Opposition Brief — Janik v. AMICA Mutual Insurance

- Supreme Court, U.S.

Y FILED

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NO. 00-1739 JUN 21 2001

In The CLERK

SUPREME COURT OF THE UNITED STATES

ERNEST A. JANIK, Jr., Individually, On behalf

of Grant Joseph Janik, on behalf of Tyler Newman Janik;

LEAH EILEEN JANIK, Individually, On behalf of Grant

Joseph Janik, On behalf of Tyler Newman Janik,

Petitioners

V.

AMICA MUTUAL INSURANCE COMPANY; NOBEL

SERVICE CORPORATION; AND IAS CLAIM

SERVICES, INC.

Respondents

On Petition for Writ of Certiorari to the

United State Court of Appeals for the Fifth Circuit

AMICA MUTUAL INSURANCE COMPANY’S

BRIEF IN OPPOSITION

ERIC G. WALRAVEN FANNING, HARPER &

Counsel of Record MARTINSON, P.C.

8117 Preston Road, 3" Floor

Dallas, Texas 75225

(214) 369-1300 (telephone)

(214) 987-9649 (facsimile)

ATTORNEYS FOR RESPONDENT

~ 20 June 2001

QUESTION PRESENTED

1. Whether an abuse of discretion occurred by denying

Plaintiffs’ 60(b)(3) motion and Motion to Reconsider

the denial of its 60(b)(3) motion.

LIST OF PARTIES

The parties to this case are:

Ernest A. Janik, Jr., Individually, On behalf of Grant Joseph

Janik, on behalf of Tyler Newman Janik; Leah Eileen Janik,

Individually, On behalf of Grant Joseph Janik, on behalf of

Tyler Newman Janik;

Amica Mutual Insurance Company;

Nobel Service Corporation; and

IAS Claim Services, Inc.

Pursuant to Rule 29.1, Respondent, Amica Mutual Insurance

Company is a mutual company and is not publicly traded.

Additionally, none of Amica’s subsidiaries are publicly traded.

Amica does not have a parent corporation.

ERIC G. WALRAVEN

TABLE OF CONTENTS

Page

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STATEMENT OF THE CASE 2.4.0 cccsccenveneascce 2

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Whether an abuse of discretion occurred by denying

Plaintiffs’ Motions to set aside the trial court ——-

DEC. 56 ket e ee e 15

A.. NS GT RAWIO on civ vk cb eee shade 16

B. 60(b)(3) Motion and the Motion to

RII cbc cee err eae eae 18

a It was not an abuse of discretion to refuse to set

aside the judgment set aside because Amica

allegedly concealed information that it is

Number 1 in customer satisfaction, because

ill

Plaintiffs presented no evidence that they ever

made a discovery request that encompassed this

information and they presented no evidence of

how this alleged failure to disclose hindered trial

ED x0 0 ds vd Vidindanccinvhasdsseuekia 19

It was not an abuse of discretion to refuse to set

aside the judgment because Plaintiffs were

“confused” about IAS’ identity ............... 20

It was not an abuse of discretion to refuse to set

aside the judgment because of a delay in

producing the recap notes since it is undisputed

that Plaintiffs had the recap notes almost a year

SRS nb. nosessdsicadareteakandehibane 22

It was not an abuse of discretion to refuse to set

aside the judgment because AMICA failed to

produce documents showing that Plaintiffs

wanted their furniture 100% germ free, as there

is no evidence that such documents exist. ....... 22

It was rot an abuse of discretion to-refuse to set

aside the judgment because AMICA failed to

produce documents regarding generally

acceptable claims handling practices or

documents that demonstrated that it routinely

gave the benefit of the doubt to the insured, as

there is no evidence

that such Gocumemts CXist. 0... .cccccccceee 23

iv

6. It was not an abuse of discretion to refuse to set

aside the judgment because a defense expert

testified outside the scope of his report ......... 24

7. It was not an abuse of discretion to deny

Plaintiffs’ motion to reconsider because the

motion to reconsider failed to meet the required

heavy burden to set aside a judgment. .......... 24

8. It was not an abuse of discretion to refuse to set

aside the judgment because the alleged

withholding of the complained of material

deprived Plaintiffs’ of their constitutional right

SPINS. Knicks nbc cs cabal sue ieeas 25

SUE 6h.6b ss cab evds LEN NOh SaeA eee ee 27

TABLE OF AUTHORITIES

FEDERAL CASES Page

Anderson v. Cryovac, Inc., 862 F.2d 910 (1* Cir. 1988) .. 16

Chrysler Corp. v. Superior Dodge, Inc., 83 F.R.D. 179

it By fp ERT EU POR er eee Te Ces errr e emu 17,19

Cutler v. Lewiston Daily Sun, 103 F.R.D. 172 (Me. 1984) 17

Government Financial Servs. One Ltd. Partnership v. Peyton

Place, Inc.,

629.36 67" Cie OS. icc ces 16

Harduvel v. General Dynamics Corp., 801 F. Supp. 597 (M.D.

a 2 aan area Ee arene ees mM Array ers ve ea? 17

MCI Telecommunications Corp. v. Matric Communications

Corp., 171 F.R.D. 7, 9 (D. Ma. 1997), aff'd. 135 F.3d 27 (1*

Re SE aos ea Sei os te et ae a We 17, 22

Ojedo-Toro v. Rivera-Mendez, 853 F.2d 25

See i a kn CA ae 4 ee a ee ee 17,22

Rozier v. Ford Motor Co., 573 F.2d 1332

re i ow oo ea a ea keene 16, 20

USM Corp. v. SPS Technologies, Inc., 694 F.2d 505

Cre NE i eae cd cas bean ewe cee es 17

Washington v. Patlis, 916 F.2d 1036 (5" Cir. 1990) ..... 21

Williams v. Time Warner Operations, Inc., 98 F.3d

Se IE eee cen era eke aku eka eee es 26

vi

FEDERAL RULES

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Vii

NO. 00-1739

In The

SUPREME COURT OF THE UNITED STATES

ERNEST A. JANIK, Jr., Individually, On behalf

of Grant Joseph Janik, on behalf of Tyler Newman Janik;

LEAH EILEEN JANIK, Individually, On behalf of Grant

Joseph Janik, On behalf of Tyler Newman Janik,

Petitioners

v.

AMICA MUTUAL INSURANCE COMPANY; NOBEL

SERVICE CORPORATION; AND 1AS CLAIM

SERVICES, INC.

Respondents

On Petition for Writ of Certiorari to the

United State Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION OF AMICA MUTUAL

INSURANCE COMPANY

TO THE SUPREME COURT OF THE UNITED STATES:

Respondent, AMICA MUTUAL INSURANCE

COMPANY, (Amica), Defendant-Appellee below, respectfully

submits this Brief in Opposition in response to the Petition for

Writ of Certiorari filed by ERNEST A. JANIK, JR., et. al.,

(Janik), Plaintiff-Appellant below.

