Fernando v. Federal Insurance Co.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ASHAN FERNANDO and MEGAN FERNANDO,

Plaintiffs,

v. CIVIL ACTION NO.

18-10504-MBB

FEDERAL INSURANCE CO., et al.

Defendants.

MEMORANDUM AND ORDER RE:

DEFENDANT/COUNTERCLAIMANT FEDERAL INSURANCE COMPANY’S

MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 51)

March 14, 2022

BOWLER, U.S.M.J.

Pending before this court is a motion for summary judgment

filed by defendant and counterclaimant Federal Insurance Company

(“defendant” or “Federal”). (Docket Entry # 51). Plaintiffs

and defendants-in-counterclaim Ashan Fernando (“Mr. Fernando”)

and Megan Fernando (“Mrs. Fernando”) (collectively,

“plaintiffs”) oppose the motion. (Docket Entry # 62). After

conducting a hearing on the motion (Docket Entry # 51), this

court took the motion under advisement. (Docket Entry # 67).

PROCEDURAL BACKGROUND

Plaintiffs initiated this action against Federal and “Chubb

Group of Insurance Companies d/b/a Chubb Personal Insurance

d/b/a Chubb Masterpiece Insurance” (the “Chubb Group”) on March

16, 2018. (Docket Entry # 1, p. 1). The amended complaint,

filed on July 31, 2019 (the “complaint”), lists as defendants:

The Chubb Corporation, Chubb National Insurance Company, Chubb

Insurance Company of New Jersey (collectively, the “Chubb

Group”), and Federal. (Docket Entry # 28, p. 1). The complaint

alleges three counts: breach of contract; breach of the implied

covenant of good faith and fair dealing; and unfair and

deceptive acts and practices in violation of Massachusetts

General Laws Chapter 93A, Section 11 (“Chapter 93A”) and Chapter

176D (“Chapter 176D”). (Docket Entry # 28, pp. 7-10). On

August 14, 2019, Federal filed an answer to the complaint with

counterclaims, alleging fraud and intentional misrepresentation

against plaintiffs and requesting equitable relief based on

judicial estoppel and a declaratory judgment from this court.1

(Docket Entry # 29, pp. 1, 16-21).

On December 6, 2019, plaintiffs filed a stipulation of

voluntary dismissal without prejudice of the Chubb Group,

leaving Federal as the only remaining named defendant in this

case. (Docket Entry # 39).

STANDARD OF REVIEW

Summary judgment is designed “‘to pierce the boilerplate of

the pleadings and assay the parties’ proof in order to determine

1 Defendant also asserts judicial estoppel as its thirteenth

affirmative defense. (Docket Entry # 54-8, p. 10) (Docket Entry

# 29, p. 9).

whether trial is actually required.’” Tobin v. Federal Express

Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts

Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). It is

appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). It is

inappropriate, in contrast, “if the record is sufficiently open-

ended to permit a rational factfinder to resolve a material

factual dispute in favor of either side.” Pierce v. Cotuit Fire

Dist., 741 F.3d 295, 301 (1st Cir. 2014). “An issue is

‘genuine’ when a rational factfinder could resolve it [in]

either direction,” and a “fact is ‘material’ when its

(non)existence could change a case’s outcome.” Mu v. Omni

Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir. 2018).

In evaluating a motion for summary judgment, “[t]he court

must examine the ‘record in the light most favorable to the

nonmovant’ and must make ‘all reasonable inferences in that

party’s favor.’” Garcia-Garcia v. Costco Wholesale Corp., 878

F.3d 411, 417 (1st Cir. 2017) (quoting Ameen v. Amphenol Printed

Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015)). However,

“[a]t the summary judgment stage, facts must be viewed in the

light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.

372, 380 (2007) (quoting Fed. R. Civ. P. 56(c)). “‘Where the

record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no “genuine issue for

trial.”’” Scott, 550 U.S. at 380 (citation omitted). Moreover,

“[w]hen opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.” Id. (rejecting plaintiff’s account of high-

speed chase because his depiction of a mild and generally safe

pursuit was “blatantly contradicted” by video footage).

“To succeed in showing that there is no genuine dispute of

material fact, the moving party must direct [the court] to

specific evidence in the record that would be admissible at

trial.” Ocasio-Hernandez v. Fortuno-Burset, 777 F.3d 1, 4–5 (1st

Cir. 2015); see also Fed. R. Civ. P. 56 advisory committee notes

(“The burden is on the proponent to show that the material is

admissible as presented or to explain the admissible form that is

anticipated.”). “That is, it must ‘affirmatively produce

evidence that negates an essential element of the non-moving

party’s claim,’ or, using ‘evidentiary materials already on file

. . . demonstrate that the non-moving party will be unable to

carry its burden of persuasion at trial.’” Ocasio-Hernandez, 777

F.3d at 4–5 (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st

Cir. 2000)). “[I]f the summary judgment record satisfactorily

demonstrates that the plaintiff’s case is, and may be expected to

remain, deficient in vital evidentiary support, this may suffice

to show that the movant has met its initial burden.” Carmona,

215 F.3d at 133. Once the moving party has “demonstrate[d] the

absence of any genuine issue of material fact,” “the burden

shifts to the nonmoving party, who must, with respect to each

issue on which [he or] she would bear the burden of proof at

trial, demonstrate that a trier of fact could reasonably resolve

that issue in [his or] her favor.” Borges ex rel. S.M.B.W. v.

Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). A party opposing

summary judgment “may object that the material cited [by the

movant] to support . . . a fact cannot be presented in a form

that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

“A party asserting that a fact cannot be or is genuinely

disputed [may] support the assertion by . . . citing to particular

parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, interrogatory

answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).

“[A]ffidavits and deposition testimony are effective in

[supporting or] opposing summary judgment only when they are given

on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or deponent (as the case may

be) is competent to testify about the matter in question.” Hannon

v. Beard, 645 F.3d 45, 49 (1st Cir. 2011); see also Fed. R. Civ.

P. 56 (“An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.”).

Uncontroverted statements of fact in a L.R. 56.1 statement

of material facts comprise part of the summary judgment record.

See L.R. 56.1; Cochran v. Quest Software, Inc., 328 F.3d 1, 12

(1st Cir. 2003) (admitting a date on summary judgment because

plaintiff failed to contest date in L.R. 56.1 statement);

Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st

Cir. 2003) (citing L.R. 56.1 and admitting undisputed material

facts that plaintiff failed to controvert). Defendant filed a

L.R. 56.1 statement of material facts (Docket Entry # 53), to

which plaintiffs filed a response (Docket Entry # 64).

FACTUAL BACKGROUND2

Viewing the “‘record in the light most favorable to’”

plaintiffs, the facts in this case are as follows. See Garcia-

2 Docket Entries 54-9, 54-10, 54-45, and 54-46 are transcripts

of examination-under-oath testimony. See (Docket Entry ## 54-9,

54-10, 54-45, 54-46). Docket Entries 54-23, 54-24, 54-33, 54-

34, 54-38, 54-39, and 54-48 are transcripts of deposition

testimony. See (54-22, 54-23, 54-24, 54-30, 54-33, 54-34, 54-

38, 54-39, 54-44, and 54-48). This court refers to those

examination-under-oath and deposition testimony using the

transcripts’ marked page numbers, rather than the docket

entries’ page numbers.

Garcia, 878 F.3d at 417 (citation omitted).

I. The Parties and the Federal Policy

Plaintiffs have been married since August 2012 and, as of

March 18, 2016, live in Berkley, Massachusetts with their two

children; Mr. Fernando’s adult sister, Ashini Fernando; and Mr.

Fernando’s parents, Ira and Neville Fernando. (Docket Entry #

54-1, ¶¶ 1-2) (Docket Entry # 54-2, p. 6) (Docket Entry # 54-5,

p. 6) (Docket Entry # 54-12, p. 5) (Docket Entry # 54-15, pp. 4-

5) (Docket Entry # 54-17, p. 17). In 2011, the year of their

engagement, both plaintiffs and Mr. Fernando’s parents filed for

bankruptcy.3 (Docket Entry # 54-2, p. 10) (Docket Entry ## 54-

52, 54-53, 54-54).

From October 28, 2015 through October 28, 2016, plaintiffs

were insured under a homeowner’s insurance policy issued by

Arbella Indemnity Insurance Company, Inc. (“Arbella”). (Docket

Entry # 54-35, p. 2). That policy (the “Arbella policy”)

scheduled an engagement ring and band, collectively insured for

$26,800. (Docket Entry # 54-35, pp. 3-4). Maria Delgado

(“Delgado”) from Arbella was plaintiff’s insurance agent.

3 Plaintiffs object to the admissibility of their bankruptcy

filings, as well as those of Mr. Fernando’s parents. (Docket

Entry # 63, p. 14); see (Docket Entry ## 54-52, 54-53, 54-54)

(bankruptcy filings). As further detailed below in the

Discussion section, this court finds the bankruptcy filings

admissible.

(Docket Entry # 54-2, p. 19) (Docket Entry # 54-3, p. 15)

(Docket Entry # 54-33, p. 193).

From December 11, 2015 through December 11, 2016,

plaintiffs were also insured under an insurance policy issued by

defendant, policy number 14465494-01 (the “Federal policy”),

that provided “coverage against physical loss” if certain

jewelry described therein became “lost, damaged, or destroyed.”

(Docket Entry # 54-4, p. 4). To procure the Federal policy,

plaintiffs submitted to defendant appraisals for the jewelry

scheduled therein (the “appraisals”). (Docket Entry # 54-40);

see (Docket Entry # 54-9, pp. 93-94) (Docket Entry # 54-22, p.

341). The appraisals bear the signature of “David Youshaie” and

appear on two different letterheads, “Paz Jewlery [sic]” and

“Victoria Jewelry,” which are listed under the same address at

43 Temple Street in Boston, Massachusetts. (Docket Entry # 54-

40, pp. 2-25). According to plaintiffs, “Amir ‘David’ Youshaie,

the owner of Victoria Jewelry” (“Amir Youshaie”),” performed the

appraisals.4 (Docket Entry # 63, p. 9).

