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McElgunn v. CUNA Mutual Group

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION


May 21, 2009

SHARON MCELGUNN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TERI POWELL, PLAINTIFF,
v.
CUNA MUTUAL GROUP; DESIGNATIONS CUNA MUTUAL LIFE INSURANCE COMPANY; AND CUNA MUTUAL INSURANCE SOCIETY, DEFENDANTS.

The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER ON DEFENDANTS' OBJECTIONS TO DEPOSITION

CUNA Mutual generally objects to the introduction of any evidence with respect to the time filing clause or issues relating to time filing and evidence that plaintiff was "denied" benefits on the basis of relevancy under Federal Rules of Evidence 401, 402, and 403. While plaintiff's insurance claim was not ultimately denied for time filing, it was initially denied for time filing. That decision was ultimately overturned on appeal. The initial denial and the manner in which plaintiff's claim was handled is directly relevant to plaintiff's claim that CUNA Mutual acted in bad faith in delaying payment on her claim. The probative value of the evidence outweighs any unfair prejudice to CUNA Mutual. Therefore, the general objection to such evidence is overruled.

Also, in all instances, the objections of the attorney should be removed from the video deposition.

The court makes the following rulings on defendant's specific objections to designation of deposition testimony of:

TERI POWELL

Page(s) and line(s) Ruling Page 4, lines 15-20 Overruled. Relevant on plaintiff's bad faith claim for delay in payments of insurance benefits. Probative value outweighs any unfair prejudice to defendant.

Page 4, lines 21-24 Overruled. Defendants' objections were waived because they were not made during the deposition. See Rule 32(d)(3)(B) and Wright & Miller, Federal Practice & Procedure; Civil 2d § 2113.

Page 4, line 25 Overruled.

Page 5 Overruled.

Page 6 Overruled.

Page 7 Overruled. Foundation objection was waived because it was not made during the deposition.

Pages 8-9 Overruled.

Page 10, lines 1-3 Overruled.

Page 11, lines 4-25 Sustained.

Page 12, lines 1-15 Sustained.

Page 13, lines 23-25 Overruled.

Page 14, lines 1-7 Overruled.

Page 14, lines 14-25 Overruled.

Page 15, lines 1-12 Overruled.

Page 15, lines 19-21 Overruled.

Page 15, lines 24-25 Overruled. Objection waived because not made during deposition.

Page 16, lines 1-10 Overruled. Objection waived because not made during deposition.

Page 17, lines 5-16 Overruled. Objection waived because not made during deposition.

Page 19, lines 15-19 Overruled. Relevant pursuant to court's ruling at Docket 300. Page 20, lines 3-15 Overruled.

Page 21, lines 12-25 Overruled. Relevant pursuant to court's ruling at Docket 300. Page 22 Overruled.

Page 23, lines 6-16 Overruled.

Page 24 Overruled.

Page 25, lines 3-9 Overruled.

Page 25, lines 10-13 Overruled.

Admission of party opponent.

Page 25, lines 14-18 Overruled. Objection waived for failure to raise it during the deposition.

Page 25, lines 19-25 Overruled. Objection waived for failure to raise it during the deposition.

Page 26, lines 1-20 Overruled.

Page 26, lines 21-25 Overruled. Objection waived for failure to raise it during the deposition.

Page 27 Overruled.

Page 28 Overruled.

Page 29 Overruled.

Page 30 Overruled.

LEZLEE COLLIER

Page(s) and line(s) Ruling Pages 7-13, line 21 Overruled. Page 13, line 22, to Sustained. page 14, line 1 Page 14, line 2, to Sustained. page 14, line 6 Page 28, line 17 to Overruled. page 32, line 6 Page 32, lines 7-18 Overruled. Page 32, line 19 to Overruled. page 33, line 1 Page 33, line 2 to Overruled. page 33, line 25 Page 34, line 1 to Overruled. page 34, line 15 Page 34, line 16 to Overruled. line 24 Page 34, line 25 to Overruled. page 35, line 3 Page 35, line 4 to line 25 Overruled. Page 36, line 1 to Overruled. page 36, line 19 Page 36, line 20 to Sustained. page 37, line 13 Page 42, lines 9-20 Overruled. Page 42, line 21 to Sustained. page 43, line 6 Page 55, line 20 to Overruled. page 56, line 18 Page 56, line 19 to Overruled. page 56, line 23 Page 56, line 24 to Overruled. page 57, line 12 Page 57, lines 13-18 Sustained.