STATEMENT OF THE CASE

A. Proceedings and Results

This case arises from multiple personal injury and

property damage claims asserted by Plaintiffs against the City

of Dallas, AMICA, IAS, and Nobel based on sewage flooding

on their property (R. Vol. 1, p. 1-53).

The district court granted summary judgment to AMICA

on Plaintiffs' causes of action for DTPA violations, coercion and

duress, breach of fiduciary duty, breach of quasi contract and

unconscionable contract, (R. Vol. 48, P. 559), and to IAS on

Plaintiffs' causes of action for conspiracy and unconscionable

contract.

The remaining claims against AMICA, IAS, and Nobel

were tried to a jury. The jury rejected all of Plaintiffs’ claims

except one. (R. Vol. 53, p. 5900-17). When asked whether

AMICA and/or IAS failed to acknowledge with reasonable

promptness pertinent communications with respect to claims

arising under the policy, the jury answered affirmatively as to

both (R. Vol. 53, p. 5915). Thereafter, the jury apportioned

responsibility for causing Plaintiffs’ damages as 25 percent

attributable to AMICA and 75 percent attributable to IAS (R.

Vol. 53, p. 5919). The jury then awarded Plaintiffs out-of-

pocket damages for costs to clean consumer goods of $2,815.73

(R. Vol. 53, p. 5922).

Because the liability finding bore no relationship to the

damages award, the court entered judgment in favor of AMICA

and IAS, and dismissed all of Plaintiffs’ claims against them

with prejudice (R. Vol. 53, p. 5927, R. Vol. 54, p. 6197, T. Vol.

83, P. 14-15).

Plaintiffs filed a number of post-trial motions including

a request that the court alter the JNOV (R. Vol. 53, p. 5928),

and two requests for a new trial. All of Plaintiffs’ post-trial

motions were denied (R. Vol 53, p. 6673-74, R. Vol 54, p.

2

6197-99). Ten days after the entry of judgment, in an

abundance of caution, AMICA and IAS made a renewed motion

for judgment as a matter of law (R. Vol. 53, p. 404). The court

denied that motion as moot in light of its denial of Plaintiffs’

Motion to Alter the JNOV and Plaintiffs’ Second Motion for

New Trial (P. R. Ex. Tab. L).

On Nov. 19, 1998, Plaintiffs perfected an appeal of the

trial court judgment to the Fifth Circuit. On Aug. 30, 1999,

while the first appeal was pending in the Fifth Circuit, Plaintiffs

filed a 60(b)(3) motion seeking to set aside the trial court

judgment based on fraud. On October 28, 1999, the district

court denied the 60(b)(3) motion. (App. A-12 -A-18) On Nov.

15, 1999, Plaintiffs filed a Motion to Reconsider the Plaintiffs

60(b)(3) motion, which was denied by the district court. (App.

A-19) The Fifth Circuit affirmed the district court’s ruling and

adopted its opinion. (App. A-1 - A-3).

B. Statement of Facts

This lawsuit stems from Plaintiffs’ dissatisfaction with

the handling of a property claim under a renter's policy issued

by AMICA and adjusted by IAS. Plaintiffs filed the claim

following a sewer backup that partially flooded their rented

home. Although AMICA paid the unscheduled personal

property (UPP) damage limits under the policy (Vol 3b, 34),

Plaintiffs had a laundry-list of complaints regarding the

handling of the claim.

The IAS adjusters who worked with the Plaintiffs

described Janik as "difficult." (T. Vol. 6, 173) Janik would not

respond to requests for meetings, would not accept offers of

help and kept issuing contradictory instructions to the adjusters

(T. Vol. 6, 26; T. Vol. 7A, 4-9; T. Vol. 6, 108, 110, 112, 129; T.

Vol. 3b, 3-4; D. Ex. 1-E; D. Ex. 1-F). In fact, Blackmon

Mooring, the company hired by Plaintiffs to move, store and

clean their furniture, described Janik's demands as impossible

‘T. Vol. 6, 30, 33, 77, 207-208). Their observation is supported

3

by the record, which shows that Janik took his furniture to three

different companies for cleaning, and he was not satisfied with

the work of any of three companies (T. Vol. 3b, 45-47).

The claim arose on Sunday, October 31, 1993, when

Plaintiffs returned to their rented home to discover that portions

of it were flooded with dirty water (T. Vol. 1C, 10). Plaintiffs

did not notify AMICA of the claim on Sunday, even though

adjusters would have been available (T. Vol. 6, 198-199).

The dirty water turned out to be city sewage, but

Plaintiffs asserted they did not realize it was sewer water for

several hours (T. Vol. 1 C, 10, 13). In any event, the Plaintiffs

and their oldest son spent the afternoon and evening cleaning up

their home both before and after discovering the water was

sewer water (T. Vol. 1C, 14-15; T. Vol. 2, 197-99, 201).

On Monday morning, Janik called Blackmon Mooring

to come and assist him in cleaning his personal property (T.

Vol.2, 205-206; T. Vol. 4b, 3). Blackmon Mooring came out

that day to assess the damage (T. Vol.2, 205-206).

He also called AMICA on Monday and verbally

notified Amica of the claim. (T. Vol. 2, 206; T. Vol. 6, 199).

AMICA immediately referred the claim to IAS, an independent

claims adjusting service used by AMICA (T. Vol. 6, 199-201).

IAS opened its file the next morning, Tuesday, and the adjuster,

Jene Montague, called Janik on Tuesday morning to set up an

appointment to tour the house (T. Vol. 2, 207; T. Vol. 4b, 6-7;

T. Vol. 6, 5).

Montague arrived at the house at approximately 2:30

p.m. on Tuesday, the day after AMICA received notice of the

claim (T. Vol. 1, 25; T. Vol. 2, 207). A Blackmon Mooring

representative was at the house when Montague arrived (T. Vol.

4b, 8).

According to Montague, Janik told him that Blackmon

Mooring was preparing estimates of what it would cost to clean

and repair the property (T. Vol. 6, 7-8). Montague says that he

told Janik that in his opinion the furniture would have to be

moved out of the house so that the homeowner could make

repairs to the house (T. Vol. 6, 8, 10-11), and he told Janik that

he would call AMICA and see if AMICA would agree to pay

for a pack-out (T. Vol. 6, 9). He denies telling Janik that he

could not move his furniture out of the house (T. Vol. 6, 9).

On Wednesday morning, Blackmon-Mooring removed

furniture that had been standing in water (T. Vol. 1, 55; T. Vol.

2, 209; T. Vol. 3b, 5). Janik says that he was surprised by this

but was told by the Blackmon Mooring representative that IAS

had said it was okay (T. Vol. 1, 55).

Also on Wednesday morning Greg Upah, a former

restaurant worker, turned car salesman, turned environmental

consultant, with no scientific degree (Vol 3b, 5; T. Vol. 5b, 3,

27-28) visited the house at Janik's request (T. Vol. Ic, 60; T.

Vol. 2, 208). After taking air samples, Upah warned Janik that

the house was unsafe causing Janik to become frightened for the

health of his family (T. Vol. Ic, 60).

