OSA Healthcare, Inc. v. Mount Vernon Fire Insurance

975 F. Supp. 2d 1316, 2013 WL 5348600, 2013 U.S. Dist. LEXIS 135192
CourtDistrict Court, N.D. Georgia
DecidedSeptember 23, 2013
DocketCivil Action No. 1:11-cv-03837-JEC
StatusPublished
Cited by2 cases

This text of 975 F. Supp. 2d 1316 (OSA Healthcare, Inc. v. Mount Vernon Fire Insurance) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
OSA Healthcare, Inc. v. Mount Vernon Fire Insurance, 975 F. Supp. 2d 1316, 2013 WL 5348600, 2013 U.S. Dist. LEXIS 135192 (N.D. Ga. 2013).

Opinion

ORDER & OPINION

JULIE E. CARNES, Chief Judge.

This case is presently before the Court on defendant’s Motion for Summary Judgment (“DMSJ”) [125] and defendant’s Motion to Strike [137]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that the defendant’s Motion for Summary Judgment [125] should be DENIED and defendant’s Motion to Strike [137] should be DENIED as moot.

BACKGROUND

The present action involves an alleged breach of an insurance contract. The following facts are undisputed unless stated otherwise. On June 20, 2011, plaintiffs business was burglarized. (Def.’s Statement of Material Facts [125-1] at ¶ 1.) OSA Healthcare then submitted a sworn statement of proof of loss to defendant-insurer that documented the inventory sto[1318]*1318len. (Id. at ¶2.) Among the inventory plaintiff claimed was lost were 150 units of the Respironics’ product number DS550HS (the “REMstar”).1

Defendant then denied the plaintiff’s claim and plaintiff brought suit in Fulton County. (Not. of Removal [1].) No evidence on record indicates why plaintiffs insurance claim was initially denied.2 Throughout discovery, plaintiffs unresponsiveness and incomplete responses to defendant’s proper discovery requests led to multiple disputes. (Def.’s Mot. to Compel [27]; Def.’s Supp. Mot. to Compel [54]; Def.’s Notice of Non-Compliance with Court Order to Compel [60]; Def.’s Supp. Reply [111].)

After discovery, defendant moved for summary judgment. (DMSJ [125].) In its motion, defendant included the expert report of forensic accountant, Michael Shryock. At the request of the plaintiff, Shryock reviewed the wire transfer confirmations and the invoices produced by plaintiff as well as those produced by third-parties, Respironics and Vaughn Medical, to determine how many of the REMstars plaintiff had in its inventory on the date of the burglary. (Shryock Rep. [125-7] at 2.) Shryock explicitly worked off the assumptions provided to him by the defendant: specifically, that Respironics was OSA’s only supplier of the REMs-tars and that Vaughn Medical was OSA’s first and only customer for this particular product. (Id. at 1.) Based on these assumptions and a review of the invoices produced, Shryock opined that OSA Healthcare actually only had 96 units of the REMstar on hand at the time of the burglary. (Id. at Schedule 1.) Accordingly, defendant claims that plaintiff overstated the amount of REMstars stolen when it reported that 150 units were missing. Defendant further argues that this misrepresentation breaches the insurance contract and voids coverage.3

In its response to the DMSJ, plaintiff submitted an affidavit from OSA’s owner, Donte Williams. Mr. Williams had previously been deposed, both individually and as OSA’s 80(b)(6) representative. In his affidavit, Williams states that “at the time of loss, OSA’s inventory included DS550HS sleep equipment that was purchased from Sleep Care Institute, Inc.” (Aff. of Williams [132-5] at ¶ 13.) Were this so, it would increase the inventory on hand prior to the burglary. Defendant argues that this statement contradicts Wil[1319]*1319liam’s prior deposition testimony in which he stated that OSA had not purchased any of these products from the Sleep Care Institute.4 (Williams Dep. [128] at 211.) Therefore, defendant requests that the Court strike the affidavit as a sham.

DISCUSSION

I. MOTION TO STRIKE

Defendant argues that the affidavit of Donte Williams should be struck as a sham affidavit. (Def.’s Mot. to Strike [137].) The sham affidavit doctrine developed in order to prevent parties from defeating motions at the summary judgment phase by submitting an affidavit that creates an issue of fact, but that also contradicts prior sworn testimony of the affiant. See also Fed. R. Civ. P. 56(h). It is no easy matter, however, to determine when an affidavit crosses the line from being somewhat inconsistent with earlier testimony, which would create a jury issue on credibility, to being so “inherently inconsistent” with “clear” earlier testimony that the affidavit is an obvious attempt to fabricate issues to be tried. Courts cannot allow a party to create a genuine issue of material fact simply by signing an affidavit that is patently false. On the other hand, “[t] o allow every failure of memory or variation in a witness’ testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the ... affiant ... was stating the truth.” Rollins v. TechSoutk, Inc., 833 F.2d 1525, 1530 (11th Cir.1987) (internal quotations). There is no bright line standard for deciding when an affidavit is a sham. Instead, a district court must look to all of the facts and issues of its case to make a proper determination. Van T. Junkins and Assoc., Inc. v. U.S. Indust., Inc., 736 F.2d 656, 658 (11th Cir.1984).

Q (Defendant’s Counsel): All right. Now, were any of the REMstar Auto A-Flex purchased from Sleep Care Institute?
A(Donte Williams): No. REMstars, no. 4

In the present case, as discussed infra, the Court finds that there remains genuine issues of material fact even if the Court disregards the Williams affidavit. Therefore, it would be a poor use of judicial resources to delve into the murky waters of sham affidavit law, when the result will not determine the outcome of defendant’s summary judgment motion. Accordingly, the defendant’s Motion to Strike [137] is DENIED as moot.5

II. DEFENDANT’S SUMMARY JUDGMENT MOTION

Mount Vernon moves for summary judgment based on discrepancies between what the plaintiff claimed was stolen and what the evidence actually indicates could have been stolen. As noted, defendant retained the services of a forensic accountant to review the documents produced and to determine how much inventory the plaintiff could have had on hand on the night of the burglary. After reviewing the invoice and purchase records from plaintiff OSA Healthcare, its supplier, Respironics, and its customer, Vaughn Medical, the expert opined that plaintiff could not have had more than 94 of the REMstar units on hand, even though plaintiff claimed 150 units were stolen on his loss of insurance form. (Shryock Rep. [125-7] at Schedule [1320]*13201.) The expert bases his report on certain assumptions, specifically that OSA Healthcare had a single supplier and a single buyer. (Id. at 1-2.)

Defendant contends that this expert’s conclusion proves that plaintiff made a misrepresentation on his loss of insurance form, as there is no other evidence on the record supporting an alternate conclusion. If made intentionally, a false statement by the insured potentially triggers the fraud clause of the insurance contract.

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Bluebook (online)
975 F. Supp. 2d 1316, 2013 WL 5348600, 2013 U.S. Dist. LEXIS 135192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osa-healthcare-inc-v-mount-vernon-fire-insurance-gand-2013.