HELEN KOPPES--10/2/2007

Page(s) and line(s) Ruling Page 5, lines 14-19 Sustained. Page 7, lines 4-11 Overruled. Page 9, line 15 to Overruled. page 10, line 23 Page 13, lines 16-23 Sustained. Page 24, lines 2-25 Overruled.

Page 25, line 1 to Overruled. page 26, line 12 Page 28, line 11 to Overruled. page 29, line 14 Page 30, lines 10-15 Overruled. Page 30, lines 16-23 Sustained. Page 30, line 24 to Overruled. page 31, line 21 Page 31, line 22 to Sustained. page 33, line 18 Page 35, lines 1-10 Overruled. Page 37, lines 23-25 Overruled. Page 38, lines 1-9 Overruled.

HELEN KOPPES--11/19/2008

Page(s) and line(s) Ruling Pages 5-7 Overruled.

Page 8, lines 1-25 Overruled.

Page 9 Overruled.

Page 10 Overruled.

Page 11, lines 1-3 Overruled.

Page 11, lines 4-6 Sustained.

Page 11, lines 7-25 Overruled.

Page 12 Overruled.

Page 13 Overruled.

Page 14, lines 1-23 Sustained. Lack of foundation. Page 14, lines 24-25 Overruled.

Page 15, lines 1-21 Overruled. Page 16, lines 21-25 Overruled. Page 17 Overruled. Page 18 Overruled. Page 19, lines 1-3 Overruled. Page 19, lines 4-12 Sustained. Page 19, lines 13-25 Overruled. Page 20 Overruled. Page 21, lines 1-14 Sustained. Page 21, lines 15-23 Overruled. Page 21, line 24 to Overruled. page 22, line 7 Page 22, lines 8-23 Overruled. Page 22, line 24 to Sustained. page 23, line 7 Page 23, lines 8-25 Overruled. Page 24 Overruled. Page 25, lines 1-6 Overruled. Page 25, lines 7-14 Sustained. Page 25, lines 15-25 Overruled. Page 26 Overruled. Page 27, lines 1-23 Overruled. Page 27, lines 24-25 Sustained. Page 28, lines 1-8 Sustained. Page 28, lines 9-25 Overruled. Page 29, lines 1-11 Overruled. Page 30, lines 6-25 Overruled.

Page 31 Overruled.

Page 32 Overruled.

Page 33, lines 1-14 Overruled.

Page 33, line 15 to Sustained. page 34, line 14 Page 34, lines 15-21 Overruled.

Page 34, lines 22-25 Sustained.

Page 35, lines 1-5 Sustained.

Page 35, lines 6-25 Sustained.

Page 36, lines 1-19 Sustained. Argumentative. Page 38, lines 4-25 Overruled.

Page 39 Overruled.

Page 40, lines 1-13 Overruled.

Page 40, lines 14-25 Sustained.

Page 41, line 1 Sustained.

Page 43, lines 11-25 Overruled.

Page 44, lines 1-3 Overruled.

Page 44, lines 4-12 Sustained.

Page 44, lines 13-25 Overruled.

Page 45 Overruled.

Page 46, lines 1-18 Overruled.

Page 46, lines 19-25 Sustained.

Page 47, lines 1-4 Sustained.

Page 47, lines 5-19 Overruled.

Page 47, lines 20-25 Sustained.

Page 48, lines 1-7 Sustained.

Page 48, lines 8-25 Overruled. Page 49 Overruled. Page 50 Overruled. Page 51 Overruled. Page 52, lines 1-17 Overruled. Page 52, lines 18-25 Sustained. Page 53, line 1 to Sustained. page 57, line 22 Page 57, lines 23-25 Overruled. Page 58, lines 1-12 Overruled. Page 58, lines 13-19 Sustained. Page 58, lines 20-25 Overruled. Page 59, lines 1-3 Overruled. Page 59, lines 4-25 Sustained. Page 60, lines 1-25 Sustained. Page 61, lines 1-2 Sustained. Page 61, lines 3-12 Overruled. Page 61, lines 13-25 Sustained. Page 62, lines 1-13 Sustained. Page 63, lines 15-25 Sustained. Page 64, lines 1-4 Sustained. Page 64, lines 5-25 Overruled. Page 65, lines 1-3 Overruled. Page 65, lines 4-13 Sustained.

