the premises adjacent to Whimsy. Brummel is presently a citizen of Texas. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332.

Plaintiff alleges defendant failed to exercise due care and caution in the operation of his business, which caused a fire to occur on defendant’s premises and spread to Whimsy’s premises, thereby damaging and destroying Whimsy’s place of business, the contents of his premises, and interruption of his business. Specifically, plaintiff alleges the fire occurred after defendant discarded an unextinguished cigarette into [79]*79a combustible trash container situated in a room filled with other combustibles. The case is presently set for trial to jury on June 29, 1987.1 Pending before me are plaintiffs motions: 1) to bar the testimony of Cheryl Brummel and Scott Begg; 2) to bar evidence that the fire was caused by electrical failure; 3) to preclude all evidence relating to electrical repairs; 4) and to strike defendant’s responses to request for admissions.

I.

Plaintiff moves to bar the testimony of Cheryl Brummel and Scott Begg because defendant violated discovery and prejudice will result to plaintiff if these witnesses are allowed to testify. Plaintiff asserts defendant violated discovery since defendant did not disclose the names of these testifying witnesses until one month after a court order requiring each party to serve all remaining discovery on the other party. Plaintiff alleges this is in violation of Fed.R.Civ.P. 26(e)(1). Further, if these witnesses are allowed to testify, it is alleged plaintiff will be prejudiced, since there was no opportunity to depose these witnesses.

Defendant responds that the names were not disclosed at the time of the court order because defendant did not know the relevance of the knowledge of the witnesses. Although defendant admits he did not disclose the names of these witnesses, he asserts plaintiff nevertheless had knowledge concerning the information which these witnesses possessed before the date defendant disclosed their names. On September 4, 1985, counsel for defendant took the deposition of fire department Captain Adrian Hise. At his deposition, Captain Hise produced the entire fire department file regarding the fire. A copy of this file was mailed to plaintiff by defendant. In this file was a recorded statement taken by Detective Hays and Captain Hise from Cheryl Brummel. Her statement included a discussion of the electrical work which had been done in defendant’s store during the week before the fire. Plaintiff has had this information since September 4, 1985. The fire department file also contained Scott Begg’s name and address, and identified him as a bystander witness.

Defendant further asserts plaintiff also failed to comply with discovery. The discovery cutoff date was set for January 31, 1986. Defendant had requested a copy of plaintiff’s insurance policy in August, 1985. It was not received until February 25,1986. Also, on February 20, 1986, defendant received supplemental responses to interrogatories. These responses contained a number of witnesses who were not previously disclosed by plaintiff before the closing of discovery.

A trial court has broad discretion as to the control of discovery, and will not be set aside unless there is an abuse of discretion. Shaklee Corp. v. Gunnel, 748 F.2d 548, 550 (10th Cir.1984); Smith v. Ford Motor Co., 626 F.2d 784, 800, cert. denied 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981); Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir.1973). Since there is a duty to provide supplemental responses concerning persons having knowledge of discoverable matters, defendant violated discovery. Fed.R.Civ.P. 26(e). Plaintiff, however, also violated discovery by returning late responses and names of new witnesses after the discovery cutoff date. Since plaintiff and defendant both violated discovery, and plaintiff also had actual knowledge that defendant’s witnesses had discoverable information, the motion to bar the witnesses’ testimony is denied. Any degree of prejudice which might result is [80]*80avoided by reopening discovery for one month. See Smith, 626 F.2d at 795. Thereafter, discovery is closed.

II.

Plaintiff’s second motion is a motion in limine to bar the admission of evidence that the fire was caused by an electrical failure. Plaintiff alleges this evidence should be excluded because defendant has not specifically plead that the fire was caused by an electrical failure and there is no evidence that the cause of the fire was an electrical failure. Defendant responds there was no requirement that he specifically plead the fire began in a certain manner. Further, he asserts there exists evidence that the fire could have been a result of electrical failure.

Fed.R.Civ.P. 8 provides for general notice pleading. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Defendant denied in short and plain terms that he did not start the fire by discarding an unextinguished cigarette in a trash container. Therefore, he complied with the general pleading rules. See Fed.R.Civ.P. Rules 8(c), 9. Consequently, defendant’s answer put plaintiff on sufficient notice that he would deny the fire started in the manner alleged, and that this might include asserting other possibilities by which the fire could have begun. The fault lies not with defendant, but with our outmoded rules of pleading.

Plaintiff’s contention that there is no evidence the fire could have begun by electrical failure is without merit because the testimony of Cheryl Brummel, Richard Knipplemeyer, and fire investigator Larry Stearns establish such is a possibility. Further, evidence which illustrates that the fire could have begun in another manner is relevant. Fed.R.Evid. 401

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Bluebook (online)
112 F.R.D. 77, 1986 U.S. Dist. LEXIS 21552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-casualty-co-v-brummel-cod-1986.