4 The parties dispute whether Amir Youshaie or “David ‘Shabab’

Youshaie” (“David Youshaie”) conducted the appraisals. (Docket

Entry # 63, p. 9); see (Docket Entry # 52, p. 12) (Docket Entry

# 64, pp. 9, 14). “Plaintiffs agree that there are two

individuals with the name David Youshaie, including one who

plead to criminal charges in 2014” but maintain that “said

‘David’ . . . does not work at Victoria” Jewelry. (Docket Entry

# 64, pp. 13-14, ¶ 126).

When the Federal policy was originally issued, it listed

the following four jewelry items with their appraised values: a

men’s ring ($64,30), a women’s ring ($71,500); a women’s

engagement ring ($26,800); and a Rolex watch ($34,000). (Docket

Entry # 54-4, p. 10). On February 2, 2016, plaintiffs added two

additional jewelry items and their appraised values: a women’s

diamond ring ($159,360) and a white gold tennis bracelet

($113,600). (Docket Entry # 54-5, p. 20) (Docket Entry # 54-8,

pp. 57-58). With these additions, the Federal policy “provided

coverage for itemized jewelry valued at $469,560.” (Docket

Entry # 53, ¶ 86); see (Docket Entry # 54-8, p. 57). Stephanie

Fairley (“Fairley”) was plaintiffs’ insurance agent for the

Federal policy. (Docket Entry # 54-2, p. 20) (Docket Entry #

54-16, p. 16).

Coverage under the Federal policy is subject to several

conditions, two of which are at issue in this case: (1)

“[c]oncealment and [f]raud” and (2) “[d]uties after a loss.”

See (Docket Entry # 54-4, pp. 20, 24). The “[c]oncealment and

[f]raud” clause repudiates coverage “if . . . any covered person

has intentionally concealed or misrepresented any material fact

relating to th[e] [Federal] policy before or after a loss.”

(Docket Entry # 54-4, p. 20). The “[d]uties after a loss”

clause” provides that, following a loss, plaintiffs must: (1)

“immediately notify” defendant and the police of the loss; (2)

“take all reasonable means that are necessary to” prevent

“further loss or damage”; (3) “prepare an inventory of damaged

personal property, describing the property in full” and

attaching “bills, receipts and other documents when available to

support [the] inventory”; (4) show defendant, upon request, any

damaged property insured under the [Federal] policy; and (5)

“submit to [defendant], within 60 days of [defendant’s] request,

[plaintiffs’] signed, sworn proof of loss which documents to the

best of [their] knowledge and belief: the time and cause of

loss; [their] interest and the interest of all other in the

property involved and all liens on the property; other insurance

which may cover the loss; changes in the title or occupancy of

the property during the [Federal] policy term.” (Docket Entry #

54-4, pp. 22-23). The “[d]uties after a loss” clause also

reserves defendant’s “right to examine separately under oath.”

(Docket Entry # 54-4, p. 23).

II. The Reported Theft of Plaintiffs’ Jewelry

On March 18, 2016, plaintiffs left their home between 6:30

and 7:00 p.m. to drop off their two children at the home of Mrs.

Fernando’s sister in Taunton, Massachusetts, before traveling to

Providence, Rhode Island to play paintball. (Docket Entry # 54-

9, pp. 99-100, 103) (Docket Entry # 54-10, pp. 24-26, 28).

Plaintiffs played paintball for approximately 45 to 60 minutes

and then stopped for dinner in Warwick, Rhode Island. (Docket

Entry # 54-9 at pp. 104-06) (Docket Entry # 54-10, pp. 28, 30-

31). After dinner, they picked up one of their sons (and left

the other so that he could remain sleeping) in Taunton and

returned home between 11:30 p.m. and midnight. (Docket Entry #

54-9, pp. 109-11) (Docket Entry # 54-10, pp. 34-35, 39) (Docket

Entry # 54-12, p. 14). Approximately 15 to 30 minutes later,

plaintiffs discovered that one of their bedroom windows had been

shattered and that their bedroom safe, which contained their

jewelry, was missing. (Docket Entry # 54-9, pp. 114-19) (Docket

Entry # 54-10, pp. 39-40, 44). Mr. Fernando called his handyman

and friend, Eustace Ben Leitch (“Leitch”), to tell him about the

break-in and seek his advice as to how to cover the broken

bedroom window. (Docket Entry # 54-2, p. 12) (Docket Entry #

54-3, p. 10) (Docket Entry # 54-9, pp. 51-12) (Docket Entry #

54-16, p. 36) (Docket Entry # 54-17, p. 21). Mr. Fernando also

spoke with Joseph Spencer (“Spencer”), who he knows “from the

gym,” during a call at approximately 12:39 a.m. (Docket Entry #

54-9, pp. 158-159) (Docket Entry # 53-29).

The following afternoon, plaintiffs called the Berkley

Police Department to report the break-in and theft of the safe

(the “burglary”).5 (Docket Entry # 54-9, pp. 175-77) (Docket

5 Plaintiffs did not report the burglary the night prior because

Mr. Fernando “was drunk” and “scared” to contact the police in

his intoxicated state, particularly because he is “a man of

Entry # 54-11). The Berkley Police Department’s incident report

lists seven jewelry items reported stolen from the safe with a

total appraised value of $634,060. (Docket Entry # 54-11, pp.

2-4). Six of the seven jewelry items reported stolen were

scheduled on the Federal policy.6 (Docket Entry # 54-5, p. 19);

see (Docket Entry # 54-4, pp. 1, 10) (Docket Entry # 54-8, p.

57) (Docket Entry # 54-11, pp. 2-4). The seventh item, “a

woman’s tennis bracelet [] appraised at $164,500 . . . was never

scheduled on the Federal [p]olicy.” (Docket Entry # 54-5, p.

20). The incident report indicates that the appraised value “of

the items originated from the appraisals done by Victoria

Jewelry[,] 43 Temple Place[,] Boston[,] M[A,] 02111” in 2015.7

(Docket Entry # 54-11, p. 4); see (Docket Entry # 54-40)

(Victoria Jewelry appraisals).

Mr. Fernando subsequently filed a “statement of claim” with

Arbella to report the burglary and the missing safe. (Docket

Entry # 54-36). In or about May 2016, Arbella contracted Terry

Seger (“Seger”) from TM Seger Claim Services, Inc. to

investigate Mr. Fernando’s claim under the Arbella policy.

color” (Docket Entry # 54-17, p. 20) who has had “bad

experiences with police” (Docket Entry # 54-22, pp. 540-42).

6 Mrs. Fernando’s engagement ring was scheduled on both the

Arbella policy and the Federal policy. (Docket Entry # 54-4,

pp. 2, 10) (Docket Entry # 35, pp. 2, 4).

7 Mr. Fernando provided the Berkley Police Department with

copies of the appraisals. (Docket Entry # 54-9, p. 178).

(Docket Entry # 54-38, pp. 6-7, 12-13) (Docket Entry # 54-39,

pp. 12-13). Steven Fuller (“Fuller”), an investigator from the

special investigations unit (“SIU”) of Arbella, also reviewed

Mr. Fernando’s claim. (Docket Entry # 54-39, pp. 8, 11-12). On

or about August 2, 2016, Arbella denied Mr. Fernando’s claim on

the basis that he had not appeared for an “examination under

oath that was scheduled for [him] on July 8, 2016,” which

Arbella noted was “a material breach of the” Arbella policy.

(Docket Entry # 54-37); see (Docket Entry # 54-39, pp. 14-15).

III. The Claim and Defendant’s Investigation

On March 19, 2016, plaintiffs submitted a “property loss

notice” (“the claim” or “plaintiffs’ claim”) to defendant for

the jewelry they reported stolen in the burglary (the “loss”).8

8 Pursuant to Local Rule 56.1, “[m]aterial facts of record” in a

moving party’s statement of facts are “deemed for purposes of

the motion [for summary judgment] to be admitted by [the]

opposing part[y] unless controverted by the” opposing party’s

statement. L.R. 56.1. Plaintiffs do not dispute that that the

total appraised value of the reported stolen jewelry was

$634,060. See (Docket Entry # 53, p. 7, ¶ 29) (“[A]ppraisals

for the allegedly stolen jewelry items, totaling $634,060, were

attached to the police report.”); (Docket Entry # 53, ¶ 225);

(Docket Entry # 64, p. 3, ¶ 29) (“The Police Report speaks for

itself. Disputed in so much as the Defendant’s characterization

of the items being ‘allegedly stolen.’”). However, plaintiffs

also admit that the sworn statement in proof of loss they

submitted to defendant seeks $636,060 in coverage. (Docket

Entry # 54-56) (plaintiffs’ sworn statement in proof of loss);

(Docket Entry # 64, p. 22, ¶ 225) (plaintiffs’ response to

defendant’s L.R. 56.1 statement of material facts) (“Exhibit 56

speaks for itself.”). For the purposes of defendant’s motion

for summary judgment (Docket Entry # 51) and this memorandum and

(Docket Entry # 54-2, p. 12) (Docket Entry # 54-3, p. 11)

(Docket Entry # 54-5, p. 17) (Docket Entry # 54-14). On or

about March 21, 2016, defendant assigned Jacquelyn Rider

(“Rider”), one of its SIU investigators, to investigate the loss

and plaintiffs’ claim. (Docket Entry # 54-5, p. 4) (Docket

Entry # 54-12, p. 2) (Docket Entry # 54-13) (Docket Entry # 54-

31). Rider subsequently prepared at least two SIU reports

concerning her investigation. (Docket Entry ## 54-12, 54-31).

On March 21, 2016, claim examiner Brittany Mahig

interviewed Mr. Fernando to obtain a “recorded claims

statement.” (Docket Entry # 54-15, p. 2); see (Docket Entry #

54-2, p. 16). When asked about the provenance of the jewelry

reported stolen, Mr. Fernando explained that the jewelry (with

the exception of Mrs. Fernando’s engagement ring) had been gifts

from his parents and that they had likely bought the jewelry in

Ethiopia or Sri Lanka. (Docket Entry # 54-15, pp. 15-16). He

stated that he purchased the engagement ring for Mrs. Fernando

in 2012. (Docket Entry # 54-15, p. 15).

