IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NATIONWIDE MUTUAL 

INSURANCE COMPANY,

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Plaintiff,

vs. CIVIL ACTION NO. 14-110-CG-M

NALL’S NEWTON TIRE a/k/a 

NALL’S NEWTON TIRE 

SERVICE, INC.,

Defendant.

ORDER

This matter is before the court on the motion of Nationwide Mutual 

Insurance Company (“Nationwide”) to strike (Doc. 68), opposition thereto filed by 

Nall’s Newton Tire (“NNT”) (Doc. 69), and Nationwide’s reply (Doc. 70). For the 

reasons stated below, the court finds that Nationwide’s motion to strike should be 

granted in part and denied in part.

BACKGROUND

This case arises from insurance claims made for damage resulting from a fire 

that occurred at NNT’s premises on December 18, 2012. Nationwide asserts in its 

complaint that no coverage exists for NNT’s claims under their policy of insurance. 

(Doc. 1). NNT’s answer to the complaint asserts counterclaims for breach of 

contract and bad faith refusal to pay. (Doc. 9). Nationwide moved for summary 

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judgment as to both its declaratory judgment complaint and NNT’s counterclaims. 

(Doc. 50). Nationwide asserts that the fire was the result of arson, that NNT had a 

motive for burning the building and that the evidence implicates NNT in the setting 

of the fire. (Doc. 52). As such, Nationwide contends fire coverage is excluded by the 

policy of insurance and that NNT’s submission of the claim for the fire loss amounts 

to a misrepresentation that voids the policy. (Doc. 52). NNT contends that there is 

evidence to show that Nationwide intentionally or recklessly failed to properly 

investigate the plaintiff’s claim or intentionally or recklessly failed to properly 

subject the claim to a cognitive evaluation or review. (Doc. 63, pp. 10-16). NNT also 

argues that even if Nationwide has presented a prima facie case of arson, 

Nationwide has not shown that it is entitled to summary judgment on the breach of 

contract claim. (Doc. 63, pp. 16-19). Additionally, NNT contends that its 

representations were not intended to deceive. (Doc. 63, pp. 19-20). 

Upon receiving NNT’s opposition to summary judgment, Nationwide filed the 

current motion to strike numerous items of evidence filed in support of NNT’s 

opposition. (Doc. 68). 

DISCUSSION

Nationwide seeks to strike the following items of evidence offered by NNT in 

opposition to summary judgment: 1) affidavit of Freddie Webb, 2) affidavit and 

supplemental affidavit of James Jones, 3) expert reports of Brian Cash and A.K. 

Rosenhan, 4) Rosenhan’s picture showing bank site line, 5) Cash’s diagram of bank 

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site, 6) videotape and transcript of police interview of John Nall, 7) affidavit of Andy 

Renner, 8) excerpts from John Nall’s EUO, 9) excerpts from Art Ramos’ deposition, 

and 10) excerpts from A.K. Rosenhan’s deposition.

1. Affidavit of Freddie Webb (Doc. 62-1)

Nationwide contends that Webb’s affidavit should be stricken because it 

contains inadmissible hearsay and is not based on personal knowledge. Specifically, 

Nationwide objects to Webb’s statement that he “was aware that [John Nall] was 

working on a project for Cemex along with working on his son’s motorcycle” and 

that when Webb left, Mr. Nall “went back to work.” Webb’s affidavit states that it 

is based on his personal knowledge, but does not offer specific facts to indicate how 

Webb was aware of what John Nall was working on. Webb does not state that Nall 

worked during Webb’s visit or otherwise indicate that he witnessed what Nall was 

working on. In fact the affidavit states that Mr. Nall had a beer in his hand when 

he got there and that Mr. Nall went back to work when he left. Such statements 

imply that Mr. Nall did not work on the reported projects during Webb’s visit. If 

Webb became aware of the specific projects Nall was working on because of 

something Webb was told, such evidence would be hearsay as the only purpose for 

which it is being offered in this case is for the truth of the matter asserted. The 

Court therefore finds that the averment that he was aware of the projects Nall was 

working on fail to meet the requirements of Rule 56(c)(4) and should be stricken. 

See Ward v. First Federal Savings Bank, 173 F.3d 611, 617-18 (7th Cir. 1999) (“The 

Malkowski affidavit merely asserts that he is ‘aware’ of the alleged instruction by 

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Pavlic; it does not reveal the source of Malkowski's awareness-be it a written 

directive from Pavlic, a conversation with him, or merely water-cooler gossip. As 

such, the affidavit fails to establish that Malkowski has personal knowledge on the 

subject of Pavlic's purported instruction.”); see also 3 Am.Jur.2d Affidavits § 8 (“An 

affidavit must set forth facts and show affirmatively how the affiant obtained 

personal knowledge of those facts.”). However, the Court does not find it necessary 

to strike Webb’s statement that Mr. Nall “went back to work and did not appear to 

be upset or angry” when Webb left. Although Webb does not specifically state that 

he saw Nall start back to work, the circumstances described clearly imply that 

Webb’s knowledge is based on him witnessing Nall’s actions and appearance. 

