Southern Insurance Company v. Cjg Enterprises Inc., et al

First MOTION for Summary Judgment

S.D. IowaFebruary 2, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA SOUTHERN INSURANCE COMPANY as subrogee of TONY LOWENBERG and as subrogee of KURT LOWENBERG, Plaintiff, v. CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC. and LESTER BUILDING SYSTEMS, LLC, Defendants. CASE NO. 3:15-CV-00131-JEG-SBJ CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC.’S MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested) COMES NOW Defendant CJG Enterprises, Inc. f/k/a Precision Structures, Inc. (“CJG”), and pursuant to Federal Rule of Civil Procedure 56 and LR 56, hereby submits this Motion for Summary Judgment, stating as follows: I. Southern Insurance Company (“Southern”) has no right to subrogation against CJG because it’s insured’s contract with CJG waives all rights to subrogation. 1. CJG is a company involved in the construction of agricultural buildings. 2. In 2007, CJG was involved in the construction of two hog finishing facilities for Tony Lowenberg and Kurt Lowenberg (collectively as the “Lowenbergs”), owners of Lowenberg Farms, Inc. 3. The facilities were located at 9055 175 th Street and 18725 Farson Road, both in Hedrick, Iowa. 4. Southern issued policies of insurance to Tony Lowenberg and Kurt Lowenburg to cover loss and damage to the hog finishing facilities. 5. On April 27, 2014, a storm caused damage to the hog finishing facilities. Case 3:15-cv-00131-RGE-SBJ Document 67 Filed 02/02/17 Page 1 of 3 2 6. Following the storm, the Lowenbergs filed insurance claims on their policies of insurance with Southern. 7. Subsequently, Southern alleges it paid $552,310.13 on the Lowenbergs’ claims. 8. Thereafter, Southern filed a petition, amended petition, and second amended petition against CJG and Defendant Lester Buildings Systems, Inc. for subrogation to recoup the payments made pursuant to the policies of insurance issued to the Lowenbergs. 9. However, the construction contracts between CJG and the Lowenbergs contain a subrogation waiver provision. As such, they are not entitled to assert a claim for subrogation. 10. A supporting brief, appendix and Statement of Undisputed Facts are also submitted. WHEREFORE Defendant CJG Enterprises, Inc. f/k/a Precision Structures, Inc. hereby requests this Court grant this Motion for Summary Judgment and dismiss Plaintiff’s claims against it, with costs assessed to Plaintiff. An oral argument is requested for this motion. Respectfully submitted, CARMONEY LAW FIRM, PLLC By: /s/ Jack W. Leverenz Michael A. Carmoney Jack W. Leverenz 1163 24 th St., Ste. 200 Des Moines, IA 50311 Phone: (515) 277.6550 Fax: (515) 277.6561 mike@carmoneylaw.com jack@carmoneylaw.com ATTORNEYS FOR DEFENDANT Original e-filed. Case 3:15-cv-00131-RGE-SBJ Document 67 Filed 02/02/17 Page 2 of 3 3 Copies via e-filing to: Kevin Driscoll Finley Law Firm 699 Walnut Street, Ste 1700 Des Moines, IA 50309 ATTORNEY FOR PLAINTIFF Thaddeus Baria Cozen O’Connor 123 North Wacker Drive, Ste. 1800 Chicago, IL 60606 ATTORNEY FOR PLAINTIFF Mark Schultheis Nyemaster Goode, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309 ATTORNEY FOR DEFENDANT LESTER BUILDINGS, LLC Case 3:15-cv-00131-RGE-SBJ Document 67 Filed 02/02/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA SOUTHERN INSURANCE COMPANY as subrogee of TONY LOWENBERG and as subrogee of KURT LOWENBERG, Plaintiff, v. CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC. and LESTER BUILDING SYSTEMS, LLC, Defendants. CASE NO. 3:15-CV-00131-JEG-SBJ CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC.’S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant CJG Enterprises, Inc. f/k/a Precision Structures, Inc., and pursuant to Federal Rule of Civil Procedure 56 and LR 56, hereby submits the following Statement of Undisputed Facts in Support of its Motion for Summary Judgment. 1. Defendant CJG Enterprises, Inc., formerly known as Precision Structures, Inc. (“CJG”), is a company involved in the construction of agricultural buildings. (App. 26). 2. In 2007, CJG entered into contracts for the construction of two hog finishing facilities for each of Tony Lowenberg and Kurt Lowenberg. (App 1-4). 3. The facilities were located at 9055 175 th Street (Kurt Lowenberg facilities) and 18725 Farson Road (Tony Lowenberg facilities), both in Hedrick, Iowa. (App. 9-10). 