On or about March 22, 2016, Fairley, plaintiffs’ insurance

agent for the Federal policy, contacted defendant to discuss

obtaining coverage for a seventh item, a diamond tennis

bracelet, “valued at $165,000.” (Docket Entry ## 54-18, 54-19).

order, however, the exact amount of coverage plaintiffs seek is

not material.

Fairley explained that she had forgotten to add the bracelet to

the Federal policy when she added additional two additional

items on February 2, 2016. (Docket Entry # 54-18). Kim Aumick

from defendant advised Fairley that defendant “would allow

[coverage] for the bracelet under [the Federal policy’s] newly

acquired articles coverage, which is up to 25% of the total

scheduled value, in this case $117,390.” (Docket Entry # 54-

19). After speaking with plaintiffs, Fairley told defendant

that plaintiffs were “okay” with the limited coverage of the

bracelet. (Docket Entry # 54-18).

Rider conducted recorded interviews of Mr. Fernando on

March 28, 2016 (Docket Entry # 54-16, p. 2) and Mrs. Fernando on

March 30, 2016 (Docket Entry # 54-17, p. 2). Mr. Fernando

stated that he purchased Mrs. Fernando’s engagement ring in New

York City’s “diamond district” and that the other stolen jewelry

had been gifts from his parents and were from Ethiopia or Sri

Lanka. (Docket Entry # 54-16, pp. 43-48) (Docket Entry # 54-33,

p. 231). Mrs. Fernando stated that the stolen jewelry, with the

exception of her engagement ring, had been gifted to plaintiffs

by Mr. Fernando’s parents. (Docket Entry # 54-17, pp. 23, 30-

36). She also stated that Mr. Fernando had bought her

engagement ring in New York (“exactly where” she did not know)

(Docket Entry # 54-17, p. 29) and that she was not sure where

Mr. Fernando’s parents had obtained the other jewelry (Docket

Entry # 54-17, p. 32).

Also on March 30, 2016, defendant inspected and photographed

plaintiffs’ home (Docket Entry # 54-5, p. 17) and Rider spoke

with Sergeant Daniel Mosher (“Sergeant Mosher”) from the Berkley

Police Department “about [] [p]laintiffs’ report of the [l]oss

and the status of the police investigation” (Docket Entry # 53,

p. 7, ¶ 30); see (Docket Entry # 54-5, p. 18); (Docket Entry #

54-12, pp. 16-17).9 According to Rider’s reporting, Sergeant

Mosher found plaintiffs’ claim to be “highly suspect” and

“inflated.” (Docket Entry # 54-12, p. 12); see (Docket Entry #

54-12, p. 2). During her investigation, Rider reviewed the

“jewelry appraisals received from” plaintiffs and noted in her

report that “[t]here are 2 different types of letterhead between

the appraisals received even though they are from the same

vendor” and that the appraisals did not “have ay information as

to purchase info (ie: when purchased, where purchased from or

price when purchased).” (Docket Entry # 54-12, p. 4). Rider

also reviewed plaintiffs’ bankruptcy filings from 2011 and noted

9 Plaintiffs argue that Rider’s investigative reports and

Sergeant’s Mosher statements to Rider and “what [] Rider

surmise[d] [Sergeant] Mosher believed” are inadmissible hearsay.

(Docket Entry # 63, p. 3, n. 4). As further detailed below in

the Discussion section, this court finds the investigative

reports and statements therein purportedly made by Sergeant

Mosher admissible.

that plaintiffs “denied any real property, including jewelry,” in

those filings. (Docket Entry # 54-12, p. 5).

On or about June 6, 2016, plaintiffs submitted a “sworn

statement in proof of loss” (the “proof of loss”) to defendant

in support of the claim. (Docket Entry # 54-55) (Docket Entry #

54-56). The proof of loss contained the following statement:

The said loss did not originate by any act, design or

procurement on the part of your insured, or this affiant;

nothing has been done by or with the privity or consent

of your insured or this affiant, to violate the

conditions of the [Federal] policy, or render it void;

no articles are mentioned herein or in annexed schedules

but such as were destroyed or damaged at the time of

said loss; no property saved has in any manner been

concealed, and no attempt to deceive the said company,

as to the extent of said loss, has in any manner been

made. Any other information that may be required will be

furnished and considered a part of this proof.

(Docket Entry # 54-56).

Defendant conducted examinations under oath of Mr. Fernando

(Docket Entry # 54-9) and Mrs. Fernando (Docket Entry # 54-10)

on May 25, 2016, as well as Mr. Fernando’s father (Docket Entry

# 54-45, p. 1) and mother (Docket Entry # 54-46, p. 1) on July

27, 2016. Mr. Fernando testified, inter alia, that: his father

told him that the stolen jewelry (excluding Mrs. Fernando’s

engagement ring) had been a gift from friends and family during

his father’s trip to Sri Lanka in 2014 (Docket Entry # 54-9, p.

214); his father first gifted him the Rolex watch in a white bag

with a lion emblem (Docket Entry # 54-9, pp. 79-82) and later,

on a separate occasion, gifted him the remainder of the jewelry

“neatly placed” in a black briefcase (Docket Entry # 54-9, pp.

204-209); he bought Mrs. Fernando’s engagement ring in March

2011 in New York City’s “diamond district” (but did not

“remember the name of the shop”) for $24,000 in cash (Docket

Entry # 54-9, pp. 65-68); and he borrowed $2,000 from a friend

and $23,000 from his parents to purchase the engagement ring.

(Docket Entry # 54-9, pp. 69-71).

Mr. Fernando’s father, Neville Fernando, testified that the

six pieces of jewelry he subsequently gifted Mr. Fernando had

been initially gifted to him in a dark brown cloth by relatives,

including Pearlin Fernando, in Sri Lanka in 2014.10 (Docket

Entry # 54-5, pp. 33-35, 37-40, 43). He denied having any

documents “relating in any way to the gift[ing] or purchase of

the jewelry,” including customs forms declaring the jewelry upon

his return to the United States. (Docket Entry # 54-45, pp. 8-

10). He also testified that he gifted all of the jewelry on one

occasion to Mr. Fernando about one or two months before December

4, 2015 and that he told Mr. Fernando the jewelry was a gift

from relatives and friends from Sri Lanka. (Docket Entry # 54-

45, pp. 67-68, 73).

10 At his deposition in October 2019, Neville Fernando testified

that he has since learned that Pearlin Fernando is deceased.

(Docket Entry # 54-94, pp. 93-97).

On September 8, 2016, plaintiffs provided defendant with

contact information for certain relatives in Sri Lanka. (Docket

Entry # 54-28). “Federal retained CoventBridge to locate and

validate the” relatives. (Docket Entry # 54-50).11

IV. Plaintiff’s Formal Demands and

Defendant’s Denial of the Claim

By letter dated April 20, 2016, plaintiffs sent Chubb

Personal Insurance12 a “formal demand for relief pursuant to”

Chapter 93A and Chapter 176D. (Docket Entry # 54-60).

Plaintiffs alleged that Chubb Personal Insurance “ha[d] violated

the provisions of” Chapter 93A and Chapter 176D “in the course

of investigating [] [plaintiffs’] claim by failing to make a

11 Plaintiffs object to the admissibility of CoventBridge’s

findings in its investigative report (Docket Entry # 54-50).

(Docket Entry # 64, pp. 18-19, ¶¶ 176-82, 187). According to

defendant, CoventBridge was unable to locate three of the

relatives and, after conferring with a “local village officer,”

was able to locate an address for the fourth relative who

informed CoventBridge that she had no knowledge of the jewelry

at issue. (Docket Entry # 54-50). However, as further detailed

below, this court finds CoventBridge's report (Docket Entry #

54-50) to be inadmissible and therefore does not consider the

report for the purposes of summary judgment.

12 As noted previously, this action initially involved not only

Federal but also The Chubb Corporation, Chubb National Insurance

Company, and Chubb Insurance Company of New Jersey. (Docket

Entry # 28, p. 1) (Docket Entry # 54-1, p. 2). According to

defendant, The Chubb Corporation is Federal’s parent company,

and Chubb National Insurance Company and Chubb Insurance Company

of New Jersey are Federal’s subsidiary companies. (Docket Entry

# 28, p. 2, ¶¶ 5-8) (Docket Entry # 54-1, p. 3, ¶¶ 5-8). These

three former defendants “operate under the business names of

Chubb Group of Insurance Companies, Chubb Personal Insurance and

Chubb Masterpiece Insurance.” (Docket Entry # 28, p. 2, ¶ 8)

(Docket Entry # 54-1, p. 3, ¶ 8).

timely reasonable offer of settlement despite both liability and

damages being reasonably clear for th[e] claim.” (Docket Entry

# 54-60).

By letter dated January 20, 2017, defendant notified

plaintiffs that it had denied the claim. (Docket Entry # 54-

55). Defendant explained that it determined that plaintiffs,

Neville Fernando, and Ira Fernando (Mr. Fernando’s mother) “made

false statements and concealed and misrepresented material facts

made in support of [the] claim” to defendant’s investigator, “in

the initial loss notice,” “during [plaintiffs’] examinations

under oath[,] and during the claim investigation.” (Docket

Entry # 54-55). As such, defendant concluded that plaintiffs

had violated the “[c]oncealment or fraud” and “[d]uties after a

loss” provisions of the Federal policy. (Docket Entry # 54-55).

Defendant denied plaintiffs’ claim on this basis and also

because plaintiffs were “judicially estopped from making a claim

for” Mrs. Fernando’s engagement ring “since it was not disclosed

on [plaintiffs’] bankruptcy petition filed and discharged in

2011.” (Docket Entry # 54-55) (capitalization altered); see

(Docket Entry # 54-52) (Mr. Fernando’s January 31, 2011

bankruptcy filing). On or about February 10, 2017, in response

to a letter from plaintiffs dated February 1, 2017, defendant

set forth the specific findings from its investigation

supporting its denial of the claim. (Docket Entry # 54-57).