Accordingly, the Court finds the statement that Nall went back to work should not 

be stricken.

2) Affidavit and Supplemental Affidavit of James Jones (Doc 62-2)

Nationwide objects to Officer Jones’s statement that when Mr. Nall told him 

that he thought the fire started upstairs, “he must have been talking about the area 

near the back.” Nationwide argues that this conflicts with Jones’s earlier official 

report that stated that John Nall told him that the fire started upstairs. 

Nationwide also asserts that because Jones is a lay witness he cannot offer his 

opinion as to what Nall was thinking. The Court does not find that Jones’s report 

and affidavits conflict. In both, Jones states that Nall told him that the fire started 

upstairs. The affidavit simply explains why, based on Jones’ observations of the 

premises when he arrived, the fire could not have started in the upstairs 

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apartment. Jones explains that that he saw the open door to the apartment and 

looked into the back window of the apartment and saw no fire. He then deduced 

that if the fire started upstairs, it must have started in the back, not in the 

apartment. Although the statement is phrased as describing what Nall meant or 

thought, the Court considers it to be simply an explanation of the circumstances 

Jones observed. The Court understands these are merely a witness’s stated 

observations and will consider them in that light. Obviously Officer Jones does not 

have first hand knowledge of what Mr. Nall meant or thought.

The Court also will not consider Jones’s statements as providing expert 

testimony regarding the cause of the fire. As stated above, the Court views his

statements merely to be his observations of what portions appeared to be on fire at 

the time he viewed them. Nationwide attempts to discredit Jones’s observations by 

pointing out his visibility limitations from where he reports he viewed the fire. 

However, the Court finds that Jones’s statements should not be stricken. 

Nationwide’s arguments or questions regarding what Jones was capable of seeing 

are more appropriately raised at cross-examination. Where facts are in dispute, the 

Court will not engage in a detailed factual determination at the summary judgment 

stage.

Nationwide also objects to Jones’s averment that he knows that “the office 

desk was not on fire” because he does not state how he knew. However, Jones 

states that he walked around the building and looked into the first story window 

and observed where the fire was. Jones had personal knowledge of where the fire 

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was in the building and conversely where it was not. His statements have not been 

shown to be contradictory and are consistent with his stated observations. They are 

not due to be stricken.

3) Expert Reports of Brian Cash & A.K. Rosenhan (Docs. 62-3, 62-13)

Nationwide, citing Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721 ((6th

Cir. 1994), contends that NNT cannot offer expert reports in opposition to summary 

judgment because they do not constitute “testimony” by an expert witness, but 

instead consist of opinions contained in documents prepared out of court. However, 

this Court reads the cited statements in Engebretsen to hold that, at trial, 

inadmissible facts or data on which an expert relies are not admissible except to 

explain the basis of the expert’s opinion and cannot be admitted for the truth of the 

mater asserted. Expert reports are commonly offered at the summary judgment 

stage and have been found to be appropriate evidence for a court to consider. See

e.g. Johnson v. State Farm Fire & Cas. Co., 2013 WL 4607548, at *6 (S.D. Ala. Aug. 

29, 2013), appeal dismissed (Nov. 15, 2013) (“Therefore, because, one (as stated 

above), the Johnsons already have had the opportunity to “cross-examine” 

Wehrman as to his report and, two, to the extent his report constitutes hearsay, 

Wehrman could testify to (and has already been deposed regarding) all relevant 

portions of his report from personal knowledge or, alternatively, use that report to 

refresh his recollection, the Court can rely fully on the substance of Wehrman's 

expert report in ruling on the pending motion for summary judgment.” (citations 

omitted)). At summary judgment, a district court may consider inadmissible 

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evidence “if the statement could be reduced to admissible evidence at trial or 

reduced to admissible form. Id. (citations omitted). Rule 56 allows a party to object 

to material that “cannot be presented in a form that would be admissible in 

evidence.” FED. R. CIV. P. 56(c)(2) (emphasis added). It does not require that they 

be presented in admissible form at the summary judgment stage.

