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Zientek v. State Farm Fire & Casualty Co.

September 26, 2007


The opinion of the court was delivered by: Chief Judge Curtis L. Collier


Before the Court are a number of motions in limine filed by State Farm Fire & Casualty Co. ("Defendant"). The case set for trial on Monday, December 10, 2007. Specifically, Defendant has filed six (6) motions in limine to exclude evidence (Court File Nos. 39, 40, 41, 42, 43, 44). During a hearing on another matter in this case, the Court struck the responses of Patrick J. Zientek ("Plaintiff") for violations of Local Rule 83.4(c) (Court File No. 108). For reasons set forth below, the Court will GRANT, DENY, and RESERVE RULING on these motions. This ruling is based upon the facts before the court at this time. Should facts submitted at trial differ from those presented, the Court may revisit these rulings.


Plaintiff and Mrs. Charlotte Zientek (collectively, "Plaintiffs") own a home located at 8235 Middle Valley Road, Hixson, Tennessee (the "Home") (Court File No. 1, Ex. A). Defendant insures the Home and its contents (Court File No. 7, ¶ 2). On Sunday, November 7, 2004, Plaintiff dialed "911" to report a fire at his Home (Court File No. 5, Ex. F, p. 160). On the same day, the Dallas Bay Volunteer Fire Department received a call, reporting a house fire at the Home (the "Fire") (Court File No. 5, Ex. B, p. 160). Fire Chief Al Rosemond responded to the Fire, eventually completing a Basic Fire Incident Report ("Fire Report"). The Fire Report indicated the ignition factor was "suspicious" and the Fire originated in "multiple locations" (id.). Further, the Fire Report lists the source of the heat as "match" (id.).

Plaintiff was at home alone when the fire started (Court File No. 5, Exs. D, E; Court File No. 11, ¶ 4). Plaintiff admits there were two fires in two separate locations (Court File No. 11, ¶ 4). Plaintiffs claim the Fire was caused by incense, a catalyst within the coverage of their insurance policy (Court File No. 1-2 ¶ VI). Defendant alleges that Plaintiffs intentionally set the fire (Court File No. 3 ¶¶ 5, 9).

Plaintiffs instituted this action against Defendant for breach of their insurance contract in the Circuit Court of Hamilton County, Tennessee, on October 21, 2005 (Court File No. 1-2 ¶¶ XI, XII). Defendant removed the action from state court to this Court (Court File No. 1). This Court granted partial summary judgment in Defendant's favor on April 10, 2006, dismissing Plaintiffs' claims for recovery of the statutory "bad faith" penalty, punitive damages, damages for emotional distress, and attorney's fees (Court File No. 15).

Trial in this case has been continued four (4) times. Originally set for February 5, 2007, trial was continued to February, 26, 2007 (Court File Nos. 17, 33), June 25, 2007 (Court File No. 59), October 1, 2007 (Court File No. 67), and, finally, December 10, 2007 (Court File No. 108).

Defendant filed the pending motions in limine on February 7, 2007 (Court File Nos. 39, 40, 41, 42, 43, 44). The Court set the deadline for responses on August 10, 2007 (Court File No. 74); though represented, Plaintiff pro se filed responses, which the Court struck (Court File No. 108). As no more responses were filed, this matter is ripe for decision.


A. Defendant's Motion in Limine to Exclude Evidence of Payments Made to Plaintiffs (Court File No. 39)

Defendant first seeks to exclude evidence of payments made pursuant to the terms of its insurance policy with Plaintiffs (Court File No. 39). Defendant argues "any payments made under the Policy were being made under a clear reservation of right, therefore, plaintiffs cannot prove that Defendant waived its right to deny the claim or is otherwise estopped from denying the claim by virtue of these payments" (id. at 3). Defendant argues since "[P]laintiffs cannot prevail on a claim of equitable estoppel . . . any testimony regarding payments made by [Defendant] under reservation of rights should be excluded." (Id. at 4).

Under the terms of the insurance policy, payments made for covered claims may not be interpreted as admissions of liability (id., Ex. A, p. 30). The first payment was made on November 9, 2004 (id., Ex. D, p. 4). On December 2, 2004, Defendant notified Plaintiffs that such payment did not waive any of the conditions of their insurance contract (id., Ex. B).

Under the Federal Rules, relevant evidence is generally admissible and irrelevant evidence is not admissible. Fed R. Evid. 402. Relevant evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Fed. R. Evid. 401.

Both the insurance contract and a separate letter explained that any payments were made under a reservation of right. Under both the terms of the contract and the notice the payments are not an admission of liability. The payments therefore, ...

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