Opinion
Civil Action No. 18-30014-MGM
09-30-2019
PROGRESSIVE DIRECT INSURANCE COMPANY, Plaintiff, v. Shalee MARTIN, individually; R.R., a minor by her mother and guardian, Shalee Martin; Constance Brown, as the Personal Representative of the Estate of Daron Reynolds; Anthony Serrano; and Jessica Hernandez, Defendants.
Michael S. Melville, David F. Hassett, Hassett & Donnelly, P.C., Worcester, MA, for Plaintiff. John P. DiBartolo, Jr., Law Offices of John P. DiBartolo, Jr., Easthampton, MA, Robert A. Monteleone, Jr., Campoli, Monteleone & Mozian, P.C., Pittsfield, MA, for Defendants.
Michael S. Melville, David F. Hassett, Hassett & Donnelly, P.C., Worcester, MA, for Plaintiff.
John P. DiBartolo, Jr., Law Offices of John P. DiBartolo, Jr., Easthampton, MA, Robert A. Monteleone, Jr., Campoli, Monteleone & Mozian, P.C., Pittsfield, MA, for Defendants.
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE
(Dkt. Nos. 37 and 40)
MASTROIANNI, U.S.D.J.
I. INTRODUCTION
This matter arises out of a tragic car accident in which the insured, Daron Reynolds, was killed. Progressive Direct Insurance Company ("Plaintiff") brought this Declaratory Judgment action seeking a declaration that Mr. Reynolds made material misrepresentations on his insurance application, entitling Plaintiff to refuse to pay any claims made under the Optional Insurance Parts of the subject policy. Defendants are Shalee Martin, the driver of the vehicle in which Mr. Reynolds rode and the mother of Mr. Reynolds' and Ms. Martin's daughter; R.R., the minor daughter of Mr. Reynolds and Ms. Martin, and also a passenger in the vehicle; Constance Brown, the Personal Representative of the Estate of Daron Reynolds; Anthony Serrano, the driver of the other vehicle involved in the accident; and Jessica Hernandez, the owner of the other vehicle. Presently before the court are Plaintiff's motion for summary judgment and motion to strike. (Dkt. Nos. 37, 40.) For the following reasons, the court will grant both of Plaintiff's motions.
Mr. Serrano and Ms. Hernandez have not appeared in this action and have been defaulted. (Dkt. Nos. 28, 29.) Ms. Brown, as the Personal Representative of Mr. Reynolds' Estate, has appeared but did not file an opposition to Plaintiff's motion for summary judgment. Ms. Martin, both on her own behalf and on behalf of her minor daughter R.R., has opposed Plaintiff's motion for summary judgment but did not file a written opposition to the motion to strike. The court will refer to Ms. Martin and R.R. as "Defendants."
II. STANDARD OF REVIEW
"Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Bellone v. Southwick-Tolland Reg'l Sch. Dist. , 748 F.3d 418, 422 (1st Cir. 2014) (quoting Fed. R. Civ. P. 56(a) ). "[A] nonmovant can forestall summary judgment by ‘present[ing] definite, competent evidence’ demonstrating the existence of a genuine dispute about a material fact." Murray v. Kindred Nursing Ctrs. W. LLC , 789 F.3d 20, 25 (1st Cir. 2015) (quoting Mesnick v. Gen. Elec. Co. , 950 F.2d 816, 822 (1st Cir. 1991) ). " ‘A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.’ ... ‘A fact is material if it has the potential of determining the outcome of the litigation.’ " Patco Constr. Co. v. People's United Bank, 684 F.3d 197, 206-07 (1st Cir. 2012) (quoting Rodríguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina , 532 F.3d 28, 30 (1st Cir. 2008) ).
