United States District Court, D. Oregon
OPINION AND ORDER
JELDERKS U.S. MAGISTRATE JUDGE.
initial mater, the Defendant's motion to strike
Plaintiffs Supplemental Memorandum (Dkt. #61) is DENIED.
Prior to receiving the motion I had already read the
Green-Hite deposition and the Supplemental Memorandum.
Neither document changed my mind as to the rulings that I
intended to make. In fact, Mr. Green-Hite's agreement
that the IRS was another reason why the sale fell through
bolstered my conclusion that there was insufficient evidence
to allow the jury to consider the claim that there was a
pending sale and that Sentinel's conduct was the reason
it was not completed.
Lioness Holdings brings this action against Defendant
Sentinel Insurance Company, asserting claims for breach of
contract and breach of the covenant of good faith and fair
dealing. The parties have filed cross-motions for summary
judgment which came before the Court for oral argument on
June 8, 2018. Trial is currently set for July 9, 2018. For
the reasons set out below and on the record at oral argument,
Defendant's motion for summary judgment is DENIED in part
and GRANTED in part and Plaintiffs motion for partial summary
judgment is DENIED.
1. There is no coverage for Plaintiffs loss for property
entrusted to Ryan Reeves and/or anyone with a "master
key" (Second Affirmative Defense).
motion is DENIED. As I indicated at oral argument, the Court
finds that, for the purposes of this case, the losses in
question were caused by Ryan Reeves. This was in effect
agreed to by the parties. Although the Plaintiff now would
like it to be a question of fact, the opinion stated many
times by Mr. Lamka that Mr. Reeves was the perpetrator is
well supported by the reasons he gave for his conclusion.
Defendant Sentinel has agreed that Mr. Reeves was the
perpetrator. When Mr. Reeves was given the opportunity to
testify otherwise, he refused to testify pursuant to his
rights under the Fifth Amendment. However, the motion is
denied because there is a question of fact as to whether the
property in question was "entrusted" to him at the
time of the incidents.
1A. In the alternative, there was only one
"occurrence" as a matter of law and the Employee
Dishonesty coverage limits Plaintiffs loss to $10, 000, which
has been paid in full.
This motion is DENIED. As I indicated at oral argument, the
Plaintiff is entitled to present evidence to the jury as to
all ten events.
2. There is no coverage for Plaintiffs loss due to Plaintiffs
failure to cooperate (Third Affirmative Defense).
This motion is DENIED. As I indicated at oral argument, this
defense presents a fact question for the jury.
3. In the alternative, Defendant moves for partial summary
judgment against Plaintiff s claims for "loss in
revenue" and "loss in value" because they are
excluded as consequential damages under the terms of the
Policy (Fifth Affirmative Defense).
This motion is DENIED as moot based on the Court's ruling
in the following alternative motion.
3 A. In the alternative, there is no colorable evidence in
support of Plaintiff s claims for "loss in revenue"
and "loss in value" and they should be dismissed.
motion is GRANTED. A careful review of Mr. Lamka's
testimony as supplemented by the Green-Hite deposition leads
to the conclusion that the Plaintiff has not presented
coherent, consistent, objective, non-speculative evidence to
support either of these large claims. Under Oregon law it is
not necessary to prove the exact amount of lost profits, but
the factfinder's decision cannot be based on conjecture,
guesswork or speculation. Evidence that is "merely
colorable" or "not significantly probative"
does not present a genuine issue of material fact and does
not preclude the grant of summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
2505, 2511 (1986)(citations omitted). Mr. Lamka stated that
it was not possible to determine lost profits on each
individual store. However, Sentinel's expert was
apparently able to do so and determined that there was ...