On or about September 1, 2017, plaintiffs sent defendant a

second formal demand for relief pursuant to Chapter 93A and

Chapter 176D. (Docket Entry # 54-59). They disputed

defendant’s denial of the claim, explaining that plaintiffs had

proven “ownership of the [i]nsured [j]ewelry, procurement of

appraisals, procurement of the [Federal] [p]olicy and theft of

the [i]nsured [j]ewelry.” (Docket Entry # 54-59, p. 3).

V. Depositions and Affidavits

Defendant has deposed several individuals in this matter:

Mr. Fernando on September 13, 2019 (Docket Entry # 54-33, pp. 2-

4) and September 20, 2019 (Docket Entry # 54-22, pp. 274-76);

Mr. Fernando’s father, Neville Fernando, on October 19, 2019

(Docket Entry # 54-48, pp. 2-4); Delgado (plaintiffs’ insurance

agent with Arbella) on November 21, 2019 (Docket Entry # 54-34,

pp. 2-4); Fuller (Arbella’s SIU investigator) on November 21,

2019 (Docket Entry # 54-39, pp. 2-5); Seger (Arbella’s

contracted investigator) on December 11, 2019 (Docket Entry #

54-38, pp. 2-4); Mrs. Fernando on December 13, 2019 (Docket

Entry # 54-23, p. 1); Amy Chaves, Mrs. Fernando’s sister, on

February 4, 2020 (Docket Entry # 54-24, p. 1); Leitch (Mr.

Fernando’s handyman and friend) on February 4, 2020 (Docket

Entry # 54-30, p. 1); and Amir Youshaie (the jewelry appraiser,

according to plaintiffs) on February 19, 2020 (Docket Entry #

54-44, pp. 2-4).

On or about February 25, 2020, Spencer submitted an

affidavit admitting that he recalled speaking with Mr. Fernando

over the phone “on occasion” in March 2016 but denying any

knowledge of the burglary or “knowledge from any source

regarding [Mr.] Fernando’s ownership of any jewelry ever gifted

to him by his father, Neville Fernando.” (Docket Entry # 54-32,

pp. 2, 3-4). Upon review of Mr. Fernando’s phone records, he

did “not recall the substance, general or specific, of [the]

phone call” he had with Mr. Fernando on March 19, 2016. (Docket

Entry # 54-32, p. 2).

DISCUSSION

Defendant moves for summary judgment pursuant to Fed. R.

Civ. P. 56 and Local Rule 56.1, seeking the dismissal of the

complaint as well as “entry of judgment in its favor on its

counterclaims.” (Docket Entry # 52, p. 1). Defendant “seeks

summary judgment on the grounds that [its] investigation of []

[p]laintiffs’ claimed loss was warranted, reasonable and

conducted in good faith, and [its] denial of the claim was based

on the results of that investigation and the terms of [the

Federal] policy.” (Docket Entry # 52, pp. 1-2). More

specifically, defendant argues that: (1) because plaintiffs had

violated the Federal policy’s “[c]oncealment of [f]raud” and

“duties after a loss” clauses, defendant was entitled to deny

the claim and therefore did not engage in a breach of contract

(Docket Entry # 52, p. 1);13 (2) defendant did not “breach [] the

implied covenant of good faith and fair dealing” because it

“‘conducted a thorough investigation; adhered to proper SIU

protocols, encouraged and allowed [] [plaintiffs] to provide any

and all evidence in support of their claim; and reached [its]

conclusion to deny the claim only after an exhaustive, fair, and

good faith investigation’” (Docket Entry # 52, p. 36) (citation

omitted); and (3) plaintiffs “cannot prevail on” their Chapter

93A and Chapter 176D claim because they “have not disclosed an

expert to offer an opinion that Federal’s investigation and

denial of the [c]laim was in breach of any duty owed to []

[p]laintiffs” and “rose to the level of violating” Chapter 93A

or Chapter 176D (Docket Entry # 52, pp. 37-38).

Plaintiffs deny that summary judgment is appropriate at this

stage because: (1) numerous issues of material fact remain; (2)

defendant’s statement of material facts uses inadmissible hearsay

evidence and expert opinions; and (3) plaintiffs complied with

their obligations under the Federal policy following the loss.14

13 Under Massachusetts law, the insured (here, plaintiffs) bears

“the initial burden of proving that a loss falls within the

policy’s description of covered risks.” New Fed Mortg. Corp. v.

National Union Fire Ins. Co. of Pittsburgh, PA, 543 F.3d 7, 11

(1st Cir. 2008). “It is the insurer’s burden [here,

defendant’s] to show the applicability of a particular

exclusion.” Id.

14 As further detailed below, this court finds that that there

are genuine issues of material fact precluding summary judgment.

This court does not therefore also evaluate whether summary

(Docket Entry # 63) (Docket Entry # 64, ¶¶ 62, 202, 242). In its

reply to plaintiffs’ opposition, defendant counters that

“[p]laintiffs set forth no substantive or competent evidence

rebutting Federal’s motion [for summary judgment] as is required

to defeat summary judgment,” and instead “litter their

[opposition] and [response to defendant’s statement of facts]

with unfounded and improper evidentiary objections in an attempt

to convince this Court that there are genuine issues of fact

preventing summary judgment, where none exist.” (Docket Entry #

65, p. 4).

I. Whether There Are Genuine Issues of Material Fact

Among the purportedly “genuine issue[s] of material fact”

cited by plaintiffs are the following: “[w]hether or not a

burglary occurred at [] [p]laintiffs’ home, resulting in a

covered [l]oss” (Docket Entry # 63, pp. 2-3); the proper “weight”

attributable to plaintiffs’ procurement of the Federal policy

“through an agency out of state,” “‘despite ‘Chubb’ having local

Massachusetts based agents’” (Docket Entry # 63, p. 8) (citing

Docket Entry # 52, p. 11); “who[] conducted the [a]ppraisals” of

the jewelry (Docket Entry # 63, p. 9); the accuracy and

reliability “of the [a]ppraisals and opinions of [d]efendant’s

[e]xpert, [] DePrisco” (Docket Entry # 63, p. 12); “precisely

judgment is inappropriate on the basis that plaintiffs complied

with the Federal Policy.

how” Mr. Fernando’s father “gave the jewelry to [Mr. Fernando]”

(Docket Entry # 63, p. 13) (emphasis omitted); whether Mrs.

Fernando’s engagement ring “should have been included in the

[Federal] [p]olicy based upon [plaintiffs’] prior bankruptcies

and what [] that mean[s] in terms of the procurement of the

[Federal] [p]olicy” (Docket Entry # 63, p. 14); whether

plaintiffs harbored the requisite intent for “[d]efendant’s

counterclaim of fraud” (Docket Entry # 63, pp. 14-15); and

“[w]hether or not Federal’s denial of the claim was ‘reasonable’”

and its “investigation thereof [] ‘conducted in good faith’”

(Docket Entry # 63, p. 15).15

Rather than attempt to rebut the materiality or genuineness

of these issues, defendant generally denies that there are

genuine issues of material fact (Docket Entry # 65, pp. 1, 4)

and instead points to which facts plaintiffs have admitted

(Docket Entry # 65, p. 20). As the party moving for summary

judgment, defendant bears the burden of “demonstrat[ing] the

15 Plaintiffs also argue that “whether or not [] [Mr. Fernando]

told a non-party [Leitch] about the break-in” is a question of

fact that “must be determined by a jury.” (Docket Entry # 63).

However, in the same paragraph, plaintiffs also argue that

whether or not Mr. Fernando “was required to detail to his

property manager [Leitch] what was stolen from his home the

night of the [l]oss . . . is immaterial and certainly not

notable for purposes of a [s]ummary [j]udgment.” (Docket Entry

# 63, p. 7). This court therefore does not consider that issue

of fact to be material.

absence of any genuine issue of material fact.”16 Borges, 605

F.3d at 5. Defendant has failed to meet its burden.

As to the various “genuine issues of material fact” cited

by plaintiffs, this court begins with the most obvious: whether

or not a burglary actually occurred. See (Docket Entry # 63, pp.

2-3). Plaintiffs, of course, “steadfastly maintain[]” that they

were the victims of a burglary on March 18, 2016. See (Docket

Entry # 63, pp. 2-3); see also (Docket Entry # 28) (Docket Entry

# 54-1). Defendant, in turn, suggests that “the burglary [] was

staged,” in part because “the alleged burglar conveniently passed

in front of the only security camera capable of recording and

storing video despite its being nowhere near his point of entry

or egress, or the safe he supposedly stole.” (Docket Entry # 52,

p. 24, n. 6). Defendant has also, in other submissions to this

court, purposely cast suspicion on the underlying circumstances

of plaintiffs’ reporting of the burglary and loss. See, e.g.,

(Docket Entry # 53, pp. 7-8, 11-12, ¶¶ 31-33, 46, 52-53) (Docket

Entry # 65, p. 5); see also (Docket Entry # 54-5) (Docket Entry #

54-12) (Docket Entry # 54-13). Accordingly, the parties dispute

whether a burglary in fact took place on March 18, 2016.