CHERYL BRANDENBURG

Page(s) and line(s) Ruling Page 5, lines 5-25 Overruled. Page 6 Overruled. Pages 8-9 Overruled. Page 10 Overruled. Pages 11-13 Overruled. Page 14, lines 1-3 Overruled. Page 14, lines 4-19 Sustained. Page 14, lines 20-25 Overruled. Page 15, lines 1-9 Overruled. Page 15, lines 10-18 Sustained. Page 15, lines 19-25 Sustained. Page 16, lines 1-10 Sustained. Page 16, lines 11-25 Overruled. Page 17 Overruled. Page 18 Overruled. Page 19 Overruled. Page 20 Overruled. Page 21, lines 1-14 Overruled. Page 21, lines 15-21 Sustained. Page 21, lines 22-25 Overruled. Page 23 Overruled. Page 24 Overruled. Page 25, lines 1-15 Overruled. Page 25, lines 16-25 Sustained.

Page 26 Sustained.

VICKI FREDERICKSON

Page(s) and line(s) Ruling Page 7, lines 1-6 Overruled. Page 7, lines 7-14 Sustained. Page 7, lines 15-25 Overruled. Page 43 Overruled. Page 44 Overruled. Page 45 Overruled. Page 46, lines 1-4 Overruled. Page 46, lines 5-10 Sustained. Page 46, lines 11-25 Overruled. Page 61, lines 14-25 Overruled. Page 62, lines 1-13 Overruled.

SHERRI ISELY

Page(s) and line(s) Ruling Page 5, lines 1-5 Sustained. Page 6, lines 1-23 Overruled. Page 9, lines 4-25 Overruled. Page 10, line 1 to Overruled. page 11, line 13 Page 11, line 14 to Overruled. page 12, line 6 Page 12, line 7 to Overruled. page 14, line 10 Page 14, lines 11-25 Overruled. Page 15 Overruled. Page 16 Overruled. Page 17 Overruled. Page 18 Overruled. Page 19 Overruled. Page 20 Overruled. Page 21, lines 1-4 Overruled. Page 21, lines 5-12 Sustained. Page 22, lines 1-17 Sustained.

LORI McCABE

Page(s) and line(s) Ruling Page 5, lines 1-11 Sustained. Page 9, lines 5-24 Overruled. Page 11, line 15 to Sustained. page 12, line 1 Page 14, line 10 to Overruled. page 15, line 3 Page 16, lines 8-16 Sustained. Page 18, lines 17-25 Sustained. Page 22, line 17 to Overruled. page 23, line 18 Page 23, line 24 to Sustained. page 24, line 5 Page 24, lines 6-10 Overruled. Page 26, line 14 to Overruled. page 27, line 1 Page 27, lines 2-9 Overruled. Page 27, lines 10-12 Overruled. Page 27, lines 13-19 Sustained. Page 28, lines 4-13 Overruled.

DALE STATZ--10/3/2007

Page(s) and line(s) Ruling Page 5, lines 13-17 Sustained. Page 5, line 21 Sustained. Page 6, lines 5-13 Overruled. Page 9, lines 10-23 Overruled. Page 9, line 24 to Sustained. page 10, line 12 Page 11, line 21 to Overruled. page 12, line 4 Page 14, line 5 to Overruled. page 16, line 18 Page 16, line 19 to Sustained. page 17, line 6 Page 17, line 7 to Overruled. page 19, line 7 Page 35, line 22 to Overruled. page 36, line 20 Page 41, line 22 to Overruled. page 42, line 4 Page 43, lines 1-3 Sustained. Page 57, line 11 to Sustained. page 58, line 7 Page 66, lines 4-12 Overruled.