III. BACKGROUND
The following facts are undisputed, except where otherwise noted. Plaintiff issued a Standard Massachusetts Automobile Insurance Policy to Mr. Reynolds for a policy term of April 10, 2017 to October 10, 2017. (Dkt. No. 43 ¶ 1.) This insurance policy was issued pursuant to an online application Mr. Reynolds completed on April 10, 2017. (Id. ¶ 13; Dkt. No. 38-4; Dkt. No. 38-5 at 17.) That application required Mr. Reynolds to provide information about each individual who "customarily operates" the vehicle to be insured—a 2013 Toyota Camry. (Dkt. No. 43 ¶¶ 15-16; Dkt. No. 38-4.) Specifically, under the heading "Drivers and household residents," the application stated:
Furnish information for the applicant and each individual who customarily operates the auto(s) whether or not a household member. Your failure to list a household member or any individual who customarily operates your auto may have very serious consequences. Your total policy premium can be affected by all persons of driving age.
(Dkt. No. 43 ¶ 16; Dkt. No. 38-4.) The only person listed in this section of the application was Mr. Reynolds; Shalee Martin was not listed as a customary driver or household member. (Dkt. No. 43 ¶¶ 17-18; Dkt. No. 38-4.) The application further stated:
NOTICE: If you or someone else on your behalf knowingly gives us false, deceptive, misleading or incomplete information in this application and if such false, deceptive, misleading or incomplete information increases our risk of loss, we may refuse to pay claims under any or all of the Optional Insurance Parts and we may cancel your policy. Such information includes the description and the place of garaging of the vehicle(s) to be insured, the names of all household members and customary operators required to be listed and the answers given above for all listed operators. We may also limit our payments under Part 3 and Part 4.
We will not pay for a collision or limited collision loss for an accident which occurs while your auto is being operated by a household member who is not listed as an operator on your policy. Payment is withheld when the household member, if listed, would require the payment of additional premium on your policy because the household member would be classified as an inexperienced operator or would require payment of additional premium on your policy under our rates.
(Dkt. No. 43 ¶ 19; Dkt. No. 38-4.) In addition, the application contained the following language under the heading "Verification of content":
I declare that the statements contained herein are true to the best of my knowledge and belief and do agree to pay any surcharges applicable under the Company rules which are necessitated by inaccurate statements. I declare that no persons other than those listed in this application regularly operate the vehicle(s) described in this application.... I understand that some coverages under this policy may be rescinded and declared void if this application contains any false information or if any information that would alter the Company's exposure is omitted or misrepresented.
(Dkt. No. 43 ¶ 20; Dkt. No. 38-4.)
Although Defendants attempt to dispute that Mr. Reynolds completed the insurance application and, if he did, that his application included the language set forth above, the court deems these facts undisputed, as explained below.
The insurance policy itself contained similar language warning about the failure to include household members and customary drivers under the policy. Specifically, the policy stated, under the heading "False Information":
If you or someone on your behalf gives us false, deceptive, misleading or incomplete information in any application or policy change request and if such false, deceptive, misleading or incomplete information increases our risk of loss, we may refuse to pay claims under any or all of the Optional Insurance Parts of this policy. Such information includes the description and the place of garaging of the vehicles to be insured, the names of all household members and customary operators required to be listed and the answers given for all listed operators.
(Dkt. No. 43 ¶ 2; Dkt. No. 38-1.) The next section of the policy states, under the heading "Changes Which Affect Premium":
If information contained in your application changes before this policy expires, we have the right to adjust your premium to reflect such changes. You must inform us of any changes which may have a material effect on your insurance coverage or premium charges, including the description, ownership, type of usage and place of garaging of your auto and the household members and individuals who customarily operate your auto.
(Id. )
The Coverage Selections Page of the policy lists the 2013 Toyota Camry as the automobile covered, and it lists Mr. Reynolds as the only driver covered. (Dkt. No. 43 ¶¶ 8-9; Dkt. No. 38-2.) Under the heading "Driver Information," the Coverage Selections Page states, after listing Mr. Reynolds as the only driver: "Check carefully that all operators of your auto(s) are shown. Your failure to list a household member or any individual who customarily operates your auto may have very serious consequences." (Dkt. No. 43 ¶ 10; Dkt. No. 38-2.) Immediately following that language, the Coverage Selections Pages states:
NOTICE: If you or someone else on your behalf has knowingly given us false, deceptive, misleading or incomplete information and if such false, deceptive, misleading or incomplete information increases our risk of loss, we may refuse to pay claims under any or all of the Optional Insurance Parts and we may cancel your policy. Such information includes the description and the place of garaging of the vehicle(s) to be insured, the names of all household members and customary operators required to be listed and the answers given above for all listed operators. We may also limit our payments under Part 3 and Part 4. Check to make certain that you have correctly listed all operators and the completeness of their previous driving records. We may verify the accuracy of the previous driving records of all listed operators.