This issue of fact is “‘genuine’” because “a rational

16 As noted previously, “[a]n issue is ‘genuine’ when a rational

factfinder could resolve it [in] either direction,” and a “fact

is ‘material’ when its (non)existence could change a case’s

outcome.” Omni Hotels, 882 F.3d at 5.

factfinder could resolve it [in] either direction” and is

“‘material’” because this entire case hinges on whether or not an

actual burglary (and, consequently, loss) occurred that would

trigger defendant’s obligation to pay a claim under the Federal

policy.17 See Omni Hotels, 882 F.3d at 5; see also Garcia-Garcia,

878 F.3d at 417 (1st Cir. 2017) (“The court must examine the

‘record in the light most favorable to the nonmovant [here,

plaintiffs]’ . . . .” (citation omitted). Although defendant has

introduced facts that cast doubt on plaintiffs’ assertion that a

burglary occurred (through, for example, Rider’s investigation

and her conversations with Sergeant Mosher), the facts are not so

overwhelming that “‘the record as a whole could not lead a

rational trier of fact to find for’” plaintiffs. Compare Scott,

550 U.S. at (2007) (citation omitted) (rejecting plaintiff’s

account of high-speed chase because his depiction of a mild and

generally safe pursuit was “blatantly contradicted” by video

footage) with Gaetani v. Hadley, No. CV 14-30057-MGM, 2019 WL

1440405, at *6 (D. Mass. Mar. 29, 2019) (finding that, “much to

17 As to materiality, defendant does not present the argument

that the occurrence (or nonoccurrence) of the burglary is not

“material” in that, whether or not the burglary occurred,

plaintiffs’ failure to provide truthful information after the

reported burglary discharged defendant’s obligation under the

Federal policy to pay the claim. Thus, even if the occurrence

(or nonoccurrence) of the burglary is not material here,

defendant has not made such a showing and has failed to meet its

burden on summary judgment. See Fed. R. Civ. P. 56.

the contrary” of the circumstances in Scott, “there [was] no

video footage or other evidence that clearly undermine[d]

[p]laintiff's version of events,” as a “third-party account

corroborate[d] [p]laintiff's testimony”); see also Punsky v. City

of Portland, No. 2:19-CV-00235-NT, 2021 WL 5344738, at *7 (D. Me.

Nov. 16, 2021) (“[W]here a video recording contradicts facts

asserted by the nonmoving party, rather than take as true

assertions that no reasonable jury could believe, the facts are

to be viewed ‘in the light depicted by the videotape.’”).

Furthermore, it also clear that the parties dispute who

conducted the appraisals. See (Docket Entry # 52, p. 12) (Docket

Entry # 63, p. 9) (Docket Entry # 64, pp. 9, 14). Plaintiffs

claim that Amir Youshaie conducted the appraisals, while

defendant alleges that David Youshaie (a convicted felon)

performed the appraisals. (Docket Entry # 52, p. 12) (Docket

Entry # 63, p. 9) (Docket Entry # 64, pp. 9, 14) (Docket Entry #

65, p. 9). According to plaintiffs, this is a “genuine issue of

material fact” because defendant argues, in part, that “if [David

Youshaie] performed [the appraisals], they were procured [] by

fraud and the policy is invalid.” (Docket Entry # 63, p. 10).

Defendant does not address in its reply (Docket Entry # 65)

whether who conducted the appraisals is a genuine issue of

material fact.

For these reasons, summary judgment is inappropriate because

defendant has failed to show that “there is no genuine dispute as

to any material fact” in this case. Fed. R. Civ. P. 56(a).

II. Admissibility of Hearsay Statements, Bankruptcy

Filings, and Defendant’s Expert Witness Reports

A. Hearsay Statements

Plaintiffs argue that the following facts introduced by

defendant are hearsay:18 Sergeant’s Mosher statements to Rider and

“what [] Rider surmise[d] [Sergeant] Mosher believed” (Docket

Entry # 63, p. 3, n. 4); Delgado’s deposition testimony (Docket

Entry # 54-34, pp. 24-25, 27-31, 67-68) as to her conversations

with Mr. Fernando regarding scheduling certain jewelry on the

Arbella policy and her review of the appraisals (Docket Entry #

53, pp. 18-20, ¶¶ 89, 92, 94-100) (Docket Entry # 63, p. 8, n. 6)

(Docket Entry # 64, p. 18, ¶ 89, ¶ 92); an Arbella investigator’s

reference to “‘the appraiser’s store, Victoria Jewelry, as a ‘den

of thieves’ based on his knowledge of fraudulent claims coming

from the store in the past” (Docket Entry # 53, p. 22, ¶ 115);

see (Docket Entry # 54-38, pp. 60-61) (Docket Entry # 63, pp. 8-

9) (Docket Entry # 64, p. 12, ¶ 115); the examination-under-oath

and deposition testimonies of Mr. Fernando’s parents as to how

Mr. Fernando’s father obtained the jewelry and subsequently

18 Although this court has determined that summary judgment is

inappropriate because of the existence of genuine issues of

material fact, it will also discuss some of plaintiffs’ hearsay

objections, as this court reviewed such purportedly hearsay

statements to determine whether issues of material fact existed.

gifted it to Mr. Fernando and whether they loaned Mr. Fernando

money for the purchase of Mrs. Fernando’s engagement ring (Docket

Entry # 53, pp. 30-31, 32-33, 37, ¶¶ 162-70, 183-86, 188-90, 215)

(Docket Entry # 54-45, pp. 37-38, 43-44, 81-82, 84) (Docket Entry

# 54-46, pp. 18-20, 27, 41-45) (Docket Entry # 54-48, pp. 18-21,

92, 95-97, 174-75) (Docket Entry # 63, p. 13, n. 7) (Docket Entry

# 64, pp. 16-17, 19-20, 22, ¶¶ 163-69, 183, 188-89, 215); and

Rider’s summary in her SIU report (Docket Entry # 54-12, pp. 19-

21) of her conversations with “a male” at “Victoria/Paz Jewelry

at 43 Temple Street, Boston, M[A]” who, she noted, “represented

himself to be ‘David Youshaie’ and confirmed [that] he performed

the appraisals at issue in this case” (Docket Entry # 53, p. 23,

¶¶ 121-22); see (Docket Entry # 63, p. 17) (Docket Entry # 64, p.

13, ¶¶ 122-25).

In their response (Docket Entry # 64) to defendant’s

statement of material facts (Docket Entry # 53), plaintiffs also

dispute the following as inadmissible hearsay: the deposition

testimony of Mrs. Fernando’s sister, Amy Chaves (Docket Entry #

54-24, pp. 32-33), that she and Mrs. Fernando “have a ‘very

close’ relationship and speak a few times a week” (Docket Entry #

53, p. 10, ¶ 45); see (Docket Entry # 64, p. 5, ¶ 46); the

observation of “Federal’s expert, James Whitaker, [that] ‘the

produced “snapshot” of the security video does not allow for the

retrieval of metadata and therefore, it cannot be determined the

actual date or time that the video was recorded’” (Docket Entry #

53, p. 14, ¶ 62) (citing (Docket Entry # 54-27, p. 8)); see

(Docket Entry # 64, p. 6, ¶ 62); Rider’s reporting as to her

unsuccessful attempts “to schedule an interview of [Leitch] to

corroborate information provided by [] [p]laintiffs” and that she

“contacted [] Spencer who denied knowing [Mr. Fernando], denied

any recollection of his March 19, 2016 phone call to [Mr.

Fernando] and refused to speak further with Federal” (Docket

Entry # 53, pp. 16-17, ¶¶ 76, 79); see (Docket Entry # 54-31, pp.

7-8, 10) (Docket Entry # 64, p. 8, ¶¶ 76, 79); Mr. Fernando’s

representations “[d]uring his March 28, 2016 recorded statement .

. . that people, including his parents, were telling him that he

could probably get insurance for the valuable items he had

acquired” (Docket Entry # 53, p. 18, ¶ 87); see (Docket Entry #

54-16, p. 51) (Docket Entry # 64, p. 8, ¶ 87); plaintiffs’

testimony at their “[examinations under oath] and depositions

that . . . Delgado[] recommended that they schedule [Mrs.

Fernando]’s engagement ring on” the Arbella policy (Docket Entry

# 53, p. 18, ¶ 88); see (Docket Entry # 54-9, pp. 58-59) (Docket

Entry # 54-10, p. 87) (Docket Entry # 54-33, pp. 225-26) (Docket

Entry # 64, p. 9, ¶ 88); Arbella’s investigatory findings in two

reports (Docket Entry # 54-37) prepared by Seger (Docket Entry #

53, p. 22, ¶¶ 113-14) (Docket Entry # 64, pp. 11-12, ¶¶ 113-14),

who Arbella had contracted to investigate Mr. Fernando’s claim

under the Arbella policy; Amir Youshaie’s deposition testimony

regarding his interactions with Mr. Fernando about the appraisals

(Docket Entry # 53, p. 26, ¶¶ 136, 138); see (Docket Entry # 54-

44, pp. 64, 79) (Docket Entry # 64, p. 14, ¶¶ 136, 138); Amir

Youshaie’s deposition testimony “that the Gemological Institute

of America issues guidance with regard to diamond pricing”

(Docket Entry # 53, p. 26, ¶ 141); see (Docket Entry # 54-27, pp.

66-67) (Docket Entry # 64, p. 15, ¶ 141); CoventBridge’s

reporting as to its conversations with Damitri De Silva, “the

niece of Ira and Neville” Fernando, and its investigatory

findings (Docket Entry # 53, p. 32, ¶¶ 178-80); see (Docket Entry

# 54-50) (Docket Entry # 64, pp. 17-18, ¶¶ 178-80).

The burden is on defendant “to show that the material” it

cites in support of its motion for summary judgment (Docket

Entry # 51) “is admissible as presented or to explain the

admissible form that is anticipated.” Fed. R. Civ. P. 56

advisory committee notes. “[H]earsay evidence is inadmissible

unless one of the exceptions to the hearsay rule applies.”

Integrated Commc'ns & Techs., Inc. v. Hewlett-Packard Fin.

Servs. Co., 478 F. Supp. 3d 126, 131 (D. Mass. 2020); see also

Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011) (“‘It is black-

letter law that hearsay evidence cannot be considered on summary

judgment’ for the truth of the matter asserted.” (citation

omitted)); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.

1990) (“Hearsay evidence, inadmissible at trial, cannot be

considered on a motion for summary judgment.”). “The most

obvious way that hearsay testimony can be reduced to admissible

form is to have the hearsay declarant testify directly to the

matter at trial.” Jones v. UPS Ground Freight, 683 F.3d 1283,

1293 (11th Cir. 2012); see also Humphreys & Partners Architects,

L.P. v. Lessard Design, Inc., 790 F.3d 532, 538-39 (4th Cir.

2015).