On Thursday, Janik received testing results from Upah

indicating that the kitchen floor contained asbestos particles (T.

Vol. lc, 68; T. Vol. 3b, 8). According to Janik when he called

Montague on Friday morning to tell him about the asbestos,

Montague told him he had better move out of the house because

Montague did not want a total loss under the policy (T. Vol. 1c;

69; T. Vol. 3b, 8). Janik claims that he perceived this as a threat

to either move out of the house or he would not get the money

coming to him under the policy (T. Vol. Ic, 70-71).

Montague's account differs. He says that he told Janik

on Thursday morning that AMICA had agreed to pay for the

pack-out (T. Vol. 6, 14). During that conversation, Janik told

Montague that Janik had hired Upah, and Montague told Janik

that AMICA would not pay for Upah (T. Vol. 6, 16). It is

undisputed that on Thursday afternoon, Janik sent Montague a

fax thanking him for his excellent service (D. Ex. 1-C).

According to Montague, Janik did not tell him about the

asbestos discovery until Friday, the day after Montague told

Janik that AMICA would pay for a pack- out (T. Vol. 6, 15). At

that time, Janik also told Montague that Blackmon Mooring

would begin removing his property from the house (T. Vol. 6,

15). Montague says that he also told Janik that because of

Janik's concerns regarding the contamination, Blackmon

Mooring would hire a specialist to run tests to determine if the

furniture was repairable or if it would have to be replaced (T.

Vol. 6, 16). There was no evidence in the record that Janik

objected to hiring the chemist. Montague denies threatening

Janik (T. Vol. 6, 17).

On Friday, Janik signed a contract with Blackmon

Mooring backdating the contract to Wednesday, because he

believed that he had to backdate the contract for the insurance

to cover the pack-out (T. Vol. 1C, 70; T. Vol. 2, 210-211; D.

Ex. 1-B). The contract provided that AMICA was to pay

Blackmon Mooring directly (D. Ex. 1-B), but Janik

subsequently rescinded those instructions (T. Vol. 6, 212-213).

Blackmon Mooring spent all day Saturday and Monday

packing out the house (T. Vol. 1C; T. Vol. 3b, 9-19). Janik's

furniture and belongings were all out of the house on Monday,

eight days after the sewer back-up.

On Nov. 9, Janik called Montague and asked for an

advance under the ALE section of the policy and also asked for

a copy of the Blackmon Mooring bid (T. Vol. 6, 20). Montague

promptly responded to this communication by checking the next

day with Blackmon Mooring regarding the status of the

estimate. He was told the estimate was incomplete (T. Vol. 6,

20). On Nov. 12, Montague sent a report to AMICA

recommending that it hire an independent chemist to evaluate

the contamination of Janik's property because of the

disagreement between Blackmon Mooring and Janik regarding

whether the property could be restored (T. Vol. 6, 20-21; D. Ex.

IT 73). AMICA agreed (T. Vol. 6, 75-76, 205-206 ), so on the

15th, Montague directed Blackmon Mooring to hire a chemist

(Vol 6, 23). AMICA was not involved with the selection of the

chemist (T. Vol. 6, 205). At that time, Montague was told by

Blackmon Mooring that some items had been test-cleaned and

would be returned to Janik (T. Vol. 6, 25).

6

On Nov. 15, Blackmon Mooring delivered its estimate

and asked Janik for approval to begin cleaning the property (T.

Vol. 4b, 12) (D. Ex. IT-65). Janik, however, did not give

Blackmon Mooring permission to proceed (T. Vol. 4B, 15) (Ex.

1-D). In fact, Janik never gave Blackmon Mooring permission

to clean the property (T. Vol. 4b, 19).

On Nov. 19th, Janik went to the IAS offices to pick up

the $2,000 advance check that AMICA agreed to pay even

though such an advance was not provided for under the policy

terms (T. Vol. 6, 25). At the office, Janik and Montague

discussed Blackmon Mooring's cleaning estimate and the

additional testing (T. Vol. 6, 25). Janik said he wasn't sure he

wanted the property cleaned (T. Vol. 6, 25).

Montague also told Janik that AMICA needed additional

information regarding the destroyed property listed on the

earlier inventory before the claim could be paid (T. Vol. 6, 25-

26). Montague then introduced Janik to Debbie Allen of IAS

and told him she would be available to assist him in completing

the forms (Vol 1C, 82-82; T. Vol. 6, 26; T. Vol. 7A, 4-5).

Although Allen made repeated efforts to contact Janik regarding

completing the forms, he never responded to the offers of

assistance (T. Vol. 7a, 5-9)(D. Ex. IT 66).

On Nov. 21, Janik sent Montague a fax thanking him for

the advance and saying he would not make any

recommendations until he reviewed the chemist report (T. Vol.

3b, 14; T. Vol. 6, 27) (Ex. D. 1-D). On Nov. 30, Blackmon

Mooring told Montague that it still did not have the chemist

report (T. Vol. 6, 28). Again on Dec. 6, Blackmon Mooring

told Montague that it still did not have a written report from the

chemist, but that the tests showed heavy contamination on the

items that had actually been in the flood water, but only light to

moderate contamination on other items (T. Vol. 6, 28).

On Dec. 13th, Montague again spoke with Blackmon

Mooring who expressed concern about Janik's demands.

According to Blackmon Moor.ng, Janik wanted assurances that

the property would be 100% germ-free (T. Vol. 6, 30).

7

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Blackmon Mooring told Montague that it wanted to test clean

some of the property to see how it worked, but that Janik was

reluctant to proceed (T. Vol. 6, 28-29). Again Blackmon

Mooring told Montague that it only had a verbal report from the

chemist, but promised to try to get a written report as soon as

possible (T. Vol. 6, 28).

On Dec. 14th, a Blackmon Mooring representative met

with Montague to discuss the claim and asked for a meeting

with AMICA and IAS to discuss Janik's demands (T. Vol. 6,

30). Montague says he believed that Blackmon Mooring

wanted the meeting because it was concerned that it would clean

the property, but that Janik would refuse to accept it, leaving

Blackmon Mooring with the bill (T. Vol. 6, 30). Montague says

there was no discussion of Janik attending the meeting one way

or the other (T. Vol. 6, 31, 32).

The other participants in the meeting, David Terry of

IAS and Tom Ferris of AMICA, concurred that Blackmon

Mooring requested the meeting and that they made no effort to

conceal the meeting from Janik (T. Vol. 6, 76-77, 79-80, 206-

207). The IAS log book, however, has a scratch out on the list

of participants (P1. Ex. 442). Janik claimed that scratch out was

his name and indicated he was deliberately excluded from the

meeting (T. Vol. 2, 111-114).

On December 15, Janik sent instructions to IAS

retracting his authorization for direct payment to Blackmon

Mooring and requiring his signed approval before any

Blackmon Mooring invoice could be paid (T. Vol. 2, 212-213;

D. Ex. 18). Janik testified at trial that he became dissatisfied

with Blackmon Mooring after visiting its facility because he

thought it was not taking proper care of his belongings and

because its workers used bad language (T. Vol. Ic, 80).