4. The construction contracts between PSI and the Lowenbergs state, as relevant to this motion: “Owner agrees to assume all liability for materials (and carry insurance to cover replacement value of materials) and hereby waives all rights of subrogation under the owner’s policy of insurance.” (App. 1-4). Case 3:15-cv-00131-RGE-SBJ Document 67-1 Filed 02/02/17 Page 1 of 3 2 5. In addition, the Lowenbergs also signed a document labeled “Customer Responsibilities,” stating “Insurance on all materials (i.e. equipment, building, etc.) as delivered. Owner assumes all liability for materials (and carries insurance to cover replacement value of materials) and hereby waives all rights of subrogation under the owner’s policy of insurance.” (App. 38-41, 42-45). 6. Plaintiff Southern Insurance Company (“Southern”) issued commercial insurance policies to Kurt Lowenberg and Tony Lowenberg to cover loss and damage to the hog finishing facilities. (App. 16; 46-50 (Kurt Lowenberg Policy); 51-55 (Tony Lowenberg Policy)). 7. The policies contained a subrogation clause, stating “If ‘we’ pay for a loss, ‘we’ may require ‘you’ to assign to ‘us’ ‘your’ right of recovery against others.” (App. 50, 55). 8. “We” and “us” refers to Southern, while “you” and “your” refers to the Lowenbergs. (App. 49, 54) 9. On April 27, 2014, a storm went through the Hedrick area. (Second Amended Complaint ¶ 16). 10. During the storms, the roofs of the facilities were damaged. (Second Amended Complaint ¶¶ 17-18). 11. Following the storm, the Lowenbergs filed an insurance claim on their farm policy with Southern. (Second Amended Complaint ¶ 22). 12. Southern alleges it paid out $552,310.13 in damages for the losses. (Second Amended Complaint ¶ 22). 13. Southern has filed a Complaint against CJG for the subrogation rights and claims of the Lowenbergs to recoup the payments made pursuant to its farm policy with the Lowenbergs. (Second Amended Complaint ¶¶ 22-23). Case 3:15-cv-00131-RGE-SBJ Document 67-1 Filed 02/02/17 Page 2 of 3 3 14. Defendant has denied the subrogation claim, due in part, to the subrogation waiver provision contained in the construction contract. (See Defendant’s First Amended Answer to Second Amended Complaint, Affirmative Defense 12). Respectfully submitted, CARMONEY LAW FIRM, PLLC By: /s/ Jack W. Leverenz Michael A. Carmoney Jack W. Leverenz 1163 24 th St., Ste. 200 Des Moines, IA 50311 Phone: (515) 277.6550 Fax: (515) 277.6561 mike@carmoneylaw.com jack@carmoneylaw.com ATTORNEYS FOR DEFENDANT Original e-filed. Copies via e-filing to: Kevin Driscoll Finley Law Firm 699 Walnut Street, Ste 1700 Des Moines, IA 50309 ATTORNEY FOR PLAINTIFF Thaddeus Baria Cozen O’Connor 123 North Wacker Drive, Ste. 1800 Chicago, IL 60606 ATTORNEY FOR PLAINTIFF Mark Schultheis Nyemaster Goode, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309 ATTORNEY FOR DEFENDANT LESTER BUILDINGS, LLC Case 3:15-cv-00131-RGE-SBJ Document 67-1 Filed 02/02/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA SOUTHERN INSURANCE COMPANY as subrogee of TONY LOWENBERG and as subrogee of KURT LOWENBERG, Plaintiff, v. CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC. and LESTER BUILDING SYSTEMS, LLC, Defendants. CASE NO. 3:15-CV-00131-JEG-SBJ CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC.’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant CJG Enterprises, Inc. f/k/a Precision Structures, Inc. (“CJG”), and pursuant to Federal Rule of Civil Procedure 56 and LR 56, hereby submits this brief in support of its Motion for Summary Judgment. TABLE OF CONTENTS FACTUAL BACKGROUND……………………………………………………………………1 SUMMARY JUDGMENT STANDARD………………………………………………………..3 ARGUMENT…………………………………………………………………………………….3 I. PURSUANT TO THE CONTRACTUAL SUBROGATION WAIVER PROVISION CONTAINED IN THE CONSTRUCTION CONTRACT, PLAINTIFF CANNOT ASSERT A CAUSE OF ACTION AGAINST CJG ENTERPRISES………………………………………………………………………3 CONCLUSION…………………………………………………………………………………..7 FACTUAL BACKGROUND CJG is a company involved in the construction of agricultural buildings. (Deposition of Claude Greiner p. 13, App. 26). In 2007, CJG was involved in the construction of two hog Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 1 of 9 2 finishing facilities for each of Tony Lowenberg and Kurt Lowenberg. (Contracts, App. pp. 1-4). The facilities were located at 9055 175 th Street and 18725 Farson Road, both in Hedrick, Iowa. (Deposition of Kurt Lowenberg p. 5-6, App. 9-10). In building the facilities, CJG used pre- engineered