It is just so totally straight-forward that the Rules of Procedure and of Evidence require that Affidavits be made on personal knowledge. Without personal knowledge, an Affidavit is not worth the internet link used to upload it to the Electronic Court File.
Recently, a Federal Court provided practitioners with a reminder of this. In that Federal Case, a Plaintiff who represented herself in a lawsuit against Liberty Mutual Group defeated the Defendant's Motion for Summary Judgment for exactly this reason. Ms. Martha Akers was issued a Homeowner's Insurance Policy by Liberty. Her property suffered a fire loss. She made a claim under the Homeowner's Policy. Liberty denied her claim.
In its Denial Letter, Liberty told Ms. Akers that she had failed to comply with two Conditions in her Insurance Contract. Liberty wrote that (1) Ms. Akers had failed to fulfill her duties after loss and (2) she affirmatively engaged "'in concealment, fraud, material misrepresentation, false statements, and non-cooperation' thereby rendering the policy void." Akers v. Liberty Mutual Group, Download Akers v. Liberty Mutual Group (D.D.C. Case No. 08.1525, Memorandum Opinion Filed September 28, 2010) PUBLIC ACCESS, also published as 2010 WL 3832051 *1 (D.D.C. September 28, 2010)(authorized password required to access Westlaw).
Ms. Akers filed a Lawsuit against Liberty alleging "breach of contract and demanding specific performance." Akers v. Liberty Mutual Group, 2010 WL 3832051 at *1. Liberty filed a Motion for Summary Judgment. In support of its motion, Liberty filed an Affidavit of one Gould, who worked in Liberty's "SIU" or Special Investigative Unit. Id. at *2.
In her Affidavit, Gould attempted to testify to what other people told her about Akers and Akers' claim. Liberty suggested to the Federal Court that Gould's testimony was based upon her own personal knowledge, as it was required to be. The Federal Judge did not agree.
"Gould's affidavit is replete with statements made by and information learned from third parties other than Gould.... The court presumes, as the defendant has not argued otherwise, that these statements are being offered by the defendant for their truth.... The defendant does not argue that these hearsay statements would be otherwise admissible because they fall under a hearsay exception." Accordingly, the Federal Court ruled that the statements of and information obtained by Gould from third persons, all related by Gould in her Affidavit, "cannot be considered for their truth." Id. at *4.
There being no record evidence tending to display that there were no genuine issues of material fact surrounding the Plaintiff's allegations in the Lawsuit, Liberty's Motion for Summary Judgment was, summarily, denied (but without prejudice to properly support the Motion). Id. at *5.
Please Read The Disclaimer.
Comments