Page 66, line 13 to Overruled. page 67, line 1 Page 67, lines 4-13 Overruled. Page 67, line 18 to Sustained. page 68, line 3 Page 68, lines 4-13 Overruled. Page 68, line 14 to Overruled. page 71, line 9 Page 71, lines 10-14 Sustained. Page 71, line 15 to Overruled. page 72, line 23 Page 114, line 6 to Overruled. page 115, line 18 Page 116, line 20 to Overruled. page 117, line 15 Page 120, lines 2-21 Overruled.

DALE STATZ--11/20/2008

Page(s) and line(s) Ruling Page 5, line 5 to Overruled. page 6, line 17 Pages 19-55 General objections. All overruled.

Page 21, line 1 to Sustained. page 22, line 7 Page 22, lines 8-25 Overruled.

Page 23, line 18 to Overruled. page 24, line 6 Page 24, lines 7-16 Sustained.

Page 24, line 17 to Overruled. page 24, line 23 Page 24, line 24 to Sustained. page 25, line 5 Page 25, lines 6-16 Overruled. Page 25, line 17 to Sustained. page 26, line 3 Page 26, lines 4-22 Overruled. Page 27, line 23 to Overruled. page 28, line 25 Page 29, lines 17-22 Overruled. Page 29, line 23 to Overruled. page 30, line 25 Page 31, lines 15-25 Overruled. Page 32, lines 19-25 Overruled. Page 33, line 18 to Sustained. page 34, line 25 Page 35, lines 1-23 Sustained. Page 35, line 24 to Sustained. page 36, line 6 Page 36, lines 7 to 22 Overruled. Page 38, lines 2-14 Overruled. Page 45, line 3 to Overruled. page 46, line 19 Page 45, lines 19-23 Sustained. Page 45, line 24 to Overruled. page 46, line 10 Page 46, lines 11-25 Sustained. Page 47, lines 1-12 Sustained.

Page 54, lines 4-14 Sustained.

Pages 79 to 85 General objections all overruled.

Page 79, lines 12-23 Sustained.

Page 79, line 24 to Overruled. page 80, line 7 Page 80, lines 8-16 Sustained.

Page 80, lines 17-25 Overruled.

Page 81, line 16 to Overruled. page 82, line 6 Page 83, line 14 to Overruled. page 84, line 1 Page 85, lines 8-14 Overruled.

Page 91, line 20 to Sustained. page 92, line 5 Page 92, lines 6-24 Sustained.

Page 93, lines 8-14 Sustained.

Page 93, lines 15-25 Overruled.

Page 94, lines 1-25 Overruled.

Page 95, line 3 to Overruled. page 96, line 3 Pages 97 to 151 General objections all overruled.

Page 97, line 13 to Overruled. page 98, line 8 Page 98, lines 14-19 Overruled.

Page 99, lines 11-24 Overruled.

Page 100, lines 1-13 Overruled.

Page 100, line 14 to Overruled. page 101, line 16 Page 101, line 17 to Sustained. page 101, line 24 Page 101, line 25 to Overruled. page 102, line 25 Page 103, line 1 to Overruled. page 103, line 25 Page 104, lines 9-18 Sustained.

Page 105, lines 5-12 Sustained.

Page 108, lines 20-24 Overruled.

Page 111, lines 7-15 Overruled.

Page 112, line 16 to Sustained. page 113, line 23 Page 114 to page 120, Sustained. line 24 Page 122, lines 6-11 Overruled.

Page 122, line 21 to Sustained. page 127, line 25 Pages 128-135 Sustained. Insufficient showing under Rule 404(b). Page 138, lines 3-19 Overruled.

Page 139, lines 14-22 Overruled.

Page 140, lines 20-23 Overruled.

Pages 141 to 144, line 6 Overruled.

Page 145, lines 1-25 Overruled.

Page 146, lines 1-11 Overruled.

Page 146, line 12 to Sustained. page 147, line 2

Page 147, line 3 to Overruled. page 148, line 11 Page 148, lines 12-18 Sustained. Page 148, lines 19-25 Overruled. Page 149, lines 1-15 Sustained. Page 149, line 16 to Overruled. page 151, line 5

NANCY BRUNNEL

Page(s) and line(s) Ruling Page 8 Overruled. Page 10, line 25 to Overruled. page 13, line 6 Page 18, line 19 to Overruled. page 22, line 24 Page 20, lines 7-20 Sustained. Page 32, line 6 to Overruled. page 34, line 21

20090521

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