1. Plaintiffs’ Own Statements

Plaintiffs’ own statements made during their recorded

interviews (Docket Entry ## 54-15, 54-16, 54-17), examinations

under oath (Docket Entry ## 54-9, 54-10), and depositions

(Docket Entry ## 54-22, 54-23, 54-33) are admissible on summary

judgment. See Fed. R. Civ. 32(a)(1); Fed. R. Civ. 56; Hannon,

645 F.3d at 49. Both plaintiffs would be present at trial to

testify as to their prior statements. See (Docket Entry # 65,

p. 12). As noted by defendant, “[p]laintiffs’ prior recorded

statements and [examinations under oath] . . . are not hearsay

and are admissible under [Fed. R. Evid.] 801(d)(2).” (Docket

Entry # 65, p. 12); see Fed. R. Evid. 801(d)(2) (providing that

a statement “offered against an opposing party” is not hearsay

when, inter alia, it “was made by the party in an individual or

representative capacity”).

2. Rider’s SIU Reports and Claim Note

Defendant argues that “[]Rider’s SIU Report No. 1” (Docket

Entry # 54-12), which “memorializes her investigative actions,”

is admissible under Fed. R. Evid. 803(6) (“Rule 803(6)”) as a

record of regularly conducted activity. (Docket Entry # 65, pp.

6-7). Under Rule 803(6), “[a] record of an act, event,

condition, opinion, or diagnosis” is admissible as an exception

to the hearsay rule if:

(A) the record was made at or near the time by--or from

information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly

conducted activity of a business, organization,

occupation, or calling . . .;

(C) making the record was a regular practice of that

activity;

(D) all these conditions are shown by the testimony of

the custodian or another qualified witness, or by a

certification that complies with [Federal] Rule [of

Evidence] 902(11) or (12) or with a statute permitting

certification; and

(E) the opponent does not show that the source of

information or the method or circumstances of

preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6). According to defendant, SIU Report No. 1

is “[c]onsistent with the requirements of [Rule] 803(6)” because

it was “made at or near the time of its creation – or from

information transmitted by – someone with knowledge of the

content.” (Docket Entry # 65, p. 7). More specifically, SIU

Report No. 1: (1) “is dated April 22, 2016” and Rider’s

“investigative actions” detailed therein were “from March 24,

2016 through April 20, 2016”; and (2) was authored by Rider and

“contains a memorialization of [] Rider’s own conduct, and her

own investigative efforts, and is thereby made by someone with

knowledge.” (Docket Entry # 65, p. 7). Defendant also notes

that Rider “would testify that she was the special investigator

for Federal charged with investigating [] [p]laintiffs’ claim”

and that “she authored SIU Report No. 1 in the regular course of

Federal’s business (in the course of investigating a claim for

insurance coverage) and that SIU Report No. 1 was prepared to

memorialize her investigative efforts as required by Federal’s

practices and consistent with Federal’s ordinary course of

business.” (Docket Entry # 65, p. 7).

However, SIU Report No. 1 (Docket Entry # 54-12) also

memorializes her conversations with Sergeant Mosher, Leitch,

Spencer, and David Youshaie, which poses a “hearsay within

hearsay” issue. See EMK, Inc. v. Fed. Pac. Elec. Co., 677 F.

Supp. 2d 334, 337 (D. Me. 2010) (5 Joseph M. McLaughlin, Jack B.

Weinstein, Margaret A. Berger, Weinstein's Federal Evidence §

803.10[4][a] (2d ed. 2009) (Weinstein)) (“Statements by third

persons that are recorded in an investigative report are hearsay

within hearsay.”). Accordingly, statements purportedly made by

Sergeant Mosher, Leitch, Spencer, and David Youshaie and

included in SIU Report No. 1 “are inadmissible unless they

qualify for their own exclusion or exception from the hearsay

rule, e.g., as party admissions or as qualifying under some

other hearsay exception.” See id.; see also Fed. R. Evid. 805

(“Hearsay within hearsay is not excluded by the rule against

hearsay if each part of the combined statements conforms with an

exception to the rule.”). To that end, defendant maintains that

Sergeant Mosher, Leitch, and Spencer “would be called by Federal

to testify at trial.” (Docket Entry # 65, pp. 8-9); see Jones,

683 F.3d at 1293 (“The most obvious way that hearsay testimony

can be reduced to admissible form is to have the hearsay

declarant testify directly to the matter at trial.”); see also

Humphreys, 790 F.3d at 538-39.

As for David Youshaie’s statements in SIU Report No. 1,

defendant alleges that his statements “concerning his

preparation of the appraisals . . . would be admissible as

statements against interest under” Fed. R. Evid. 804(b)(3).

(Docket Entry # 65, pp. 8-9). In a civil case such as this one,

a “statement against interest” is a statement that “a reasonable

person in the declarant’s position would have made only if the

person believed it to be true because, when made, it was so

contrary to the declarant’s proprietary or pecuniary interest or

had so great a tendency to invalidate the declarant’s claim

against someone else or to expose the declarant to civil or

criminal liability.” Fed. R. Evid. 804(b)(3). Because “David

Youshaie is a convicted felon prohibited from performing jewelry

appraisals by the terms of his probation,” defendant argues that

“his statements to Ms. Rider that he performed the appraisals .

. . , that he took the photographs attached to the appraisal[s]

then subsequently dropped his phone in the toilet losing the

photos . . . , and that he reviewed documentation in preparing

the appraisals . . . , would all result in his admitting to a

violation of his probation” and therefore “amount to statements

against his penal interests.” (Docket Entry # 65, p. 9).

This court agrees that Rider’s investigative findings in

SIU Report No. 1 would be admissible at trial and therefore may

be considered on summary judgment because: SIU Report No. 1 “was

made at or near the time by--or from information transmitted by-

-someone with knowledge” as to its contents (Rider) and in the

course of defendant’s regularly conducted business activity;

defendant represents that it would call Rider, Sergeant Mosher,

Leitch, and Spencer to testify as to their statements in SIU

Report No. 1; statements made by David Youshaie as to his

performance of the appraisals would be admissible as a statement

against interest under Fed. R. Evid. 804(b)(3); and plaintiffs

have not “show[n] that the source of information or the method

or circumstances of preparation indicate a lack of

trustworthiness.” See Fed. R. Evid. 803(6); Ocasio-Hernandez,

777 F.3d at 4–5.

“For the same reasons discussed above as to SIU Report No.

1,” defendant argues that “SIU Report No. 4 [Docket Entry # 54-

31] . . . will be admissible under [Rule] 803(6) as a business

record.” (Docket Entry # 65, p. 8). Defendant represents that

Rider, Leitch, and Spencer “would be called by Federal to

testify at trial” and therefore “the substance of []Rider’s

interactions with these two individuals [as detailed in SIU

Report No. 4] would be admissible at trial in the form of their

live testimony.” (Docket Entry # 65, p. 8). This court finds

SIU Report No. 4 (Docket Entry # 54-31) to be admissible on

summary judgment for the reasons discussed with respect to SIU

Report No. 1.

“For the same reasons discussed [by defendant] as to SIU

Report No. 1” and No. 4, defendant argues that Rider’s “March

30, 2016 file note (Docket Entry # 54-13) will be admissible

under the business record exception to hearsay,” Fed. R. Evid.

803(6). (Docket Entry # 64, pp. 7-8). Rider’s file note

essentially mirrors the conversation with Sergeant Mosher

reported in SIU Report No. 1. See generally (Docket Entry ##

54-12, 54-13). Defendant represents that “[]Rider would

similarly testify that she prepared the claim note based on her

personal knowledge and in the ordinary course of her employment

with Federal.” For the reasons noted above with respect to SIU

Report No. 1 (Docket Entry # 54-12), this court finds Rider’s

March 30, 2016 file note (Docket Entry # 54-21) admissible on

summary judgment.

3. CoventBridge’s Report

Plaintiffs argue that CoventBridge’s reporting (Docket Entry

# 54-50) as to its attempts to contact the relatives of Mr.

Fernando and his parents, its conversations with the niece of Mr.

Fernando’s parents, and its investigatory findings are

inadmissible hearsay. (Docket Entry # 64, pp. 18-19, ¶¶ 178-80);

see (Docket Entry # 53, p. 32, ¶¶ 178-80). Plaintiffs also argue

that CoventBridge’s opinions as to plaintiffs’ claim is “expert

opinion” that “is not a statement of fact” admissible on summary

judgment. (Docket Entry # 64, pp. 18-19, ¶¶ 176, 181-182, 187).

Defendant denies that CoventBridge’s investigative reports

qualify as expert reports and argues that they “are admissible as

business records under [Rule] 803(6).” (Docket Entry # 65, p.

15, n. 7). Defendant, however, does not elaborate as to exactly

how the reports are admissible under Rule 803(6). See generally

(Docket Entry # 65). Additionally, defendant argues that, “[t]o

the extent that that individuals located in Sri Lanka, whose

statements are memorialized in the CoventBridge reports, may not

be available to testify at trial, their statements to

CoventBridge would be admissible as statements of personal or

family history” under Fed. R. Evid. 804(b)(4)(B). (Docket Entry

# 65, p. 15, n. 7). Defendant also does not elaborate as to how

Fed. R. Evid. 804(b)(4)(B) applies here. For these reasons, this

court will not admit the CoventBridge report (Docket Entry # 54-

50) as admissible evidence on summary judgment. See Fed. R. Civ.

P. 56 advisory committee notes (“The burden is on the proponent

to show that the material is admissible as presented or to

explain the admissible form that is anticipated.”).

4. Examination-Under-Oath and Deposition

Testimonies of Mr. Fernando’s Parents

The examination-under-oath and deposition testimonies of Mr.

Fernando’s parents are proper evidence offered in support of

summary judgment. See Fed. R. Civ. P. 56 (providing that a party

support a fact on summary judgment by citing to depositions and

other materials); Hannon, 645 F.3d 45, 49 (1st Cir. 2011).