structures, designed and manufactured by the co-defendant in this action, Lester Building Systems. (Deposition of Claude Greiner p 51-52, App. 30-31). However, in April, 2014, a severe storm went through the Hedrick area. (Deposition of Kurt Lowenberg p. 22-26, App. 11-15; Second Amended Complaint ¶ 16). During the storms, the roofs of the facilities were damaged, causing damage to the Barns. (Deposition of Kurt Lowenberg p. 22-26, App. 11- 15; Second Amended Complaint ¶ 17-18). At the time, the facilities were insured by Southern through a commercial policy it had contracted for with the Lowenbergs. (Lowenberg Policies, App. 46-50 (Kurt Lowenberg policy); App. 51-55 (Tony Lowenberg Policy). Following the storm, the Lowenbergs filed an insurance claim on their commercial policy with Southern Insurance Company (“Southern”). (Deposition of Kurt Lowenberg p. 33, App. 16; Second Amended Complaint ¶ 22). Subsequently, Southern alleges it paid out $552,310.13 in damages for the loss. (Second Amended Complaint ¶ 22). Southern thereafter filed a Complaint against the Defendants for subrogation to recoup the payments made pursuant to its commercial policy with the Lowenbergs. (Second Amended Complaint ¶¶ 22-23). Southern’s right to subrogate is based upon its contract with the Lowerbergs, and the subrogation clause stating, in part: “12. Subrogation -- If ‘we’ pay for a loss, ‘we’ may require ‘you’ to assign to ‘us’ ‘your’ right of recovery against others.” (Policies, App. 50, 55). CJG has denied the claims, assert amongst other defenses, the right to subrogation was contractually waived in the contract between the Lowenbergs and CJG. (First Amended Answer to Second Amended Complaint, Affirmative Defense 12). Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 2 of 9 3 SUMMARY JUDGMENT STANDARD According to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992). “An issue of material fact is genuine if it has a real basis in the record.” Id. (citations omitted). A genuine issue of fact is material if ‘it might affect the outcome of the suit under the governing law.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986)). “The movant has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of genuine issue.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct 2548, 2552-54, 91 L.Ed.2d 265 (1986)). “Where the record as a whole could not lead a rational trier of fact to find for the non- moving party, there is no ‘genuine issue for trial’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Summary judgment is considered by the Courts to be “an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Id. (quoting Celotex, 477 U.S. at 327, 106 S.Ct at 2555, 91 L.Ed.2d 265 (1986)). ARGUMENT I. PURSUANT TO THE CONTRACTUAL SUBROGATION WAIVER PROVISION CONTAINED IN THE CONSTRUCTION CONTRACT, PLAINTIFF CANNOT ASSERT A CAUSE OF ACTION AGAINST CJG ENTERPRISES, INC. Subrogation refers to both a legal right and a cause of action. Wilson v. Farm Bureau Mut. Ins. Co., 770 N.W.2d 324, 328 (Iowa 2009). “In the insurance context, the doctrine permits an insurer who has paid a loss to an insured to become ‘subrogated in a corresponding amount to Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 3 of 9 4 the insured’s right of action against the other person responsible for the loss.’” Id. (quoting Allied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820, 824 (Iowa 2004). “While the insurer has no right of subrogation against an insured, the actions of an insured may affect the subrogation rights of an insurer to recover from the third party tortfeasor for a loss paid.” Allied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820, 824 (Iowa 2004). That is true because the insurer’s rights to subrogation are derivative of the rights held by the insured against the tortfeasor. Id. “When an insurer asserts a subrogation claim against a third party tortfeasor, the insurer’s rights are limited to the rights of recovery possessed by the insured.” Id. at 625. In addition, the subrogation claim is subject to all defenses the tortfeasor could assert against the insured. Id. One such defense includes waiver of the cause of action by the insured. Id. In this case, Southern is asserting a two causes of action based upon its subrogation rights against CJG, for amounts paid to their insureds, which they claim arise out of the work performed by CJG. (See Second Amended Complaint). Among their