On Dec. 22, IAS, AMICA and Blackmon Mooring met

to discuss the claim (T. Vol. 6, 32). At that time, Blackmon

Mooring told AMICA and IAS that the chemist could not give

assurances that the items would ever be completely cleaned to

the point of being 100% germfree, which was what the Janiks

8

ee ee ars

wanted (T. Vol. 6, 33, 77, 207-208). Following the meeting,

David Terry of IAS drafted a report outlining three options: 1)

clean everything and if Janik would not accept it, then work it

out with him; 2) test clean a few samples and see how the

samples came out; 3) declare a total loss and tender the limits

(T. Vol. 6, 76; D. Ex. IT 76). After reviewing the report,

AMICA's Tom Ferris said that he decided to pay the limits,

believing it was the only thing that would satisfy Janik (T. Vol.

6, 210).

On Dec. 23, Janik sent a fax to Rick Mandel of

Blackmon Mooring requesting a copy of the chemist report,

among other items (T. Vol. 6, 33; P. Ex. 267-A). He addressed

the fax to Rick Mandel, and copied it to Montague. Montague

testified he did not interpret the fax as asking him for anything,

because it was addressed to Blackmon Mooring (T. Vol. 6, 33-

34), and because he thought Janik already knew the results (T.

Vol. 6, 34).

On Jan. 3rd, Janik sent another fax addressed to both

Blackmon Mooring and Montague asking for a response to the

Dec. 23 fax (T. Vol. 6, 34-35; P. Ex. 268-A). Once again,

because the letter was addressed to Blackmon Mooring,

Montague did not think the letter was requesting anything from

him (T. Vol. 6, 35).

Blackmon Mooring sent the chemist report to Janik on

Jan. 11, but left off Exhibit A to the report (T. Vol. 3b, 15; T.

Vol. 6, 35). On Jan. 12, Janik sent a fax to Montague asking him

for Exhibit A (T. Vol. 6, 35; D. Ex. 268-A). Montague then

faxed a letter to AMICA asking if he could send Exhibit A to

Janik, to which AMICA immediately responded "Absolutely"

(T. Vol. 6, 36-37; Ex. 268-F, 522-E, IT-74). On Jan. 14,

Montague faxed the report to Janik (T. Vol. 6, 38).

AMICA's Tom Ferris testified he assumed all along that

the Janiks had the test results (T. Vol. 6, 211), and he was

surprised in January to learn that they did not (Vol 6, 211).

Ferris further testifed he never told anyone to hide the test

results from the Janiks (T. Vol. 6, 206). Likewise, Montague

9

LS AG es TENN SLED DTN SSM A igs

said he did not realize Janik did not know about the chemist's

testing results because when the meeting with the Blackmon

Mooring representatives took place, the Blackmon Mooring

representative talked about his and Janik's discussions (T. Vol.

6, 29).

On Jan. 14, Montague also told Janik that AMICA was

ready to make a payment decision but that AMICA needed a

final contents and damage listing and ALE documentation (Vol

6, 39; Ex. 268-E). After receiving a Jan. 17 fax from Janik (T.

Vol. 6, 39), Montague called AMICA and asked if all the

personal property was to be considered a total loss (T. Voi. 6,

39-40).

AMICA responded with a fax that it was willing to

consider any items that had not been cleaned a total loss and that

it would consider the cleaned items a total loss as well, if Janik

was not satisfied with the level of cleanliness, but that it needed

itemization (T. Vol. 6, 40; D. Ex. IT 75). On Jan. 20, Montague

left Janik a voice mail saying that AMICA had decided to total

all personal property, but that AMICA needed itemized

documentation and that IAS would be happy to assist him in

completing the documentation (T. Vol. 6, 41-43; D. Ex. IT 69).

A few days later, Montague stopped working on the

claim because he was sent to California to adjust claims arising

from the North Ridge earthquake (T. Vol. 6, 44). Terry then

took over handling the claim for IAS (T. Vol. 6, 80-81).

On Feb. 8, at 7:30 a.m., Janik sent a fax to IAS and

AMICA directing them to pay certain Blackmon Mooring

invoices, but only subject to AMICA resolving Janik's problems

with the Blackmon Mooring invoices (T. Vol. 3b, 17-18; T. Vol.

6, 88; D Ex. 1-E). One of the invoices that Janik directed to be

paid was invoice number 497, dated Dec. 23, 1993, in the

amount of $2,815.73 (D. Ex. 1E; D. Ex. 3B). The same

morning, Janik sent another fax to AMICA asking AMICA to

pay Blackmon Mooring appropriately as soon as possible (T.

Vol. 3b, 18-19; Ex. 1F). Again he asked AMICA for help

resolving his billing dispute with Blackmon Mooring (T. Vol.

10

3b, 19).

Terry responded to these faxes by contacting Blackmon

Mooring in an attempt to resolve the open issues (T. Vol. 6, 87-

88, 90; D. Ex. IT-70; D. Ex. IT 78). On Feb. 9, he made a

report to AMICA discussing the stalemate between Janik and

Blackmon Mooring (7. Vol. 6, 89-91; D. Ex. IT 78).

On Feb. 15, Janik again sent two faxes regarding

payment to Blackmon Mooring. The first was addressed to

David Terry and Valerie DeShotel asking AMICA to pay the

proper amount to Blackmon Mooring (T. Vol. 3b, 20; Ex. D 1-

G). He sent a second fax to David Terry asking that Blackmon

Mooring be paid the proper amounts (T. Vol. 3b, 21; Ex. D 1-

H).

On Feb. 15, Janik and Terry talked on the phone

regarding the problems with Blackmon Mooring and payment

of the claim. Janik recorded the conversation without Terry's

knowledge (T. Vol. 44b, 36-42; T. Vol. 6, 92; D. Ex. IT-70).

Terry told Janik that his efforts to resolve Janik's dispute with

Blackmon Mooring were unsuccessful and that IAS and

AMICA did not know what else they could do to assist Janik

with his dispute, but that if Janik suggested something, they

would be willing to pursue his suggestion (D. Ex. IT 70). Terry

also explained that AMICA could make the draft for the

Blackmon Mooring bill payable to both Janik and Blackmon

Mooring jointly and that would protect Janik's interests and give

him leverage to settle his dispute with Blackmon Mooring since

Blackmon Mooring could not cash the check without Janik's

signature (T. Vol. 4b, 36-42; T. Vol. 6, 92-93). Terry told Janik

that AMICA did not care how the checks were cut and was

willing to comply with Janik's wishes (T. Vol. 4b, 36-42; T.

Vol. 6, 95-96). Janik directed Terry to cut the check jointly (T.

Vol. 4b, 41; T. Vol. 5a, 4; D. Ex. IT 70). He also told Terry that

he was worried about out of pocket charges from Blackmon

Mooring, and Terry told him that would not happen, but if it did

to call Terry and he would handle it (D. Ex. IT-70, p 3).

