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Burris v. Gulf Underwriters Insurance Co.

United States District Court, D. Minnesota

May 20, 2014


Thomas F. Handorff, HANDORFF LAW OFFICERS, P.C., for plaintiffs.

Thomas A. Gilligan, Jr. and Nicholas J. O'Connell, MURNANE BRANDT, PA, for defendant.


JOHN R. TUNHEIM, District Judge.

Plaintiffs Lowell and Joyce Burris bring this motion for a new trial, or, in the alternative, summary judgment, after a jury returned a verdict in favor of Defendant Gulf Underwriters Insurance Company ("Gulf"). Because the Court concludes that the lack of a spoliation instruction and admission of Plaintiffs' former counsel's disciplinary record were not in error, the Court will deny the motion.


Plaintiff Lowell Burris was injured while using a ladder manufactured by Versa Products, Inc. ("Versa"). Plaintiffs and Versa entered into an agreement under Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982), pursuant to which Versa admitted liability and permitted Plaintiffs to seek recovery from Versa's insurance company, Gulf. (Stipulation, Sept. 27, 2013, Docket No. 153.) Versa held a "claims-made" insurance policy issued by Gulf from March through May 2003, meaning that the policy covers any claim that was made during that time, regardless of when the underlying injury occurred. (First Aff. of Thomas F. Handorff, Ex. 2 ("Policy"), Jan. 2, 2013, Docket No. 122.) The policy defines a claim as being "made" when "notice of such claim is received and recorded by any insured or by us, whichever comes first." (Policy at 7.)[2]

Plaintiffs claim that the policy covers Lowell Burris' claim because his former counsel, Dennis Letourneau, mailed a letter to Versa detailing the claim on March 14, 2003. Gulf disputes that Versa received or recorded the letter. In an order dated August 26, 2013, the Court denied motions for summary judgment by both parties. Burris v. Versa Prods., Inc., Civ. No. 07-3938, 2013 WL 4519338, at *7 (D. Minn. Aug. 26, 2013). The Court concluded that affidavits by Letourneau and his secretary, Gina Dorethy, stating that the letter was mailed sufficed to defeat Gulf's motion for summary judgment, even though there is no physical evidence of it having been mailed (e.g. a photocopy or certification) because the affidavits were enough to trigger a rebuttable presumption under Wisconsin law that a mailed letter was received. Id. at *4.[3] The Court declined, however, to grant Plaintiffs' motion for summary judgment on the issue of receipt because it concluded that testimony by Versa's former CEO, David Lambert, that Versa did not receive the letter, rebutted the presumption and made the issue one for the jury. Id. at *5 (citing State ex rel. Flores v. State, 516 N.W.2d 362, 370 (Wis. 1994) ("If the defendant denies receipt of the mailing, the presumption is spent and a question of fact is raised.")). The Court further concluded that a fact issue remained as to whether the claim letter was "recorded" while the policy was in effect. Id. at *5-6.

The parties proceeded to trial, where they agreed that the two issues for the jury were whether the supposed March 14, 2003 claim letter from Letourneau was received and recorded by Versa during the effective period of the policy. ( See Proposed Jury Instructions and Verdict Form, Ex. 1, Dec. 4, 2013, Docket No. 188.) Both parties submitted motions in limine. Plaintiffs requested, among other things, that the Court include an adverse inference instruction on account of spoliation, pointing to the fact that a third-party claims handler for Versa had sent thirty-three boxes of records back to Versa, which Versa subsequently destroyed. (Pls.' Mot. in Limine at 7-8, Nov. 17, 2013, Docket No. 166.) Plaintiffs also requested that the Court exclude any evidence of the attorney disciplinary history of Dennis Letourneau, Plaintiffs' former counsel, as irrelevant and prejudicial. ( Id. at 4-6.) The Court preliminarily denied the spoliation instruction request, inviting Plaintiffs to again seek the instruction after having produced evidence at trial that would warrant the instruction. (Minute Entry, Dec. 2, 2013, Docket No. 186.) The Court granted in part and denied in part Plaintiffs' request regarding Letourneau's disciplinary history, concluding that evidence of his disciplinary proceedings relating to his office mailing practices would be admissible but the actual consequences he faced as a result of those proceedings (including his suspension), would not be. ( Id. ) After three days of trial, the jury returned a verdict for Gulf, concluding that Versa did not receive a claim letter regarding Burris' injuries during the relevant period of the policy. (J., Dec. 9, 2013, Docket No. 196.)

Plaintiffs now move for a new trial, or, in the alternative, reconsideration of their motion for summary judgment. ( See Mem. in Supp. of Mot. for New Trial at 1, Jan. 6, 2014, Docket No. 201.) Plaintiffs make two arguments in support of their motion for a new trial: first, that the Court erred in declining to issue a spoliation instruction to the jury on account of the thirty-three boxes of records Versa destroyed, and second that the Court erred in admitting evidence of Dennis Letourneau's disciplinary history.



A. Standard of Review

Under Rule 59(a) of the Federal Rules of Civil Procedure, the Court may grant a motion for a new trial "on all or some of the issues." Fed.R.Civ.P. 59(a)(1). "A new trial is appropriate when the first trial, through a verdict against the weight of the evidence... or legal errors at trial, resulted in a miscarriage of justice." Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996). "District courts enjoy broad discretion in choosing whether to grant a new trial...." Douglas Cnty. Bank & Trust Co. v. United Fin. Inc., 207 F.3d 473, 478 (8th Cir. 2000) (alteration and internal quotations omitted). A motion for a new trial should be granted only if the jury's verdict is so against the great weight of the evidence that it constitutes a miscarriage of justice. Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000).

B. Spoliation Instruction

Plaintiffs first argue that a new trial is warranted because the Court erred in declining to give an adverse inference instruction to the jury on the basis of the thirty-three boxes of files returned to Versa by its third-party handler that were destroyed. Plaintiffs sought to instruct the jury that:

If evidence is destroyed that could reasonably be expected to have been produced, and the party who destroyed the evidence fails to give a reasonable explanation, you may decide that the ...

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