defenses, CJG asserts the causes of action were waived by the Lowenbergs in the construction contracts they entered into with CJG. (First Amended Answer to Second Amended Complaint, Affirmative Defense 12). As to the right of Southern to seek subrogation, such a right stems from its contract with the Lowenbergs Allied Mut. Ins. Co. v. Heiken, 675 N.W.2d at 824. The Lowenberg policies are identical, and state “12. Subrogation – If ‘we’ pay for a loss, ‘we’ may require ‘you’ to assign to ‘us’ ‘your’ right of recovery against others.” (Lowenberg policies, App. 50, 55). Per the definitions, “we” and “us” pertain to Southern, and “you” and “your” refer to the Lowenbergs. (Lowenberg policies, App. 49, 54). Thus, Southern can only obtain those subrogation rights in which the Lowenbergs can assign to Southern. The question then turns to what subrogation rights can be assigned by the Lowenbergs to Southern, if any at all. Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 4 of 9 5 CJG entered into four contracts with the Lowenbergs for the hog finishing facilities at issue in this case. (Contracts, App. 1-4). Each contract, as to the terms, is identical. These primary contacts between PSI and the Lowenbergs each state: “Owner agrees to assume all liability for materials (and carry insurance to cover replacement value of materials) and hereby waives all rights of subrogation under the owner’s policy of insurance.” (Contracts, App. 1- 4) (emphasis added). The Lowenbergs also signed a document labeled “Customer Responsibilities,” stating “Insurance on all materials (i.e. equipment, building, etc.) as delivered. Owner assumes all liability for materials (and carries insurance to cover replacement value of materials) and hereby waives all rights of subrogation under the owner’s policy of insurance.” (Contracts, App. 38-41, 42-45) (emphasis added). There is an extensive body of U.S. case law analyzing construction contracts, wherein waiver of subrogation rights is standard. In many jurisdictions, waiver of subrogation rights contained within construction contracts are found to be enforceable. Lexington Insurance Co. v. Entrex Communication Services, 749 N.W.2d 124 (Neb. 2008); Board of Commissioners of County of Jefferson v. Teton Corp., 30 N.E.2d 711 (Ind. 2015); Summit Contractors, Inc. v. General Heating & Air Conditioning, Inc., 595 S.E.2d 472 (S.C. 2004); Reliance National Indemnity v. Knowles Industrial Services, 868 A.2d 220 (Me. 2005); Penn Ave. Place Assoc., L.P. v. Century Steel Erectors, Inc., 798 A.2d 256 (Pa. 2002). In addition, in the context of insurance, waiver of subrogation provisions are widely found to be enforceable and to (generally) prevent an insurer from suing a tortfeasor. Lexington Insurance Co. v. Entrex Communication Services, 749 N.W.2d 124 (Neb. 2008); Reliance National Indemnity v. Knowles Industrial Services, 868 A.2d 220 (Me. 2005). Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 5 of 9 6 In analyzing this case under Iowa law, a recent Iowa Court of Appeals decision pertaining to enforceability of waiver of subrogation clauses is guiding.” Federal Ins. Co. v. Woodruff Const., 826 N.W.2d 516, 2012WL5954588 (Iowa Ct. App. 2012) (unpublished). This case indicates waiver of subrogation provisions among parties to a construction contract are consistent with Iowa law and enforceable. Id. Subrogation provisions are part of a comprehensive approach to allocating risk. Id. As a result, The Iowa Court of Appeals held the owner’s property insurer could not sue a tortfeasor contractor where the insured owner signed a waiver of subrogation rights provision. Id. In addition, the Court of Appeals was faced with the issue of deciding the extent of the subrogation waiver. Specifically, the Court of Appeals had to determine whether the waiver language in the construction contract applied only to damages to “the Work” or whether it applied to damages covered by insurance “applicable to the Work?” Id. In that decision, all parties agreed that “the Work” referred to the construction project. Id. In Federal Ins. Co. v. Woodruff Const., the Iowa Court of Appeals analyzed the majority approach, which limit the waiver to proceeds of the property insurance obtained pursuant to the contract or other property insurance applicable to the work. Id. They found that these jurisdictions made no distinction between damages to work and non-work property. Id. Rather, the focus is on