We will not pay for a collision or limited collision loss for an accident which occurs while your auto is being operated by a household member who is not listed as an operator on your policy. Payment is withheld when the household member, if listed, would required the payment of additional premium on your policy because the household member would be classified as an inexperienced operator or would require payment of additional premium on your policy under our rates.
(Dkt. No. 43 ¶ 11; Dkt. No. 38-2.) The Coverage Selections Page was mailed to Mr. Reynolds at his Cheshire, Massachusetts address on April 14, 2017. (Dkt. No. 41-1 ¶ 22.)
Mr. Reynolds, Ms. Martin, and R.R. lived together in Cheshire from approximately October of 2016 until the date of the accident, on April 24, 2017. (Dkt. No. 43 ¶ 31.) They had only one vehicle, the 2013 Toyota Camry listed in the policy. (Id. ¶ 35.) Both Mr. Reynolds and Ms. Martin drove the Toyota Camry as a "family vehicle." (Id. ¶ 37.) In particular, while living in Cheshire, Ms. Martin drove the Toyota Camry five days a week to her job in North Adams, Massachusetts. (Id. ¶ 38.) Ms. Martin also drove the Toyota Camry whenever R.R. had to go to a doctor's appointment. (Id. ¶ 39.) Therefore, as Ms. Martin has admitted, she was a regular user of the Toyota Camry. (Id. ¶ 42.) Moreover, if both Mr. Reynolds and Ms. Martin drove together in the Toyota Camry, sometimes Mr. Reynolds would drive and sometimes Ms. Martin would drive. (Id. ¶ 40.) In fact, on April 24, 2017, Ms. Martin was driving the vehicle when it was in the accident with Mr. Serrano in Windsor, Massachusetts; both Mr. Reynolds and R.R. were passengers. (Id. ¶¶ 43-44.) Mr. Reynolds died as a result of the accident, and both Ms. Martin and R.R. suffered personal injuries. (Id. ¶ 44.)
Prior to the accident, Mr. Reynolds never requested that Plaintiff add Ms. Martin to the policy as an additional driver. (Id. ¶ 22.) If Ms. Martin had been listed as a person who customarily operated the Toyota Camry, the policy's premium would have increased based on Plaintiff's underwriting standards, which considered, among other information, her driving experience. (Id. ¶ 23; Dkt. No. 41-3.)
Notably, Mr. Reynolds previously failed to list Ms. Martin as a "regular or occasional driver" or a household member in a June 10, 2016 insurance application with Esurance Insurance Company, despite the fact that they lived together and both used the Toyota Camry at that time as well. (Dkt. No. 43 ¶¶ 25-28.) Moreover, on July 15, 2016, Esurance sent Mr. Reynolds a notification stating that it discovered Ms. Martin might be a driver needed to be added to the Esurance policy. (Id. ¶ 28.) Despite this notification, Mr. Reynolds opted to complete an Esurance Operator Exclusion Form in which he agreed that Ms. Martin would not drive the Toyota Camry. (Id. ¶ 29.) Although Defendants assert this evidence is irrelevant and cannot be used to establish Mr. Reynolds' intent with regard to the Progressive insurance application, the court finds it supports the inference that Mr. Reynolds was generally familiar with automobile insurance application questions and procedure related to who would drive the car. See Fed. R. Evid. 404(b) (stating that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character is order to show that on a particular occasion the person acted in accordance with the character," but that "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.").
Although Defendants attempt to dispute this fact, the court deems it undisputed as discussed below.