Defendant represents that “[b]oth Neville and Ira Fernando would

be called at witnesses at trial and would testify as to the

substance of [the] facts [in their examinations under oath and

depositions,] rendering them in an admissible form.” (Docket

Entry # 65, p. 15). To the extent they testify at trial in a

manner inconsistent with their examination-under-oath and

deposition testimonies, their prior deposition statements would

be admissible under Fed. R. Civ. 32(a)(2) and Fed. R. Evid. 613,

and their examination-under-oath statements would be admissible

under Fed. R. Evid. 801(d)(1) and Fed. R. Evid. 613 for

impeachment purposes. See Fed. R. Civ. 32(a)(2) (“Any party may

use a deposition to contradict or impeach the testimony given by

the deponent as a witness, or for any other purpose allowed by

the Federal Rules of Evidence.”); Fed. R. Evid. 613 (“Extrinsic

evidence of a witness’s prior inconsistent statement is

admissible [] if the witness is given an opportunity to explain

or deny the statement and an adverse party is given an

opportunity to examine the witness about it, or if justice so

requires.”); Fed. R. Evid. 801(d)(1) (providing that a statement

is not hearsay when “[t]he declarant testifies and is subject to

cross-examination about a prior statement” and the statement “is

inconsistent with the declarant’s testimony and was given under

penalty of perjury at a trial, hearing, or other proceeding or in

a deposition.”); see also Fed. R. Civ. P. 56; Hannon, 645 F.3d at

49. For these reasons, this court agrees with defendant that the

examination-under-oath and deposition testimonies of Mr.

Fernando’s parents as to the provenance of the jewelry at issue

are admissible on summary judgment. (Docket Entry # 65, pp. 14-

15).

B. Bankruptcy Filings of

Plaintiffs and Mr. Fernando’s Parents

Defendant introduces the 2011 bankruptcy filings of

plaintiffs (Docket Entry ## 54-52, 54-54) and Mr. Fernando’s

parents (Docket Entry # 54-53) as evidence that plaintiffs made

misrepresentations during its investigation. See (Docket Entry

# 52, pp. 18-19). According to defendant, Mr. Fernando’s

bankruptcy filing is significant because, “[i]n his January 2011

bankruptcy filing, [Mr. Fernando] represented that he had

$25.000 in ‘cash on hand’ and $25.000 on a ‘prepaid card used as

a checking account’” but represented to Federal during its

investigation and his deposition that he purchased Mrs.

Fernando’s engagement ring in early 2011 for about $24,000.00 in

cash with a $23,000 loan from his parents and a $2,000 loan from

a friend. (Docket Entry # 52, pp. 18-19); see (Docket Entry #

54-9, p. 68-71) (Docket Entry # 54-16, p. 47) (Docket Entry #

52). Thus, despite being obligated to “disclose any income from

sources, other than employment, received during the two years

preceding the filing of his bankruptcy case” and “to disclose

all unsecured creditors in his bankruptcy filing,” Mr. Fernando

did not disclose his receipt of the $25,000 “to the Bankruptcy

Court either as income or debt.” (Docket Entry # 52, p. 18).

Similarly, “[j]ust after supposedly giving or loaning [Mr.

Fernando] $23,000 in cash” and “[d]espite being required to

disclose all gifts made within one year of filing their

bankruptcy petition, as well as any transfers of property within

two years preceding their filing, and any debts owed to them,”

Mr. Fernando’s parents did not disclose their $23,000 gift or

loan in their bankruptcy filings. (Docket Entry # 52, p. 19);

see (Docket Entry # 54-53). Finally, Mrs. Fernando did not

declare her engagement ring on the schedule of personal property

in her bankruptcy filing, at which point “[Mr. Fernando] had

already given [her] the engagement ring.” (Docket Entry # 52,

p. 19); see (Docket Entry # 54-54).

Plaintiffs object to the admissibility of their prior

bankruptcy filings, as well as those of Mr. Fernando’s parents.

(Docket Entry # 63, p. 14). In support of this argument,

plaintiffs cite to In re Plourde, a bankruptcy decision which

they allege stands for the proposition that “bankruptcy schedules

are not admissible as an admission against the objecting party.”

(Docket Entry # 63, p. 14); see In re Plourde, 397 B.R. 207, 218

(Bankr. D.N.H. 2008), aff'd in part, rev'd in part, 418 B.R. 495

(B.A.P. 1st Cir. 2009). However, as defendant notes, plaintiffs

“mischaracterize the holding in that case, which more accurately

states, ‘[w]hen the objecting party is the trustee, the

bankruptcy schedules are not admissible as an admission against

the trustee, but may be admissible under the residual exception

in [Fed. R. Evid. 807] . . . .’” In re Plourde, 397 B.R. at 221.

As such, In Re Plourde is not applicable here.

Additionally, as defendant also notes, “federal courts may

take judicial notice of proceedings in other courts if those

proceedings have relevance to the matter at hand.” (Docket

Entry # 65, p. 19, n. 8); see also Smith v. Grondolsky, 299 F.

Supp. 3d 287, 290 (D. Mass. 2018), aff'd, No. 18-1316, 2019 WL

10378245 (1st Cir. Sept. 4, 2019) (“[T]his court can and does

take judicial notice of the docket of other courts.”).

Plaintiffs’ bankruptcy statements are also admissible as

opposing-party statements under Fed. R. Evid. 801(d)(2). See

Fed. R. Evid. 801(d)(2) (providing that a statement “offered

against an opposing party” is not hearsay when, inter alia, it

“was made by the party in an individual or representative

capacity”). Finally, as indicated in In re Plourde, the

bankruptcy filings of plaintiffs and Mr. Fernando’s parents are

admissible under the “residual exception” of Fed. R. Evid. 807

as a statement with sufficient guarantees of trustworthiness.

See In re Plourde, 397 B.R. at 221; Fed. R. Evid. 807(a)

(providing that a hearsay statement is admissible, “even if . .

. not admissible under a hearsay exception in [Fed. R. Evid.]

803 or 804,” when “supported by sufficient guarantees of

trustworthiness” and “more probative on the point for which it

is offered than any other evidence that the proponent can obtain

through reasonable efforts”). Plaintiffs and Mr. Fernando’s

bankruptcy filings were signed under oath for federal court

proceedings and plaintiffs have not “question[ed] the accuracy”

of the filings. See In re Plourde, 397 B.R. at 227. As to the

probative value of the filings, defendant maintains that “there

is no other more probative evidence demonstrating []

[p]laintiffs’ misrepresentations regarding their ownership of

the engagement ring and the funds used to purchase the ring,

than the contradictions between the statement in their

bankruptcy filings and their representations to Federal.”

(Docket Entry # 65, p. 20). For these reasons, the bankruptcy

filings of plaintiffs and Mr. Fernando’s parents are admissible

in this action to support defendant’s argument that plaintiffs

made misrepresentations during its investigation.

C. Defendant’s Expert Witness Reports

Pursuant to Fed. R. Civ. 26(a)(2), defendant has

identified two expert witnesses in this case: James Whitaker

(“Whitaker”) and Donna DePrisco (“DePrisco”). (Docket Entry #

44) (Docket Entry # 54-27, pp. 1-2). According to defendant,

“[]Whitaker has extensive experience with insurance claim

handling and claim investigation procedures and best practices”

and DePrisco is a “jewelry appraiser” with “extensive

experience in the fine jewelry and diamond industry” and a

certification “in diamonds by the Gemological Institute.”

(Docket Entry # 44) (Docket Entry # 54-27, pp. 1-2). Defendant

filed copies of Whitaker and DePrisco’s written reports, which

details their qualifications and findings. See generally

(Docket Entry # 44) (Docket Entry # 54-27).

1. Expert Report of James Whitaker

Federal retained Whitaker to evaluate Federal’s

investigation and denial of plaintiffs’ claim. (Docket Entry #

54-27, pp. 6-7). Whitaker is a “certified fraud examiner,”

“certified protection professional,” and “professional certified

investigator.” (Docket Entry # 54-27, p. 16) (capitalization

altered). Based on his “review of the relevant case file

materials,” he opined that that defendant “conducted a thorough

investigation; adhered to proper SIU protocols, encouraged and

allowed the insureds to provide any and all evidence in support

of their claim; and reached [its] conclusion to deny the claim

only after an exhaustive, fair and good faith investigation.”

(Docket Entry # 54-27, p. 12). He found that defendant “had

ample reason and in fact, an obligation, to continue

investigating th[e] claim based upon the lack of, and at times

conflicting information, received from” plaintiffs and Mr.

Fernando’s father “during their initial statements and later

during their” examinations under oath. (Docket Entry # 54-27,

p. 11). Whitaker based his conclusion on, inter alia, the

following “key points and issues”: plaintiffs’ delayed reporting

of the loss to the police; “[t]he validity and suspicious nature

of the appraisals”; plaintiff’s failure to produce a complete

copy of the security video allegedly showing the burglary; the

conflicting testimony provided by plaintiffs and Mr. Fernando’s

father as to the jewelry’s origins; conflicting statements by

Mr. Fernando and his father regarding the gifting of the

jewelry; Mr. Fernando’s inability to identify where he purchased

Mrs. Fernando’s engagement ring and the lack of credible

evidence concerning the source of the funds used to purchase the

engagement ring. (Docket Entry # 54-27, p. 11).

Plaintiffs argue that: “[w]hether or not Federal’s denial

of the claim was ‘reasonable’, [sic] or the investigation

thereof was ‘conducted in good faith’”, [sic] is a question for

a jury.” (Docket Entry # 63, p. 15). In addition, plaintiffs

contend that defendant’s determination “that [its] activities

were ‘reasonable’ and performed ‘in good faith’ . . . relies

exclusively on the conclusory opinions of Whitaker,” plaintiffs

further argue.” (Docket Entry # 63, p. 15). Because defendant

“provide no basis or foundation to [Whitaker’s] conclusions . .

. in [its] [m]emorandum of [l]aw or [s]tatements of [f]act,”

plaintiffs insist that this court cannot give any weight to his

opinions “[]Whitaker’s opinions can only be properly before a

jury trial to weigh his experience and opinion.” (Docket Entry

# 63, p. 15); see generally (Docket Entry ## 52, 53).

Defendant denies that it “failed to set forth [Whitaker’s]

qualifications” and points to his “extensive qualifications in

the insurance industry and law enforcement [as] set forth in his

expert report,” which defendant “provided as an exhibit to [its]

motion” for summary judgment. (Docket Entry # 65, p. 18); see

(Docket Entry # 54-27, pp. 6-7). Whitaker also detailed in his

report, defendant notes, “the documents that he reviewed and the

facts and rationale that serve as the basis for his

conclusions.” (Docket Entry # 65, p. 18). Defendant also

“reiterate[s] [that], in order to preclude consideration of

evidence submitted for or against summary judgment, the

objecting party [here, plaintiffs] must show that the evidence

‘cannot be presented in a form that would be admissible in

evidence.’” (Docket Entry # 65, p. 15) (quoting Fed. R. Civ. P.