4) Rosenhan’s Picture Showing Bank Site Line (Doc. 62-4)

Nationwide objects to the court’s consideration of the picture on the basis 

that it has not been authenticated. However, as stated above, at summary 

judgment, a district court may consider inadmissible evidence if the statement could 

be reduced to admissible evidence at trial or reduced to admissible form. Id.; see

also Zukowski v. Foss Maritime Co., 2013 WL 1966001, *4 (S.D. Ala. May 10, 2013) 

(“However, even in the face of an objection to reliance upon nonauthenticated 

records, there is authority to indicate that, at the summary judgment stage, the 

court may rely upon non-authenticated records where it finds that those records 

could be reduced to admissible evidence at trial.” (citing Pritchard v. Southern Co. 

Serv., 92 F.3d 1130, 1135 (11th Cir.1996); McMillian v. Johnson, 88 F.3d 1573, 1584 

(11th Cir.1996), aff'd, 520 U.S. 781 (1997); and Coker v. Tampa Port Authority, 962 

F.Supp. 1462, 1467 (M.D. Fla.1997)).

Moreover, the photograph was reportedly attached as an exhibit to 

Rosenhan’s deposition and as part of his expert disclosure. NNT reports that it is 

offered as the basis of Rosenhan’s opinion. Accordingly, the Court finds that the 

picture should not be stricken.

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5) Cash’s Diagram of Bank Site (Doc. 62-5)

Nationwide objects to NNT’s submission of the diagram of Nationwide’s 

expert on the basis that it is not authenticated. However, NNT asserts that it was 

produced by Cash at his deposition and shows Cash’s knowledge at the time of his 

deposition. As such it is not offered for its accuracy, but to discredit the basis of 

Cash’s opinion. The Court finds that the picture could be reduced to admissible 

evidence at trial and should not be stricken at the summary judgment stage.

6) Videotape and Transcript of Police Interview (Doc. 62-8)

Nationwide seeks to exclude the videotape and transcript of the police 

interview of John Nall because it contains unsworn testimony and the transcript 

has not been authenticated. However, the videotape was reportedly relied upon by 

Nationwide’s expert, Cash, as the basis for his opinion. The videotape is not offered 

for the truth of the statements contained in the video but for the purpose of showing 

the basis, or lack there of, for Cash’s opinion. As to the transcript’s authenticity, 

the Court finds that the transcript could be reduced to admissible evidence at trial 

and should not be stricken at the summary judgment stage.

7) Affidavit of Andy Renner (Doc. 62-9)

Nationwide asserts that Renner’s affidavit consists of pure speculation and 

contains inadmissible character evidence. Mr. Renner states that beginning in 2008 

he was hired by NNT and John Nall to try to recover bad debts owed to NNT. In 

the course of his work he reviewed some of Mr. Nall’s business practices and went 

onsite to the business. He reports that Mr. Nall needed help with the basic 

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bookkeeping and other areas of his business and they entered into a management 

agreement. Mr. Renner offers some details of the state of NNT’s finances and the 

actions that were taken and business practices that were changed in an effort to 

manage NNT’s finances. Renner reports that a review of NNT’s tax records from 

2009-2012 show a steady improvement. Renner also reports that on the day of the 

fire Mr. Nall was working on a job for Cemex and that he was working late to try 

and make money to pay for his children’s Christmas. In the last paragraph of his 

affidavit Renner avers that based on his knowledge of the business and Mr. Nall’s 

work ethic, he “saw” Mr. Nall working through the challenges. Renner states that 

NNT was coming out of a bad situation when the fire occurred. Specifically, Renner 

states the following:

We had made arrangements and were catching up the sales taxes and 

scrap tire penalties. We were in the position of filing Nall’s Newton 

Tire’s taxes and then would be in a position for John Nall to file 

personal income taxes. I fully expected Nall’s Newton Tire to recover 

completely and to become a profitable business. It was headed in the 

right direction.

(Doc. 62-9, p. 4).

The Court finds that most of the statements in Renner’s affidavit are factual 

statements about things of which Mr. Renner has personal knowledge. Mr. Renner 

explains his involvement with NNT and that he had personal knowledge of NNT’s 

finances because of his work with NNT and John Nall over the years. His 

knowledge of NNT’s finances was not acquired for the current litigation but is based 

on his familiarity with NNT’s records and business practices during the years that 

he worked with John Nall.

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Nationwide objects to the fact that Renner refers to a management 

agreement without attaching a copy of the agreement to his affidavit. Nationwide 

cites Rule 56(e), stating that it requires that “sworn or certified copies of all papers 

or parts thereof referred to in an affidavit shall be attached thereto or served 

therewith.” However, this requirement was omitted in the 2010 amendments to 

Rule 56. Rule 56(c)(4) requires only that affidavits be made on personal knowledge, 

set out facts that would be admissible in evidence, and show that the affiant or 

declarant is competent to testify on the matters stated.” FED. R. CIV. P. 56(c)(4).

Moreover, the management agreement is only mentioned to explain the general 

nature of Renner’s involvement with NNT and the terms of the management 

agreement are not at issue. 