Terry says that when the conversation concluded, he

11

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o LEP MALAI APRS POOLE VELG LEP PEO NLS LILLE DP. GOLA GL even

thought that Janik agreed the proper way to proceed was to issue

two checks (T. Vol. 6, 93). Janik admitted that at the time he

was talking to Terry, he agreed with Terry's suggestion to have

a joint draft, but that subsequently he changed his mind (T.

Vol.4b, 41; T. Vol. 5a, 4).

On Feb. 19, Janik sent another fax asking that AMICA

issue a check in the proper amount to Blackmon Mooring (T.

Vol. 3b, 22-23; Ex. D. 1-1). Terry then picked up the two drafts

from AMICA and left a message for Janik telling him the drafts

were ready (T. Vol. 6, 93-94). On Feb. 21, he also advised

Janik by letter that two drafts were ready (T. Vol. 3b, 24-25; D.

Ex. J). Janik responded by sending Terry a fax saying that Janik

did not agree with the way the payment was being made and

that he resented the telephone tactics (T. Vol. 6, 94; D. Ex. 1H).

He then reversed his prior directions to Terry and said he

wanted Blackmon Mooring paid directly (T. Vol. 6, 101).

This was the third time Janik changed his instructions

regarding how to pay Blackmon Mooring. His original contract

with Blackmon Mooring authorized direct payment (D. Ex. 1-

B), then he retracted the agreement for direct payment (T. Vol.

3b, 3-4; Ex. 18). He directed IAS to pay certain invoices, then

rescinded that order the same day (D. Ex. 1E, D Ex. 1F).

Finally, Janik specifically directed IAS to cut a joint draft for

the payment of Blackmon Mooring and then when his wishes

were followed, he reversed himself again (D. Ex. IT 70, D. Ex.

IH).

On Feb. 21, Terry sent a letter to Janik saying he did not

understand the fax since he thought Janik was in agreement

regarding issuance of the joint draft for $15,889.65 and that he

contacted Blackmon Mooring and they had the property ready

for pick-up (Vol. 6, 98). He also told Janik that AMICA was

ready to pay the balance. The letter also asked Janik to let Terry

know how Janik wanted to proceed on the Blackmon Mooring

draft (T. Vol. 6, 99).

On Feb. 21, 1999, Terry made another report to AMICA

in which he discussed Janik's about face on issuing the joint

12

draft for payment of Blackmon Mooring's invoice (T. Vol. 6,

99; D. IT 79). AMICA then decided to issue one check to

Blackmon Mooring for $15,889.65 and another check to the

insured for $44,000, but because there was a dispute between

the insured and Blackmon Mooring, AMICA said it needed a

signed proof of loss before IAS released the drafts (T. Vol. 6,

101-102). AMICA then reissued the draft for $15,889 payable

to Blackmon Mooring only (T. Vol. 6, 101).

AMICA's Tom Ferris testified that once Janik requested

the deletion of his name from the $15,889.65 draft, then

AMICA needed the proof of loss as evidence of Janik's

authority to AMICA to pay the claim directly to Blackmon

Mooring (T. Vol. 6, 212). He said AMICA never intended to

deny the claim unless the proof of loss was provided, nor was

the proof of loss considered an end to the claim (T. Vol. 6, 212).

Ferris said the proof of loss would act as a receipt for the money

paid and as an acknowledgment by the insured that he knows

where the money is going (T. Vol. 6, 213). In this case, the

acknowledgment was important because of Janik's dispute with

Blackmon Mooring regarding the amount of its invoices (T.

Vol. 6, 213). Ferris also explained that he didn't pay the Janiks

the $44,000 figure because that amount would vary depending

on what was owed to Blackmon Mooring (T. Vol. 6, 229).

On Feb. 23, Terry sent a letter to Janik telling him that

based on his instructions AMICA had issued a check for

$15,889 to Blackmon Mooring only and a check to him and his

wife for $44,110.35 ($60,000 minus 15,889) (Vol 3b, 26-27; T.

Vol. 6, 102; Ex. 1-K). Terry also enclosed a proof of loss form

and asked Janik to sign and return it, saying that as soon as

Terry received the signed proof of loss, the drafts would be

released (T. Vol. 6, 103).

On Feb. 24, Janik sent a letter to Terry complaining

about his piecemeal approach to the claim, complaining that

Janik's requests were being ignored, requesting a full written

evaluation of Janik's losses and demanding to know when he

could pick up his property (T. Vol. 3b, 30-31; Vol 6, 104; Ex.

13

PISA AC RL AOE AEN OSE MEANT! BAN EPSON OE

D 1-L). Terry responded the next day by telling Janik he could

pick up his property whenever he wanted as Blackmon Mooring

was willing to release it as soon as it received payment (T. Vol.

3b, 32; Ex. DI-M). Terry also explained he had not yet

evaluated the ALE claim because he did not believe he had all

the expenses (T. Vol. 6, 104). He again reiterated that AMICA

was ready to deliver the drafts upon receipt of the proof of loss

and he again explained to Janik that AMICA's policy did not

provide coverage for medical expenses (T. Vol. 3b, 32-33; T.

Vol. 6, 105-107).

On Feb. 28, Janik sent Terry a letter again complaining

about Terry's failure to respond on the ALE claim (Vol 3b, 34-

36; T. Vol. 6, 107-108; Ex. D 1-N). On March 2, Terry wrote

Janik and explained that Terry hadn't responded on the ALE

claim because he did not think he had all the expenses and he

also asked Janik to call him regarding the ALE claim (T. Vol.

3b, 36-37, Vol 6, 108; Ex, D 1-O). Janik never responded to

Terry's request for a phone call (T. Vol. 6, 109). Terry again

told Janik the drafts were ready to be released as soon as the

proof of loss was signed and that signing the proof of loss would

not affect his ALE claim (T. Vol. 3b, 36-37; T. Vol. 6, 108-

109).

On March 7, Terry sent Janik another letter telling him

he didn't understand and couldn't read some of the

documentation submitted in support of Janik's ALE claim and

again asking fora meeting so they could review the information

together (T. Vol. 3b, 38-39; T. Vol. 6, 110; Ex. D 1-P). Janik

never responded (T. Vol. 6, 112).

In the March 7 letter, Terry again stated the two drafts

were ready and would be released to Janik as soon as IAS

received the proof of loss (T. Vol. 3b, 39; T. Vol. 6, 110-111).

On the same date, Terry forwarded his fourth report to AMICA

regarding the handling of the claim and explained his difficulty

getting documertation from Janik regarding the ALE claim (T.

Vol. 6, 112-113; D Ex. IT 80). AMICA responded that Terry

should work up the claim as best he could so that AMICA could

14

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get the claim paid (T. Vol. 6, 114).

After reviewing the ALE documentation, Terry sent a

letter to Janik on March 9 outlining what expenses Terry

thought would be covered under the ALE and enclosing a proof

of loss for the ALE (T. Vol. 6, 127-129). Terry again offered to

discuss the claim with Janik (T. Vol. 6, 129).