whether the policy is broad enough to cover damages to work and non-work property and whether the policy paid for the damages. Id. If the answer to both is yes, the waiver applies. Id. The Court of Appeals adopted the majority position. Id. In determining whether the specific contractual language barred a claim for subrogation, the Court of Appeals utilized Iowa law with respect to contract interpretation. Specifically, the Court of Appeals recognized that “[i]t is a fundamental and well settled rule that when a contract is not ambiguous, we must simply interpret it as written.” Id. (quoting Smidt v. Porter, 695 Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 6 of 9 7 N.W.2d 9, 21 (Iowa 2005). In addition, the Court “must give effect to the language of the entire contract according to its commonly accepted and ordinary meaning.” Id. (quoting Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). In so doing, the Court of Appeals found that the subrogation waiver provision applied. While the language in this case is different than the language in Federal Ins. Co. v. Woodruff Const., the contractual language here is clear and unambiguous with respect to waiving subrogation rights. The contract between the two parties states “Owner agrees to assume all liability for materials (and carry insurance to cover replacement value of materials) and hereby waives all rights of subrogation under the owner’s policy of insurance.” (Contracts, App. 1-4) (emphasis added). As the words in a construction contract must be read in context, we also look to the language included in a document labeled “Customer Responsibilities,” stating “Insurance on all materials (i.e. equipment, building, etc.) as delivered. Owner assumes all liability for materials (and carries insurance to cover replacement value of materials) and hereby waives all rights of subrogation under the owner’s policy of insurance.” (Customer Responsibilities, App. 38, 42) (emphasis added). There is not dispute, or ambiguity, that “owner” refers to Kurt and Tony Lowenberg in their respective contracts with CJG. Furthermore, there is no dispute that the “owner’s policy of insurance” is the policy of insurance held by the Lowenbergs for the hog finishing facilities, here Southern’s commercial policies. (Policies, App. 46-55). Further, “hereby waives all rights of subrogation” is not ambiguous. In fact, it is a straight forward statement. In entering into these contracts with CJG, the Lowenbergs waived all rights of subrogation, which includes those sought by Southern in this action. As these subrogation waivers do not violate public policy, Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 7 of 9 8 they are valid and enforceable. See Federal Ins. Co. v. Woodruff Const., 826 N.W.2d 516, 2012WL5954588 (Iowa Ct. App. 2012) (unpublished). CONCLUSION When a contract contains a subrogation waiver provision, that waiver is valid and enforceable. Federal Ins. Co. v. Woodruff Const., 826 N.W.2d 516, 2012WL5954588 (Iowa Ct. App. 2012) (unpublished). Furthermore, when the subrogation waiver is not ambiguous, the Courts must interpret it as written. See id. In this case, the subrogation waiver contained in the contracts is unambiguous and must be enforced as written. As a result, the defendants are entitled to summary judgment. WHEREFORE defendant CJG Enterprises, Inc., formerly known as Precision Structures, Inc., respectfully requests summary judgment in their favor with dismissal of all subrogation claims against them. Respectfully submitted, CARMONEY LAW FIRM, PLLC By: /s/ Jack W. Leverenz Michael A. Carmoney Jack W. Leverenz 1163 24 th St., Ste. 200 Des Moines, IA 50311 Phone: (515) 277.6550 Fax: (515) 277.6561 mike@carmoneylaw.com jack@carmoneylaw.com ATTORNEYS FOR DEFENDANT CJG ENTERPRISES, INC. Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 8 of 9 9 Original e-filed. Copies via e-filing to: Kevin Driscoll Finley Law Firm 699 Walnut Street, Ste 1700 Des Moines, IA 50309 ATTORNEY FOR PLAINTIFF Thaddeus Baria Cozen O’Connor 123 North Wacker Drive, Ste. 1800 Chicago, IL 60606 ATTORNEY FOR PLAINTIFF Mark Schultheis Nyemaster Goode, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309 ATTORNEY FOR DEFENDANT LESTER BUILDINGS, LLC Case 3:15-cv-00131-RGE-SBJ Document 67-2 Filed 02/02/17 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA SOUTHERN INSURANCE COMPANY as subrogee of TONY LOWENBERG and as subrogee of KURT LOWENBERG, Plaintiff, v. CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC. and LESTER BUILDING SYSTEMS, LLC, Defendants. CASE NO. 3:15-CV-00131-JEG-SBJ CJG ENTERPRISES, INC. f/k/a PRECISION STRUCTURES, INC.’S APPENDIX IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant CJG Enterprises, Inc. f/k/a Precision Structures, Inc. (“CJG”) pursuant to Federal Rule of Civil Procedure 56 and LR 56 and hereby submits this appendix in support of ITS Motion for Summary Judgment. TABLE OF CONTENTS 1. Contract between CJG and Kurt Lowenberg: App. 1; 2. Contract between CJG and Kurt Lowenberg: App. 2; 3. Contract between CJG and Tony Lowenberg: App. 3; 4. Contract between CJG and Tony Lowenberg: App. 4 5. Deposition of Kurt Lowenberg excerpts: App. 5-19; 6. Deposition of Claude Greiner excerpts: App. 20-37; 7. Customer Responsibilities Document: App. 38-41 8. Customer Responsibilities Document: App. 42-45. 9. Kurt Lowenberg insurance policy excerpts: App 46-50. 10. Tony Lowenberg insurance policy excerpts: App. 51-55. Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 1 of 57 Respectfully submitted, CARMONEY LAW FIRM, PLLC By: /s/ Jack W. Leverenz Michael A. Carmoney Jack W. Leverenz 1163 24 th St., Ste. 200 Des Moines, IA 50311 Phone: (515) 277.6550 Fax: (515) 277.6561 mike@carmoneylaw.com jack@carmoneylaw.com ATTORNEYS FOR DEFENDANT CJG ENTERPRISES Original e-filed. Copies via e-filing to: Kevin Driscoll Finley Law Firm 699 Walnut Street, Ste 1700 Des Moines, IA 50309 ATTORNEY FOR PLAINTIFF Thaddeus Baria Cozen O’Connor 123 North Wacker Drive, Ste. 1800 Chicago, IL 60606 ATTORNEY FOR PLAINTIFF Mark Schultheis Nyemaster Goode, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309 ATTORNEY FOR DEFENDANT LESTER BUILDINGS, LLC Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 2 of 57 , N9.1011 PV(3). 9)'640.; 43.0 1204 First Avenue North Wain:In:Iowa-523564026: FrA,t;.(31:0).646;247,1 PRECISION STRUCTURES , ntéottPciitattb .. ' Precision SI rtiela res, Itic \Venn= Iowa dorées, to furniSiitheitentshstettbelow and/or on the attached lisCatid.o.wher agreept6 take delivery and pay for SItChiteats.Ttaidertheitrins :.?, Ihtediteretaider,:Payaietd,fer4naterialS,Waet oia***fòfni4erii*10:iiié UpoUdilivery. All invoices are considered'.delinquen'it,tfnot paid'ssilion 5 40 are0001fead**tente,r agree': to ei4114yofgaototot.sifférit)**5::..dg*:jfiii#11241.9svner agrees to assume all liability fer y(440Ciiiii.:5iiiiiii4.0e*c6;0- rePie&Merit,yalue of materials)anitherebY,V17M.Vesdtrightibl subrogation undertheowner's P1ilkidiiiatiti*.the risk *less foi,MjikiA4kpasses to (''''r 'ipón delivery Iteii)iners premise:5pr building site. -- . .. .... ., .. , , . - - . . Pigiiiien Structuttc:,Vinitiber idt Sentitaaterial in one area. Any excess materhd andlor, ,.. . 'equip**, not deemed :scr:10 ',by Precision Streetures remains the'^prok rty .of Precision graCtaiii It is the' owner's responsibility lo dispose l Of that which-i5 detkaiiried to be s erap matjahfal by'PreciSion tr Suctures. ... Any concrete N.,/orli....avolved 'pursuant to this agreement is not guarantedd ageinst . .cracking or :leaking. Reasonable precautions, Mi1 na! to the swine onfi&MMit conitruCtieu :,-indaStry, shalt, be takei:',*.-the..- contractor, but cracks do frequently Oectir...änd cannot be , reasenably'prevented. - - - - - . . , , .. . . Building md equipment are COS ered by a 90 day Warrantyfor materials arid lalmir, from the date annuals 'enter the building and,for the building is deemed complete by Prei4sien Structures. After 911;:days the owner is ^responsible for all reliMi;S:ind niairiiétianee. .Normal maintenance IS the';respondbilily of the mtikr. Building may not he used until Meliten ._ 'Structures has received all päyincíits. Agrees is emiSiatred executed by signattureMkOth . parties. , ^ , , . .. . .. , . , 71'4" X 261'0" P.S.1.'s 2400 Head Auta'Sart D'esign Finishing Facility - per attnebe(.taMies ' . . .%'46.6dié0:00 Tdiat'Conti.aet :Wien* (Includes all current , ., ippltcable proinotienaldiscoapts and rebates) - . . :2,500.00 ,t811,000.00. x/70;860.00' J79.500.0-0 - 60.000.00 /621,WS0.00:' Vag tud 013 et-, Pres. Amount Duit lition'Sigidekof Or(ler:0% of iotal conti act amount) . Amounttne UpOt: Starling of Conerite - - . . . Amount Dne titan Coinpletion e.:Iiin:rete Pit . - : . Anion* Due Mien Delitery of'Slats ' 'Amount Due.Upon Delivery ef ' . AmobiteDne Upon Delivery orEqnipment , . Amoy:One Upon. Completion- Date ". Owner -- Kurt J mwenb Date ea, . dreteloritibil colt) conter eavelfascia niliò,..01hen - Note: Mine's. agive.i that Y building is not cons r feted in 2007, owner will pay41 pica lít'aieu- se.s: - hicurred by PSI, fir consbuction after 2097. 0). " ' - Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 3 of 57 SOUTH Ph. (319) 646.2430 1204 First Avenue North Wellman, Iowa 52356 -0029 FAX (319) 646.2471 PRECISION STRUCTURES INCORPORATED Precision Structures, Inc., Wellman, Iowa agrees to furnish the items listed below and /or on the attached list and owner agrees to take delivery and pay for such items under the terms listed hereunder. Payment for materials is net and all money for materials is due upon delivery. All invoices are considered delinquent if not paid within 5 days of receipt and customer agrees to pay 1.5% interest after the 5th day if not paid. Owner agrees to assume all liability for materials (and carry insurance to cover replacement value of materials) and hereby waives all rights of subrogation under the owner's policy of insurance. The risk ofloss for materials passes to owner upon delivery to owner's premises or building site. Precision Structures will gather all scrap material in one area. Any excess material and /or equipment not deemed scrap by Precision Structures remains the property of Precision Structures. It is the owner's responsibility to dispose of that which is determined to be scrap material by Precision Structures. Any concrete work involved pursuant to this agreement is not guaranteed against cracking or leaking. Reasonable precautions, normal to the swine confinement construction industry, shall be taken by the contractor, but cracks do frequently occur and cannot be reasonably prevented. Building and equipment are covered by a 90 day warranty for materials and labor, from the date animals enter the building and /or the building is deemed complete by Precision Structures. After 90 days the owner is responsible for all repairs and maintenance. Normal maintenance is the responsibility of the owner. Building may not be used until Precision Structures has received all payments. Agreement is considered executed by signature of both parties. 71'4" X 261'0" P.S.I.'s 2400 Head Auto Sort Design Finishing Facility s4 6,0 - per attached copies Total Contract Amount (Includes all current applicable promotional discounts and rebates) 2,500.00 Amount Due Upon Signing of Order (4% of total conti act amount) 1 80.000.00 Amount Due Upon Starting of Concrete /79,800.00 Amount Due Upon Completion of Concrete Pit V 79,500.00 Amount Due Upon Delivery of Slats /160,000.00 Amount Due Upon Delivery of Building /62,550.00 Amount Due Upon Delivery of Equipment /#5é 00,4227 vl am Amount Due Upon Completion e,, i/ / --d7 C aude Gre nef, Pres. Date Owner - Kurt Lo n g Date Basic Building Colot: /4/4 Circle for trim color: gables corner eave /fascia rake Other: 4/6,J , Note: Owner agrees that if building is not con tçrpted in 2007, owner will pay all price increases incurred by PSI, for construction after 2007. C LL (Owner Initial) Bates 000153 Trim Color: 4 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 4 of 57 Ph. (319) 646-2430 1204 First Avenue North Wellman, lima 52356-0029 FAX (319) 646-2471 - ,, PRECISION STRUCTURISS . - - 1 ',' IIItteiltOtiiikliii) ' , , ' : ' ' , , s Piteitii011S11'11CLIll'eSt. Me., WCIIIII:Illr Iona agrees to thrash the iteins listed below and Or on .the,at nulled listiand owner agrees:to MU &livery and: paV fin. such:items under the terms .. ,,,. ,,. ......., .. - , ,. . , , listidtieretinder. liai'inent for materials is net and all:ino.Ot for ma itaials is due upon delivëry. NII itiVoiceS are c011Sidt1td delinquent irnot paidWitlihi 5 tla s Or receiiif Mid cust oinCr a gi.ceilo ,pay 1..p%Attet-es( after the 5th ti ay il not Ronk OwntT agt-ess to assume allihátulitylornutterials 0,tiacl:Cii-,:insuraii:10 coVer It 1j1:!ednilt hut of matc;riali) add kerebY,:i.yttfret-all rightsOf sittirtigatimi under-the owner's polie3rofitiPtirance.'114i..ish or loss' ror-Mateg4ials jnigiep to o' lit . . ..