Nationwide also objects to statements that Renner discovered that an 

employee that had acted as NNT’s bookkeeper had written thousands of dollars in 

checks to pay personal bills and that Mr. Nall told him that a prior bookkeeper had 

also taken money from NNT. The Court agrees that what Mr. Nall told him 

regarding the prior bookkeeper should be stricken as hearsay to the extent it is 

offered for the truth of the matter asserted. However, the statements regarding 

Renner’s discovery of personal payments by the other bookkeeper are based on 

Renner’s personal knowledge.

Nationwide objects to Renner’s statements regarding the day of the fire that

Mr. Nall was working on a job for Cemex and that he was working late to try and 

make money to pay for his children’s Christmas. Renner does not explain how he 

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would have personal knowledge of these facts. As with similar averments made by 

Webb discussed above, Renner’s explanation of his involvement with NNT and John 

Nall do not explain how Renner would have personal knowledge of what Nall was 

working on or how late Nall was working on the day of the fire. If Renner became 

aware of these reported facts because of something he was told, such evidence would 

be hearsay as the only purpose for which it is being offered in this case is for the 

truth of the matter asserted. The Court therefore finds that Renner’s statement 

regarding what Nall was doing the day of the fire should be stricken. 

Nationwide objects to the last paragraph of Renner’s affidavit on the basis 

that it constitutes of character evidence. The Court disagrees. The last paragraph 

includes specific examples of how NNT and John Nall’s financials were on track at 

the time of the fire. While Renner states how he generally “expected” NNT to do in 

the future, the statement is not simply speculation. Mr. Renner has worked with 

John Nall and NNT since 2008 and avers that NNT’s financial circumstances had 

improved and were heading in the right direction. He does not state that NNT 

would have succeeded, but that based on the financials and work history, of which 

he has personal knowledge, he expected NNT to become profitable.

8) Excerpts from John Nall’s EUO (Doc. 62-10)

Nationwide objects to the use of statements in Mr. Nall’s EUO wherein Nall 

responded to questions about what he thought caused the fire, based on his 

observations. Mr. Nall expressly states that he is merely speculating. The Court 

agrees that such statements cannot be used to prove what caused the fire. 

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However, the statements can be used to explain Mr. Nall’s observations and 

understanding of the circumstances and events that occurred. The statements show 

that Mr. Nall did not admit to intentionally setting the fire.

9) Excerpts from Art Ramos’ Deposition (Doc. 62-11)

Nationwide objects on the basis of hearsay to statements by Mr. Ramos that 

the Fire Marshal told him that he found three hot spots. However, the statements 

are not being offered for the truth of the matter asserted. The statements are not 

being offered to show the actual origin or cause of the fire, but as evidence that the 

Fire Marshal did not tell Nationwide’s expert, Cash, that there was a hot spot in the 

upstairs apartment. While it is not clear that the cited testimony is evidence of 

what Cash was told, the Court finds the statements should not be excluded on the 

basis of hearsay.

10) Excerpts from A.K. Rosenhan’s Deposition (62-12)

Nationwide objects to NNT’s submission of only one page of the deposition 

testimony of A.K. Rosenhan because it offers only Rosenhan’s conclusion that in his 

opinion the fire was accidental and began in the general area shown in the diagram 

on Plaintiff’s Exhibit 4. Nationwide asserts that an expert must base his opinion 

upon sufficient facts or data in the record and that the one page deposition 

testimony fails to provide the requisite support. However, NNT has also offered 

Rosenhan’s expert report, which includes the basis of his opinion. Additionally, 

Nationwide was free to cross-examine Rosenhan about the basis of his opinions at 

his deposition and to submit additional portions of Rosenhan’s deposition for the 

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Court’s consideration. Nationwide has not shown here that Rosenhan’s opinion was 

not sufficiently supported. 

CONCLUSION

For the reasons stated above, the motion of Nationwide Mutual Insurance 

Company to strike (Doc. 68), is GRANTED in part, as follows:

1) The Court hereby STRIKES the following portion of the affidavit of 

Freddie Webb: 

I was aware that that he was working on a project for Cemex 

along with working on his son’s motorcycle... (Doc. 62-1).

2) The Court hereby STRIKES the following portions of the affidavit of 

Andy Renner (Doc. 62-9):

Mr. Nall reported to me that Sharon Day had also taken money 

from Nall’s Newton Tire. (Doc. 62-9, p. 2).

I am aware that on the day of the fire Mr. Nall was working on a 

specific job for Cemex. It was near Christmas and he was 

working extra and late to try and make money to pay for his 

children’s Christmas. (Doc. 62-9, p. 4).

In all other respects, Nationwide’s motion to strike is DENIED.

DONE and ORDERED this 11th day of August, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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