IV. LEGAL FRAMEWORK
Under Massachusetts law, "a material misrepresentation by the applicant may void an insurance policy." Barnstable Cty. Ins. Co. v. Gale , 425 Mass. 126, 680 N.E.2d 42, 44 (1997). In particular, under section 186 of Massachusetts General Laws chapter 175:
This court has subject-matter jurisdiction over this action under 28 U.S.C. § 1332, based on diversity of citizenship. (See Dkt. No. 1 ¶¶ 1-6; Dkt. No. 26 (establishing amount-in-controversy).) Accordingly, as the parties agree, Massachusetts law applies. See Dumont v. Reily Foods Co. , 934 F.3d 35, 44 (1st Cir. 2019).
No oral or written misrepresentation or warranty made in the negotiation of a policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk of loss.
Mass. Gen. Laws ch. 175, § 186 ; see Hanover Ins. Co. v. Leeds , 42 Mass.App.Ct. 54, 674 N.E.2d 1091, 1094 (1997) ("A misrepresentation in an application for insurance will enable the insurer to avoid the policy if the misrepresentation was made with actual intent to deceive, or if it is material."). For purposes of this statute, "a fact is deemed material if it influences the premium." Barnstable Cty. , 680 N.E.2d at 44 ; see id. ("If an insured falsely states a fact that would increase the premium, the misrepresentation is material."). "Thus, an insurer may void a policy even if the policyholder made an ‘innocent misrepresentation of material fact’ if the disclosure of the truth would have affected the insurer's decision in fixing the rate of premium." RLI Ins. Co. v. Santos , 746 F. Supp. 2d 255, 264 (D. Mass. 2010) (quoting Northwestern Mut. Life Ins. Co. v. Iannacchino , 950 F. Supp. 28, 31 (D. Mass. 1997) ); see also Barnstable Cty. , 680 N.E.2d at 44 ("A fact must be regarded as material [if] the knowledge or ignorance of [it] would naturally influence the judgment of the underwriter in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of the premium." (internal quotation marks omitted)).
V. MOTION TO STRIKE
Defendants submitted an affidavit signed by Ms. Martin along with their opposition to the Plaintiff's motion for summary judgment. Plaintiff has moved to strike that exhibit on the grounds that a party may not contradict clear deposition testimony with a subsequent affidavit unless she provides a satisfactory explanation for the change. The court agrees with Plaintiff and will strike the affidavit. At her October 29, 2019 deposition, Ms. Martin was asked: "Do you know who filled out [the Progressive insurance] application?" (Dkt. No. 38-5 at 17.) She responded: "Daron," meaning Daron Reynolds, the insured decedent. (Id. ) However, in her affidavit, signed January 29, 2019 (the day before Defendants filed their opposition brief), Ms. Martin asserts: "I do not know whether Daron Reynolds completed the application at issue in this lawsuit." (Dkt. No. 39-2 ¶ 4.) She further explained that her contrary response at her deposition "was transcribed with a period rather than a question mark which did not reflect the inflection in my voice." (Id. ¶ 3.)
The First Circuit has "repeatedly held that a party opposing summary judgment may not manufacture a dispute of fact by contradicting his earlier sworn testimony without a satisfactory explanation of why the testimony is changed." Abreu-Guzman v. Ford , 241 F.3d 69, 74 (1st Cir. 2001) ; see Colantuoni v. Alfred Calcagni & Sons, Inc. , 44 F.3d 1, 4-5 (1st Cir. 1994) ; see also Hanover Ins. Co. , 674 N.E.2d at 1095. The court finds Ms. Martin has not provided a satisfactory explanation for her change in testimony.
As Plaintiff points out, Ms. Martin was instructed at the beginning of her deposition not to speculate or guess in her answers but, instead, to state "I don't know" if she did not know the answer to a question. (Dkt. No. 38-2 at 4.) Moreover, as was true in Colantuoni , Ms. Martin's "attorney was present at the deposition, and had the opportunity to clarify any incorrect impressions." Colantuoni , 44 F.3d at 5. "[T]he timing of the [affidavit]—signed one day before [Defendants'] opposition to [Plaintiff's] motion for summary judgment was filed," Escribano-Reyes v. Prof'l Hepa Certificate Corp. , 817 F.3d 380, 387 (1st Cir. 2016) —also suggests that it "was made solely to create an issue of fact for the purpose of surviving summary judgment," Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc. , 447 F.3d 105, 110 (1st Cir. 2006). See also Colantuoni , 44 F.3d at 5 ("Moreover, we think it significant that the affidavit was offered only after defendants had filed motions for summary judgment."). Given these circumstances—along with an inadequate explanation for the discrepancy in testimony—the court will disregard Ms. Martin's affidavit.
