Netcare Life v. Rote

Opinion

2 IN THE SUPERIOR COURT OF GUAM 3 NETCARE LIFE and HEALTH )

4 INSURANCE COMPANY, INC., ) CASE NO. CV0789-l0 5 )

Plaintiff, )

6 )

DECISION AND ORDER ON

7 v. ) DEFENDANT'S MOTION TO ) STRIKE

8 CARMELITA ROTE and ROBERT ) 9 KEOGH, personally and the LAW ) OFFICES OF ROBERT L. KEOGH, )

10 )

Defendants. )

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12 INTRODUCTION

13 This matter came before the Honorable Alberto C. Lamorena III on August 14 19, 2013 on Defendant's Motion to Strike. Attorney Joshua Walsh represented 15 Plaintiff Netcare Life and Health Insurance Company, Inc. Attorney Robert Keogh 16 represented the Defendants Carmelita Rote, himself pro se, and the Law Offices of 17 Robert Keogh. Following the hearing the Court took the matter under advisement.

18 Having considered the parties' arguments and the applicable law, this Court now 19 issues its Decision and Order.

20 FACTUAL BACKGROUND

21 On May 6, 2013, Defendants filed their Motion to Strike the filing of a Rule 22 68 Offer of Judgment. On July 9, 2012, Plaintiff filed a Declaration of Joseph C.

23 Razzano, to which the Rule 68 offer was attached as Exhibit 8. It is Defendants' 24 contention that the offer was attached for an impermissible purpose and moves this 25 Court strike the Rule 68 Offer of Judgment and Seal Exhibit 8 of the July 9, 2012 26 Razzano Declaration.

Decision and Order Case No. CV0789-10

On June 3, 2013, Plaintiffs filed their Opposition. Plaintiff argues that the 2 filing was proper under Rule 408 of the Rules of Evidence. For the reasons set forth 3 below, the Court shall grant the Motion to Strike. 4 DISCUSSION 5 Defendants move to strike Exhibit 8 to the July 9, 2012 Razzano Declaration 6 as being impermissibly filed with this Court. Defendants object as Exhibit 8 was

7 served on Plaintiff as a Rule 68 Offer of Judgment.

8 At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to 9 allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then 10 accrued. If within 10 days after the service of the offer, the adverse II party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of 12 service thereof, and thereupon the clerk shall enter judgment. An 13 offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine 14 costs. 15 Guam R. Civ. P. 68 (emphasis added).

16 Plaintiff argues that the filing was permissible under Evidence Rule 408:

17 Evidence of (1) furnishing or offering or promising to furnish, or (2) 18 accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was 19 disputed as to either validity or amount, is not admissible to prove 20 liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not 21 admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of 22 compromise negotiations. This rule also does not require exclusion 23 when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, {negating] a contention 24 of undue delay, or proving an effort to obstruct a criminal 25 investigation or prosecution.

26 Guam R. Evid. 408 (emphasis added). 27 Plaintiff states the reason for Exhibit 8's inclusion in the Exhibit was

28 to refute a contention of undue delay on their part. Defendants maintain it was filed instead to taint the proceedings or cause prejudice.

Decision and Order Case No. CV0789-1 0

This Court does not base its rulings on inadmissible evidence. Such 2 evidence is not properly before the Court and therefore is not considered in 3 making a determination of fact or law. This Court is well-aware of the 4 policies and practices behind an offer such as that which is the subject of this 5 motion. However, the Rule 68 offer need not have been filed with this Court.

6 Without drawing a conclusion as to Plaintiffs intentions in filing it, the Court

7 is unconvinced it was proper under Rule 408 standards. For this reason, the

8 Court shall grant Defendants' motion to strike.

CONCLUSION

9 For the reasons set forth above, the Motion to Strike the Rule 68 Offer, filed 10 as Exhibit 8 to the July 9, 2012 Razzano Declaration, is hereby GRANTED.

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14 It is SO ORDERED this 13th day of Nove 15

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18 C. LAMORENA, III r Court of Guam