On March 9, Terry made another report to AMICA (T.

Vol. 6, 132; D. Ex. IT 81). In that report, Terry noted that after

reviewing the policy, he thought the proof of loss provision may

have been waived (T. Vol. 6, 133). He then recommended that

AMICA forget about the proof of loss, because the claim wasn't

moving and AMICA was a company that always gave the

insured the benefit of the doubt anyway (T. Vol. 6, 133).

During his testimony, Janik noted that one draft of the

March 9 report discussed waiver of the proof of loss provision

and one draft did not (T. Vol. 2, 81). Terry said the draft

containing the discussion of the waiver was the one that went to

AMICA, because he specifically wanted to include it as an issue

(T. Vol. 6, 133-134).

On March 21, Terry sent Janik another letter saying

AMICA was ready to pay both the UPP claim and the ALE

claim upon receipt of the proofs of loss (T. Vol. 3b, 40; T. Vol.

6, 134-135; Ex. D 1-Q). On that day, Terry also sent another

report to AMICA telling AMICA that Janik had requested

another advance and that Janik had paid Blackmon Mooring

himself (T. Vol. 6, 135-137; D IT 83). As soon as AMICA

heard that all of the money would go to Janik, it told Terry it no

longer needed the proof of loss and directed payment to Janik

immediately (T. Vol. 6, 138, 218).

On March 23, AMICA mailed a Janik a $60,000 draft

(T. Vol. 1C, 92; T. Vol. 3b, 40-41; T. Vol. 6, 139-140; D. Ex.

1-R). He also sent Janik a check for $1,020.42 for additional

living expenses and said that he would be sending a check for

$115.16 for Janik's film developing costs (T. Vol. 3b, 41).

On March 28, Terry again wrote to Janik offering to

meet with him if he had any questions regarding the ALE claim

15

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(T. Vol. 6, 140-141). In April AMICA's branch manager met

with Janik in an effort to resolve Janik's unhappiness regarding

the claims handling (T. Vol. 6, 219-220). The attempt at

resolution was unsuccessful.

After Janik picked up his property from Blackmon

Mooring, he took it to Restoration Specialist, but he wasn't

satisfied with its work either (T. Vol. 3b, 45-47), so he took

some of the property to a third cleaning specialist and he threw

the remaining property away (T. Vol. 3b, 45-47).

ARGUMENT

E. Whether an abuse of discretion occurred by denying

Plaintiffs’ Motions to set aside the trial court

judgment based on fraud.

A. Standard of Review

Appellate courts review a trial court’s denial of a

60(b)(3) motion for abuse of discretion. Rozier v. Ford Motor

Co., 573 F.2d 1332, 1346 (5" Cir. 1978). Rule 60(b)(3) permits

a court to “relieve a party ...from a final

judgment...for....fraud...misrepresentation, or other misconduct

of an adverse party....” Fed. R. Civ. P. 60(b)(3). A party

seeking to set aside a judgment on these grounds, however,

must meet the following standard: he must demonstrate by clear

and convincing evidence that 1) the adverse party engaged in

fraud or other misconduct; 2) he must show that the misconduct

foreclosed full and fair preparation or presentation of his case.

Government Financial Servs. One Ltd. Partnership v. Peyton

Place, Inc., 62 F.3d 767, 772 (5" Cir. 1995); Rozier v. Ford

Motor Co., 573 F.2d at 1339. As with all defects in the course

of litigation, in order to warrant relief, he must show that the

16

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.

RYLAND MS ASP Eee FA UE

error was harmful—it must have affected the substantial rights of

the movant. Anderson v. Cryovac, Inc., 862 F.2d 910, 924 (1*

Cir. 1988)(citing Federal Rule of Civil Procedure 61).

If the motion is based on the movant’s allegation that the

adverse party concealed evidence during the discovery process,

then the movant must show that the concealed evidence

substantially interfered with his ability to prepare for trial. Jd.

Substantial impairment may be shown by establishing the

material’s likely worth as trial evidence or by elucidating its

value as a tool for obtaining meaningful discovery. Jd. at 926.

It may exist if a party shows that the concealment precluded

inquiry into a plausible theory of liability, denied it access to

evidence that could have been probative on an important issue

or closed off a potentially fruitful avenue of direct or cross

examination. /d. at 925. In other words, the allegedly

concealed information must be materially related to the primary

issue. See MCI Telecommunications Corp. v. Matrix

Communications Corp., 171 F.R.D. 7, 9 (D. Ma 1997), aff’d.,

135 F.3d 27, 34 n.13 (1* Cir. 1998).

Moreover, the movant must have actively concealed

information during the discovery process. Fraud in responding

to discovery is more than simply putting opposing counsel to

the burden of getting a discovery order. USM Corp. v. SPS

Technologies, Inc., 694 F.2d 505,509 (7" Cir. 1982).

Additionally, no fraud exists where the allegedly withheld

documents were never specifically requested nor diligently

sought. Chrysler Corp. v. Superior Dodge, Inc., 83 F.R.D. 179,

195 (D. Md. 1979). Finally, a narrow or precise answer to the

question actually asked and the failure to volunteer more

information does not constitute misconduct. Harduvel v.

17

General Dynamics Corp., 801 F. Supp. 597, 608-09 (M.D. Fla.

1992).

Lastly, a movant may not be entitled to relief where the

alleged misconduct was discovered in time to oppose it, since

the actual cause of the adverse judgment is not the alleged

misconduct but the movant’s failure to act. Cutler v. Lewiston

Daily Sun 103 F.R.D. 172, 174-75 (Me. 1984)(relief not

warranted where the cause of an adverse summary judgment

was not defendant’s misstatement in its motion for summary

judgment that certain facts were undisputed, but plaintiff's own

failure to timely file written objections.) See also Ojedo-Toro

v. Rivera-Mendez, 853 F.2d 25, 29 (1* Cir. 1988)(party cannot

prevail on a 60(b)(3) motion where movant had knowledge of

alleged misconduct.)

B. 60(b)(3) Motion and the Motion to Reconsider

Plaintiffs sought to set aside the judgment because of the

following acts of alleged “fraud”: 1) Amica allegedly withheld

documentary evidence that it was number one in customer

satisfaction; 2) IAS allegedly gave Plaintiffs confusing

information regarding its identity; 3) Amica and IAS allegedly

delayed in producing recap notes; 4) AMICA and IAS failed to

produce any documentary evidence that Plaintiff Ernest Janik

wanted his furniture 100% germ-free; 5) AMICA and IAS

failed to produce any documentary evidence regarding

acceptable claims handling procedure or that AMICA routinely

gave the benefit of the doubt to its insureds; 6) a defense expert

allegedly testified outside the scope of his expert report.