Ms. Martin stipulated that she waived reading and signing the transcript of the deposition. (Id. at 3.)
As explained in footnote 10, infra , the outcome in this case would not change even if the court refused to strike Ms. Martin's affidavit, because Defendants cannot recover under the policy in the absence of Mr. Reynolds' assent to create the contract.
VI. MOTION FOR SUMMARY JUDGMENT
Plaintiff seeks summary judgment on the grounds that Mr. Reynolds misrepresented on the insurance application that Ms. Martin would not customarily operate the vehicle when, in fact, she was a customary operator. This misrepresentation, Plaintiff argues, was material because it increased the risk of loss, in that if Ms. Martin was listed as a customary driver, the insurance premium would have been higher. Therefore, Plaintiff asserts it may void the policy (as to the Optional Insurance Parts coverage) in accordance with the policy provisions and Massachusetts law.
Defendants assert there are disputes of material fact which preclude summary judgment. Specifically, Defendants question whether the application Plaintiff purports Mr. Reynolds signed was actually signed by him. In support, Defendants point to a screen-shot of Progressive's online application which allegedly differs from the exhibit offered by Plaintiff. Defendants also seek to dispute Plaintiff's assertion that the misrepresentation was material by arguing Plaintiff has not provided sufficient information as to why the premium would have been higher if Ms. Martin had been added.
In addition, Defendants also rely on Ms. Martin's affidavit, in which she asserted that she does not know whether Mr. Reynolds completed the application. As discussed above, the court has stricken Ms. Martin's affidavit and therefore will not consider it. Defendants additionally question whether Mr. Reynolds ever received the Coverage Selections Page of the policy prior to the accident. Plaintiff, however, has presented evidence demonstrating that the Coverage Selections Page was mailed to Mr. Reynolds on April 14, 2017. (Dkt. No. 41-1 ¶ 22.) Because Defendants have not provided any evidence supporting the assertion that Mr. Reynolds did not receive the mailing or controverting Plaintiff's evidence of the mailing, and because the accident did not occur until April 24, 2017, the court deems it undisputed that Mr. Reynolds received the Coverage Selections Page prior to his accident. See Fed. R. Civ. P. 56(c)(1), (e) ; see also Hoefs v. CACV of Colorado, LLC , 365 F. Supp. 2d 69, 73 (D. Mass. 2005) (discussing common law "mailbox rule").
The court concludes Plaintiff is entitled to summary judgment. First, as Plaintiff explained in its reply brief and supported with admissible evidence, the screen-shot which Defendants rely upon does not show the insurance application, contrary to Defendants' assertion. (See Dkt. No. 39-1.) Rather, that screen-shot shows the insurance quote process. (Dkt. No. 41-1 ¶ 7.) During the quote process, prospective insureds must answer various questions and provide certain information, including whether another driver should be added to the quote. (Id. ¶¶ 6, 8.) After providing the requested information, they are presented with an insurance quote and a premium price. (Id. ¶ 13.) The prospective insureds are then asked whether they wish to purchase the quoted policy and, if they provide an affirmative answer by clicking on a button, they are presented with the insurance application. (Id. ¶ 15.) The application is populated from the information the insureds provide when requesting a quote as well as other relevant information, such as driving history. (Id. ¶ 19.) The prospective insured then has the opportunity to review the application for errors before digitally signing it. (Id. ¶¶ 17-20.) This was the same process used for Mr. Reynolds' application. (Id. ¶ 19.)
The court also notes that the second page of the screen-shot exhibit uses the word "quote" twice, which further supports Plaintiff's assertion that the exhibit shows the quote process, not the actual application. (Dkt. No. 39-1 at 2.)