56(c)(2)). To that end, defendant suggests that Whitaker would

“appear at trial and testify to [the] opinions” he set forth in

his report. See (Docket Entry # 65, p. 15) (“Because experts

could appear at trial and testify to opinions, an expert report

submitted for purposes of summary judgment meets the

requirements of [Fed. R. Civ. P.] 56 (c)”). For these reasons,

defendant maintains that “[h]is opinions are anything but

conclusory and satisfy the requirements of Fed. R. Civ. P. 56(c)

and (e) as proper evidence submitted in support of summary

judgment.” (Docket Entry # 65, p. 18).

2. Expert Report of Donna DePrisco

Defendant retained DePrisco to evaluate the seven

“appraisals prepared by Victoria / Paz Jewelers.” (Docket Entry

# 54-27, p. 19). She opined that the appraisals: (1) “are

unprofessional in appearance, lack consistency and lack specific

features commonly found in jewelry appraisals”; and (2) “are

substantively inaccurate” in “substance and pricing,” “with the

exception of the Rolex watch” (because she did “not offer an

opinion” as to its value). (Docket Entry # 54-27, p. 19).

DePrisco’s conclusions are based on her review of: the

appraisals; the deposition testimony of Mr. Fernando, Delgado,

and Amir Youshaie; and “the relevant Rapaport Diamond

Report(s),” which she described as “the international standard

for the pricing of diamonds based on color, cut, clarity and

fluorescence.” (Docket Entry # 54-27, p. 19).

DePrisco shared the following findings in her report: the

appraisals did not price the “diamond rings and bracelets . . .

in a manner consistent with the values set forth in then

applicable Rapaport Diamond Report(s)”; “[t]he verbiage used in

the appraisals describing ‘appraised price’ is also not

consistent with industry standards,” as “[p]rofessional

appraisals much more commonly describe the item’s value as the

‘retail value’, [sic] ‘fair market value’ or ‘replacement

value’”; the appraisals lack “significant information commonly

found on a professional jewelry appraisal, such as “a seal from

the Gemological Institute of America” or, alternatively, “the

appraiser’s qualifications”; and “the appraisals lack

consistency and critical descriptors19 of each of the involved

19 The missing descriptors are: “consistent millimeter measures

and cut grade descriptions”; detailed descriptions of “the

settings and mountings”; and “a determination and confirmation

diamonds.” (Docket Entry # 54-27, p. 21). She also noted that

“the vast majority of the diamonds on the appraisals are

described as having exceptionally high [clarity and color]

ratings,” despite the fact that diamonds of such ratings “make

up less than 3 % of the diamonds in the world.” (Docket Entry #

54-27, p. 21). According to DePrisco, it “is highly unlikely”

to “find [that] many diamonds of this highest possible rating in

the possession of a single owner.” (Docket Entry # 54-27, p.

21).

Also notable to DePrisco was the fact that “Amir Youshaie,

the individual who [according to plaintiffs] performed the

appraisals and assigned the diamonds with these high rare

ratings, could not even define a ‘VVSI’ rating accurately during

his deposition”20 and “did not know the diamond grading scale

during his deposition,” which “is something any appraiser, even

with minimum experience, would be able to recite readily.”

(Docket Entry # 54-27, p. 21). Because of the rare clarity

rating assigned to the diamonds, DePrisco opined that “[e]ven

the most knowledgeable and experienced certified graduate

gemologist would rely on the use of a gemscope to confirm” such

of the karat of the involved mountings and settings.” (Docket

Entry # 54-27, p. 21).

20 According to DePrisco, “VVSI” is a “very rare and near the

highest possible clarity rating[]” for diamonds. (Docket Entry

# 54-27, p. 21).

rating. (Docket Entry # 54-27, p. 21). During Amir Youshaie’s

deposition, however, DePrisco highlighted, he “could not

describe the proper usage of commonly used equipment.” (Docket

Entry # 54-27, p. 21). Finally, she found it “noteworthy” that

Mr. Fernando “testified at his deposition that he dropped off

each of the items to be appraised and returned, often days

later, to retrieve the items” but that “Amir Youshaie testified

that he performed each of the appraisals on the spot with [Mr.

Fernando] waiting.” (Docket Entry # 54-27, p. 22).

Plaintiffs argue that: (1) they are “entitled to a

Daubert/Lanigan hearing as to”21 DePrisco’s qualifications; and

(2) DePrisco’s opinions in her expert witness report (Docket

Entry # 54-27, pp. 19-22) are not facts and therefore not

“worthy of [s]ummary [j]udgment.” (Docket Entry # 63, p. 11).

Plaintiffs point to one of defendant’s statement of facts as

representative of how “her entire testimony . . . must be given

no weight”: “‘[t]he manner in which the appraisals were

conducted, as described by Amir Youshaie, is not consistent with

industry standards.’” (Docket Entry # 63, p. 11) (quoting

(Docket Entry # 53, p. 29, ¶ 157)). “This opinion is not a fact

21 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)

(“Daubert”) (establishing evidentiary standard for admission of

expert testimony); Com. v. Lanigan, 641 N.E.2d 1342 (Mass. 1994)

(adopting Daubert standard as the evidentiary law of

Massachusetts).

worthy of [s]ummary [j]udgment,” plaintiffs argue, because

“[d]efendant does not define industry standards” or present

DePrisco’s “qualifications and foundation for her opinions” in

its “[s]tatements of [f]act or [m]emorandum of [l]aw.” (Docket

Entry # 63, p. 11); see generally (Docket Entry ## 52, 53).

Even if DePrisco’s opinions that the appraisals were

“inaccurate and unreliable” is true, plaintiffs continue, “that

is immaterial.” (Docket Entry # 63, p. 12). Plaintiffs further

argue:

Unless [] [d]efendant could demonstrate as a fact that

[the] [a]ppraisals were intentionally performed

negligently, for the express purpose of the Plaintiffs

committing insurance fraud – which of course, they

cannot – this argument and request for a [c]ourt to find

as such in [d]efendant’s papers has no weight. []

Defendant does not state this as a [f]act, but asks the

[c]ourt to infer that this is a [f]act. This is, of

course, improper for purposes of a [s]ummary [j]udgment.

For these reasons, plaintiffs conclude that “the worthiness of

the [a]ppraisals and opinions of . . . DePrisco[] are genuine

issues of material fact” that cannot be resolved at the summary

judgment stage. (Docket Entry # 63, p. 12).

In response, defendant suggests that DePrisco would testify

a trial as to the opinions in her report. See (Docket Entry #

65, p. 15) (“Because experts could appear at trial and testify to

opinions, an expert report submitted for purposes of summary

judgment meets the requirements of [Fed. R. Civ. P.] 56 (c)”).

Defendant also argues that “[p]laintiffs completely ignore the

three paragraphs of extensive qualifications set forth at the

outset of [] DePrisco’s report” (Docket Entry # 54-27, pp. 19-

20). (Docket Entry # 65, p. 16). Defendant highlights

DePrisco’s experience “[a]s set forth in her report”: she “has

over 40 years’ experience in the jewelry industry”; “is certified

in diamonds by the Gemological Institute of America”; and “has

performed jewelry appraisals in various contexts for over forty

(40) years, including serving as appraiser for the Massachusetts

Attorney General, the State Treasurer, the Federal Bureau of

Investigation, and several police departments.” (Docket Entry #

65, p. 16); see (Docket Entry # 54-27, pp. 19-20).

According to defendant, plaintiffs also ignore DePrisco’s

inclusion of the “the relevant facts in this case on which

[DePrisco] relied in forming her opinions.” (Docket Entry # 65,

p. 17). As noted previously, DePrisco noted in her report that

her conclusions were based on her review of: the appraisals; the

deposition testimony of Mr. Fernando, Delgado, and Amir

Youshaie; and “the relevant Rapaport Diamond Report(s),” which

are “the international standard for the pricing of diamonds

based on color, cut, clarity and fluorescence.” (Docket Entry #

54-27, p. 19).

Because of DePrisco’s qualifications and experience,

defendant denies that plaintiffs are entitled to a Daubert

hearing. (Docket Entry # 65, p. 16). In support of this

argument, defendant points to “the Advisory Committee Notes to

the 2000 Amendments to [Fed. R. Evid.] 702,” which “noted that

‘[the] amendment is not intended to provide an excuse for an

automatic challenge to the testimony of every expert’” and that

“‘[i]n certain fields, experience is the predominant, if not

sole, basis for a great deal of reliable expert testimony.’”

(Docket Entry # 65, p. 16) (citation omitted). According to

defendant, “[]DePrisco’s extensive experience in the jewelry

industry,” as highlighted previously, “speaks for itself.”

(Docket Entry # 65, p. 16).

Based on the foregoing, this court did not consider

defendant’s expert reports for the purposes of this memorandum

and order on defendant’s motion for summary judgment (Docket

Entry # 52). This court has, as previously noted, determined

that material issues of fact exist precluding summary judgment.

Additionally, this court finds that the designated expert

witnesses’ qualifications and admissibility of their reports are

questions best suited for a Daubert hearing and further motion

practice. See Daubert, 509 U.S. at 592-93.

III. Defendant’s Counterclaims

Because this court concludes that summary judgment is not

appropriate for plaintiffs’ claims, so too is summary judgment

inappropriate for defendant’s counterclaims (Docket Entry # 29,

16-21), which rely on the same disputed facts. See Fed. R. Civ.

P. 56; Pierce, 741 F.3d at, 301.

CONCLUSION

For the foregoing reasons, defendant’s motion for summary

judgment (Docket Entry # 51) is DENIED.

__/s/_Marianne B. Bowler_______

MARIANNE B. BOWLER

United States Magistrate Judge