Although Plaintiffs complain that they were unable to

prepare for trial because of Amica’s and IAS’s gamesmanship

during discovery, Plaintiffs never asked for most of the material

18

they subsequently complained they didn’t receive. Any

material they asked for and did not receive was the subject of a

timely objection by Amica. Plaintiffs did not bring any motions

to compel against Amica during the entire eighteen-month

discovery period (Exhibit “A” and Exhibit “B” to Amica’s

Response to Plaintiff's Motion for Relief from Judgment’).

Assuming that Plaintiffs believed Amica was being

obstreperous in its discovery responses, then they should have

filed a motion to compel discovery, rather than wait until they

received an adverse judgment and then cry foul.

Plaintiffs also complain they were surprised by some of

the testimony at trial. Yet, Plaintiffs did not take a single

deposition of a defense fact witness nor of a defense expert

witness prior to trial. (Exhibit “A” and Exhibit “B” to Amica’s

Response to Plaintiff's Motion for Relief from Judgment)

Undoubtedly, Plaintiffs were surprised by some of the testimony

at trial. This surprise, however, did not result from Amica’s

“gamesmanship.” It was caused solely by Plaintiffs’

lackadaisical approach to trial preparation.

i. It was not an abuse of discretion to refuse to set aside

the judgment set aside because Amica allegedly

concealed information that it is Number 1 in

customer satisfaction, because Plaintiffs presented no

evidence that they ever made a discovery request

that encompassed this information and_ they

presented no evidence of how this alleged failure to

disclose hindered trial preparation.

' Record references are not available for the 1999 district

court actions.

19

Plaintiffs’ complain that defense witnesses testified

during trial that Amica was number one in consumer

satisfaction and that they were not given this information during ~

the discovery process. First, as the district court noted, the

Plaintiffs did not produce any evidence that they made a

discovery request that encompassed this information. See

Chrysler Corp. v. Superior Dodge, 83 F.R.D. at 195. Amica

was under no obligation to provide information about consumer

happiness with its services unless such information was the

subject of a proper discovery request and relevant to the lawsuit.

Without evidence that Plaintiffs made such a request, Plaintiffs

cannot establish misconduct by clear and convincing evidence.

Additionally, no evidence existed that the alleged

withholding of information about Amica’s high level of

customer satisfaction in any way impaired Plaintiffs’ ability to

prepare for trial. See Rozier v. Ford Motor Co., 573 F.2d at

1339 (must show misconduct prevented full litigation of the

case). The alleged evidence that Amica is the highest-rated

insurance company in the land would not have helped Plaintiffs

in their quest to establish Amica as uncaring and bullying. It

would not have helped in their quest for punitive damages.

This information would not have established a theory of liability

nor did it foreclose an avenue of cross-examination.

As the district court observed, Plaintiffs acknowledged

that they had information in their possession regarding

consumer complaints regarding Amica’s services, but they

chose not to use this information to cross-examine Amica’s

witnesses because it was a timed trial. In essence, Plaintiffs

admit that it was their own litigation strategy that stopped the

cross-examination, not any alleged misconduct on the part of

20

Amica. In retrospect, Plaintiffs may regret some of their

decisions regarding strategy, but those decisions were not due

to the misconduct of Amica and IAS and cannot be used to set

aside the judgment.

y 2 It was not an abuse of discretion to refuse to set aside

the judgment because Plaintiffs were “confused”

about IAS’ identity.

Plaintiffs failed to establish by clear and convincing

evidence any misconduct with regard to the identity of IAS.

The only evidence that Plaintiffs pointed to as evidence of

misconduct in this regard was Exhibit “B” to their first motion,

which was a copy of letter from IAS counsel to Plaintiffs’

counsel outlining the corporate history of IAS. Plaintiffs did not

produce any evidence that this corporate history was incorrect.

Instead, their sole contention was that it was confusing.

Plaintiffs’ confusion over evidence does not justify a new trial.

Plaintiffs’ Exhibit “B” shows that IAS has undergone

several corporate reorganizations, acquisitions etc. with

accompanying name changes. This is not unusual in today’s

business environment. The footnotes in the letter indicates each

of the representations was backed up by reference to an official

document. Plaintiffs did not alleged any of these documents

were incorrect. Because Plaintiffs have not produced any

evidence of misconduct with regard to IAS’ identity, they are

not entitled to have the judgment set aside on that ground.

Plaintiffs’ also claim that IAS representative David

Terry’s testimony at trial conflicted with Exhibit “B.” First, not

every discrepancy in testimony rises to the level of fraud. See

21

Washington v. Patlis, 916 F.2d 1036, 1039 (5" Cir.

1990)(holding conflicting testimony does not constitute clear

and convincing evidence of fraud under 60(b)(3)). Second,

Plaintiffs were free to present that conflicting information to the

jury and have the jury interpret the meaning of the conflict. See

Id. Plaintiffs’ attorney could easily have shown Exhibit “B” to

the jury and reminded the jury of David Terry’s testimony, and

argued that this information was confusing. Plaintiffs are

apparently unhappy because they only picked up on the alleged

conflict between David Terry’s-testimony and Exhibit “B” at

trial. They, however, likely would have heard David Terry’s

explanation before trial, if they had bothered to depose him.

Finally, it is unclear why this alleged confusion is even

relevant. IAS stipulated as to who was the proper party to the

litigation. IAS didn’t escape from the judgment because of a

misnomer in the complaint, and Plaintiffs were not prevented

from putting on any evidence of liability because of this alleged

confusion. The entire matter is a red herring. Unless the

alleged fraud is materially related to a submitted issue, it is not

grounds for setting aside a judgment. See MCI

Telecommunications Corp. 171 F.R.D. at 9.

a It was not an abuse of discretion to refuse to set aside

the judgment because of a delay in producing the

recap notes since it is undisputed that Plaintiffs had

the recap notes almost a year before trial.

Plaintiffs admit they had the recap notes prior to trial,

because defense experts provided them. (R. Vol. 56, p. 0013) In

fact, the expert files were first produced to Plaintiffs almost a

year before trial. (See Exhibit “B” to Amica’s Response to

22

Ee

Plaintiff’ s Motion to Set Aside the Judgment). A movant may

not prevail on a 60(b)(3) motion when he had access to the

information. Ojeda-Toro v. Rivera-Mendez, 853 F.2d at 29.

Thus, evidence which Plaintiffs had for more than a year before

trial cannot serve as a basis for setting aside a judgment.

Plaintiffs’ complaint about the recap notes is that his

experts did not have them when filing their report. This

complaint is without merit. Plaintiffs’ expert Robert Lazarus

filed a supplemental expert report on Jan. 7, 1998 in which he

discussed the recap notes. (See Exhibit “C” to Amica’s

Response to Plaintiff's Motion to Set Aside the Judgment ).

This supplemental report was filed more than eight months

before trial. Thus, the alleged delay in producing the recap

notes did not hinder Plaintiffs’ trial preparation.

4. It was not an abuse of discretion to refuse to set aside

the judgment because AMICA failed to produce

documents showing that Plaintiffs wanted their

furniture 100% germ free, as there is no evidence

that such documents exist.