Accordingly, the fact that the screen-shot (showing the quote process) uses slightly different language than the application does not call into question the underlying accuracy of the application Plaintiff has provided. Moreover, because Ms. Martin testified at her deposition that Mr. Reynolds completed the insurance application, the court struck Ms. Martin's subsequent affidavit, and Defendants have not otherwise presented admissible evidence disputing this assertion, the court finds it is undisputed that Mr. Reynolds signed the online insurance application.
As Plaintiff also argues, even if neither Mr. Reynolds nor someone on his behalf completed the application, that would mean there was no insurance contract whatsoever and Plaintiff would be entitled to the same relief. See Santos , 746 F. Supp. 2d at 266-67. "Put simply, [Defendants] cannot have it both ways: [they] cannot have an insurance policy without an application indicating [Mr. Reynolds'] assent to enter into an insurance contract." Id. at 269 ; see also Bos. Five Cents Sav. Bank v. Brooks , 309 Mass. 52, 34 N.E.2d 435, 439 (1941).
Next, the court finds Plaintiff has adequately supported its assertion that the premium would have been higher had Ms. Martin been listed as a customary driver, and Defendants have not controverted this fact with admissible evidence. As mentioned, "[f]or purposes of G.L. c. 175, § 186, a fact is deemed material [and its misrepresentation supports voiding the policy] if it influences the premium." Barnstable Cty. , 680 N.E. 2d at 44. "The calculation of a premium is actuarial in nature and does not depend on the facts relating to any particular insured; thus, the only factually relevant information is whether [Plaintiff] did in fact charge a higher premium for adding drivers like [Ms. Martin] to the policy." Santos , 746 F. Supp. 2d at 271 ; see Barnstable Cty. , 680 N.E. 2d at 44. Although Plaintiff has not set forth in detail exactly how it arrived at a higher premium figure for adding Ms. Martin to the policy, it has provided an affidavit from Michell McKinney, who is employed by Plaintiff and is "familiar with the policies and procedures of [Plaintiff's] underwriting department," attesting that the premium on Mr. Reynolds' insurance policy would have been between $140 and $145 higher (depending on whether a paperless discount applied) if Ms. Martin were added. (Dkt. No. 41-3.) Because Defendants have not contested this assertion with admissible evidence, it is undisputed for purposes of summary judgment. See Fed. R. Civ. P. 56(c), (e). Moreover, given the court's other findings, the higher premium establishes the materiality of the misrepresentation as well as Plaintiff's entitlement to void the Optional Insurance Parts of the policy.
In the end, "[t]o defeat summary judgment, a party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’ " Chiang v. Verizon New England Inc. , 595 F.3d 26, 34 (1st Cir. 2010) (quoting Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Moreover, "a party cannot ward off summary judgment with ‘proffers that depend ... on arrant speculation, optimistic surmise, or farfetched inference.’ " Lang v. Wal-Mart Stores E., L.P. , 813 F.3d 447, 460 (1st Cir. 2016) (quoting Fragoso v. Lopez , 991 F.2d 878, 887 (1st Cir. 1993) ). Rather, "a party opposing summary judgment must ‘present definite, competent evidence to rebut the motion.’ " Maldonado-Denis v. Castillo-Rodriguez , 23 F.3d 576, 581 (1st Cir. 1994) (quoting Mesnick , 950 F.2d at 822 ). In other words, "[t]he evidence illustrating the factual controversy ... must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve." Nat'l Amusements, Inc. v. Town of Dedham , 43 F.3d 731, 735 (1st Cir. 1995) (internal quotation marks omitted). Because Defendants have not met their burden to dispute the material facts and "the record taken as a whole could not lead a rational trier of fact to find [in their favor], there is no genuine issue for trial," and Plaintiff is entitled to summary judgment as a matter of law. Matsushita Elec. , 475 U.S. at 587, 106 S.Ct. 1348 (internal quotation marks omitted).
VII. CONCLUSION
For these reasons, the court ALLOWS Plaintiff's Motion for Summary Judgment (Dkt. No. 37) and Plaintiff's Motion to Strike (Dkt. No. 40). The Clerk shall enter judgment for Plaintiff.
It is So Ordered.