Gary Kurtz; Starr Taxman v. Allstate Insurance Company

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Eugene E. Siler, Jr., Senior United States Circuit**
Judge for the Sixth Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY KURTZ; STARR TAXMAN,
Plaintiffs - Appellants,
v.
ALLSTATE INSURANCE COMPANY,
Defendant - Appellee.
No. 08-55781
D.C. No. 2:07-cv-03369-MMM-
FMO
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted November 2, 2009
Pasadena, California
Before: SCHROEDER, SILER, and IKUTA, Circuit Judges.**
The district court erred in ruling that the spreadsheets included in the Kurtz
declaration were inadmissible under Rule 1006 of the Federal Rules of Evidence.
The spreadsheets did not seek to prove the “contents” of underlying receipts but
FILED
JAN 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

rather to establish the fact of damages; therefore, Rule 1002, to which Rule 1006
operates as an exception, was not applicable. See United States v. Bennett, 363
F.3d 947, 953 (9th Cir. 2004) (citing Fed. R. Evid. 1002 Advisory Committee’s
note); see also United States v. Gonzales-Benitez, 537 F.2d 1051, 1053–54 (9th
Cir. 1976). Furthermore, because Kurtz had first-hand knowledge of the
expenditures and actions to which he testified, his declaration was sufficient to
demonstrate such expenditures and the submission of claims to Allstate for
purposes of summary judgment, even though his declaration was uncorroborated.
United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999). In addition,
the district court erred in determining that the parties’ statement of undisputed facts
constituted an admission that they had resolved all claims relating to personal
property losses associated with the water damage. Taking the facts in the light
most favorable to Kurtz, the statement of undisputed facts indicated that most but
not all such claims had been resolved. Because the spreadsheets and Kurtz
declaration were admissible, and the personal property losses had not been fully
resolved, Kurtz created a genuine issue of material fact with respect to damage
caused by submitted and unpaid claims related to structural repairs, personal
property loss, and additional living expenses.
The district court also erred in determining that Kurtz had failed to create a
genuine issue of material fact with respect to Allstate’s failure to fulfill its

-- 2 of 3 --

contractual obligations relating to damage allegedly caused by IRSCO. Viewing
the evidence in the light most favorable to Kurtz, Allstate hired IRSCO as an agent
pursuant to the insurance policy’s “right of repair” provision. Under these
circumstances, IRSCO’s negligence in connection with the fire-related structural
repairs and personal property loss may constitute a breach of the insurance
agreement, and Allstate may be held liable for such a breach.
Finally, the district court based its conclusion that Kurtz had failed to create
a genuine issue of material fact with respect to Allstate’s alleged breach of the
covenant of good faith and fair dealing on its erroneous holding that there was no
material evidence that a breach of the insurance contract had occurred. The grant
of summary judgment on these claims was thus also erroneous.
REVERSED AND REMANDED.

-- 3 of 3 --