Plaintiffs produced no evidence that AMICA has

documents reflecting that Plaintiff wanted his furniture 100%

germ free. Unless AMICA had such documents in its

possession, custody and control, it was not obligated to produce

the documents. Fed. R. Civ. P. 34. :

Moreover, Plaintiffs produced no evidence that they

made any discovery requests that encompassed such documents,

if they exist. The Plaintiffs complained that defense witnesses

testified that Janik wanted his furniture 100% germ free (T. Vol.

6, 30). The testimony of the defense witnesses, however,

23

appears to be based on anecdotal information exchanged among

the various defense witnesses. No one testified that Plaintiffs

made a written request that the furniture be 100% germ free.

Plaintiffs might have been justified in objecting to this

testimony as hearsay, or otherwise impeaching the testimony,

but they are not entitled to have the judgment set aside based on

- the testimony. Moreover, they possibly would not have been

surprised by the testimony if they had ever bothered to take the

deposition of a defense witness prior to trial. Finally, Plaintiffs

conceded they were able to dispute this information by

presenting their own evidence to the jury that Plaintiffs wanted

the materials cleaned to EPA standards. Thus, without more,

Plaintiffs were certainly not entitled to, and the Fifth Circuit did

not err by refusing, a new trial.

5. It was not an abuse of discretion to refuse to set aside

the judgment because AMICA failed to produce

documents regarding generally acceptable claims

handling practices or documents that demonstrated

that it routinely gave the benefit of the doubt to the

insured, as there is no evidence that such documents

exist.

Plaintiffs produced no evidence that AMICA had

documents regarding generally acceptable claims handling

procedures in its possession, custody or control. Unless

AMICA had such documents in its possession, custody and

control it was not obligated to produce the documents. Fed. R.

Civ. P. 34(c). Although Amica’s expert Ken Shumaker testified

regarding generally accepted claims handling procedures, his

testimony indicates that the basis for this testimony was his

many years in the insurance industry. (T. Vol. 6, p. 234-259).

24

$e ee

Likewise, a review of the testimony from witnesses that Amica

routinely gave the benefit of the doubt to its insureds seems to

be based on the witnesses experience in the industry and not on

any written document that they reviewed. (T. Vol. 6, p. 109-

112).

6. It was not an abuse of discretion to refuse to set aside

the judgment because a defense expert testified

outside the scope of his report.

scope of his expert report, then such testimony was improper.

See Fed. R. Civ. P. 26(a). The remedy, however, is for

Plaintiffs to move to have the testimon y stricken. See Fed. R.

Civ. Prac. 37(c). No authority exists for the proposition that

testimony exceeding the scope of an expert report justifies .

setting aside a judgment.

7. It was not an abuse of discretion to deny Plaintiffs’

motion to reconsider because the motion to

reconsider to meet the required heavy burden to set

aside a judgment.

Plaintiffs’ Motion to Reconsider was devoid of any

evidence showing that the trial court had abused its discretion

in denying the Motion to Set Aside Judgment. Indeed, all of the

evidence submitted in support of the Motion to Reconsider

Specifically, with regards to their complaints that Amica

withheld information that it was number one in consumer

satisfaction, Plaintiffs claim they were damaged by this lack of

25

disclosure because as a result, they fail to used Plaintiffs Ex.

431, 432 and 433 which allegedly involved thousands of pages

of complaints against Amica. (PL. R. Ex. 2, tab H, p. 8).

Plaintiffs admit that they had the impeachment evidence ready

and available at trial. It was simply because they chose to

present other evidence, that they did not emphasize this

evidence to the jury. It had nothing to do with any alleged

withholding of material by Amica.

With regards to their complaints regarding the testimony

that Amica always gave its insured the benefit of the doubt, that

Plaintiffs wanted their furniture to be 100% germ free and

_Amica’s claims-handling procedures, they failed to produce any

evidence that written material to that effect existed as opposed

to the testimony being based on the experience of the witness or

anecdotal information.(PL. R. Ex. 2, tab H, p- 9, 10, 12).

8. It was not an abuse of discretion to refuse to set aside

the judgment because the alleged withholding of the

complained of material deprived Plaintiffs’ of their

constitutional right to trial by jury.

Plaintiffs argue they were deprived of a trial by jury

because the alleged discovery abuse resulted in Amica receiving

summary judgment on some of the causes of action asserted

against Amica by Plaintiffs and in receiving a JNOV following

trial on the merits.

First, Plaintiffs did not raise this below in their 60(b)(3)

motion or the motion to reconsider and is therefore waived. Cf.

Williams Transportation v. Times Warner Operation, Inc., 98

F.3d 179, 183 (5 1996)(refusing to review argument not raised

in response to motion for summary judgment).

26

Second, Plaintiffs have already raised this issue in their

brief filed in a previous appeal. Thus, this is an impermissible

attempt at two bites of the apple. Moreover, if Plaintiffs felt

evidence was being withheld that would have precluded

summary judgment on those claims, they should have filed a

motion for extension of time to respond to the summary

judgment so that discovery could be conducted under Federal

Rule of Civil Procedure 56(f). They still would have had to ask

for the material and in most cases there is no evidence that they

did so. In addition, the material still must exist before Amica

would have an obligation to produce it.

It is unclear how this alleged material, if it existed,

would have changed the partial summary judgment. Amica

received summary judgment on Plaintiffs’ causes of action for

DTPA, coercion and duress, breach of fiduciary duty, breach of

quasi contract and unconscionable conduct. Plaintiffs do not

explain how any of the allegedly withheld material relates to

any of these causes of action. To the extent that the recap notes

might have affected Plaintiffs’ defense to any of the summary

judgment claims, it should be noted that AMICA did not receive

partial summary judgment until June 1998. (R. Vol. 48, p.559).

Plaintiffs had the recap notes in their possession for months by

then, as their expert had filed a supplemental report on January

7, 1998, discussing the recap notes. (Exhibit “C” to Amica’s

Response to Plaintiff's Motion).

CONCLUSION

For the reasons stated, the Supreme Court of the United

States should affirm the opinion of the United States Court of

Appeals for the Fifth Circuit, and grant such further relief as is

just. “se

27

Respectfully submitted,

FANNING, HARPER & MARTINSON

8117 Preston Road, 3“ Floor

Dallas, Texas 75225

(214) 369 - 1300 (Telephone)

(214) 987 - 9649 (Facsimile)

Eric G. Walraven

SBN 00794814

ATTORNEYS FOR RESPONDENT

28

CERTIFICATE OF SERVICE

This is to certify that three true and correct copies of the

foregoing instrument have been mailed via first-class mail to the

following parties of record in compliance with this Court’s rules

on this 20th day of June, 2001:

James J. S. Johnson

Plaza of the Americas

600 North Pearl Street, #860

Dallas, Texas 75201

Attorney for Plaintiffs

R. Brent Cooper

Cooper & Scully, P.C.

Founders Square #100

900 Jackson Street |

Dallas, Texas 75202

Attorney for IAS

ERIC G. WALRAVEN