-. upon deliv'eiy.:. to MOter's Premises in' b Oilding site. .. Preeiiiini St ritéturéS will '4 111k affierap material in ime artai. :km: exccss matt:Hal ginillor .00tinent Mil deenfed "Senn) by Pi ee'iShin .Strortures remains the properly or Precipitin -St rtiefia4S. It is the owner's responsibilitY, to dkpose or that \Odell' is deteriniintA to be scrap .. Material bv Pétision Structures. -- , . -Any CIIIÏC)ITIO:worli. involved plit.snant to this agreement- is not guaranteed against et ncf;lial; ot::feäliitig. Reasonable preenntiMist, luirtitart 6 tlw S% in confinement construction iniiiistry, 514144. taken by the coider-aetiir, Inti ca'äelis do frequently OC.Cni. and. coatitit be reasonaldpievented. _ , ,Builtfitig and cquipment ar'e covet-id IV a 90 day 'Warranty-for materials and labor, from -: du: date anininii?enterilio building anclior the building is deemed co inpki ebv Pi-t: eiSiOn Struct tires. .1utoi. 90 clays the Owner is responsible for all repairs and mainienallCC. Norm il litattitenance is the'rePPOnsibility of the- ott ner. Riiildhik, may riot lie used untikPreeishm ;ftti"et tires has recoil:ed.:all payments. 'Agreement i;:.eottsider:Oddieettted lilt signatureor both - s parties. - - . , . . -1, . .. " '71'44 X 261'0''P.5.1.'s 2400.11cad Auto Sort Design Finishing Facility 444mo:oil, - tieriattached.copics 'total Coritriet Amount em rent applicabl('proniiitional discountsand rehates) ' ' 2.500.00 Aininint Ate Upon _Sieminit otOrtler(rl, or total contract. Moonlit) j'80,000.60 kinotint Due Upon .i.itrting of Conerete 79.800.00 Ainomit Due Upon (:onipletion of C:onereie l'it /79.50000 Amount 'toe 1pon Delivery or Slats ,A60,006.00 Amount Um: Upon Delivery orBuilding .Y64550.00 Amount Due Cpon Delivtty of 9,3evg if/ v soma- Amount Due Upoo_Complet. it (e; / 7,7 7;7, 147 ( In 11110 ( IIIIT;(1171'. PITS. )11 I Owner L I ony I .ovi rob Date Color: . I lint Color: Circle..for trim color: 2ables Othei , - . 01,.!:' Owner tirp.: that if buildinW rs not condiactad u 200,:awnarIllil pay :ill mire im:Timses intarttilAI lbr coi:titrue/d0;;;Vier 2007. TA IL corne Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 5 of 57 . . - ' SOUTII ' : .. - - '... :. .. 1,11i. (Mg) 646-243o .: 1204. iFirst'Avéime piiiirtll* Wellman, lowti,52356-0029 FAX (319)4462471- h t PRECISION' STRUCTC4RES - - - . - , -. - . L. ;IIIPOR0014ÁTOD : - . . ' , ' - ' PieeisioiSerfacinrek, Iiic4Wellinan,IOW,i,:agreei furnish the beloisiandihr 'Clip: iké atlachéa an '6Vviiieis.agree:Cto take delivery and patfiii:itieliitems-undeetheikm i ., ' . 7 0 ... ,, .. . ' Rita' hereunder Pgytnent fOrinnitecials,4:netund alkmoney for niitterials is tine up@ delivery, ' .: - ..-A I linvoices'are considereddelinthien if hot paid within 5, days of receipt and cOstoinOr.:i¡réé:s-to pay).,5944ritereOifofter the SO; (lay if iiht piiid;rOwnetggccekihastluni all liability for materials ....,...(titulcarcyihi(icapcé töt0Ver,l'ePlineércteni:1Vnlueöt materials) anal:herebY.Wiikei allr,ights Of . - SiihrogitIon'fiinter4Iteintier'iptilley phifistirititee:4liéiisket hiss ftir materials traiSOS tO 0.4101t.: V... :Opsiii deliveily td_tivollils"-piiiiiisei or building site. -- 7 .. '; " , :::: - : " .. - - .. - - - .1 .... . . . 'Peed$10)11 Steucturési*ill gather Allserap materiel in huearea. An,y excess materiel andfor . . . t . " _ . ... - 'eijiiiiinetit not deeniett scraii bj!--.Preciskin Structures reniáins . tint- property.,(if Precision . Structiires.. It is the owner's responsibillty.to-chspose,of flintA0mph is -determined to be $tiaP . .. , ' , .., material- brneeislon Sirbetufes,..it - . , ' .... . - - ....... . , . .., .,,- s. I. '-:- Any concrete involved purSnant to this agrVeinent is itot guaranteed against . , _ . , . " ... .. , . , . -,. eracla rig' or . leaking lleasonable:procau , norm al to theswineco.nfitt incut construption- i ndnitry;: shall .1t:titiceil by thectiiiirsiethi;)ant Cracks do :,trèillieptly,'étéqh. and 'tannin be . reasoiably,PieVente.4... - , , , . Building and are covered-by n 90 day warranty for nt :neria Is and ktbor, from . the ilate-...aiiititals' enter the building iii0/0::-the:'laullifing:lis.. deemed complete by Precision .'''..,$titiCtitie;s,-;:' After 90 days the owner is .rispOniii4fiir..allrepairaiiii niallitenanee. Normal maintenance ..: is the ; responsibility of the owner .Thiiltiiiik.payluit.tië.iiseruniil Precision - Structures has reSiedifili¡gri;méxiii...iigrOOméni is,COSiiered eie&itéa b,..sikO2of &Ali , ..... . . parties. - , ... . " 2400 Bead _Ado Sort Design Finishing 1.1:wilily ..147, 7;0 - 466184.0.0D To a! Contract Anionfit arteludeiáll current . . a pplicahle promofional discounts inalrebates) - 2.500.00 Amountiii:Ulioll Signing P f ()Filet- 0% of total coiifro amoon ." ../ hh.060.00 Amount »ne Upon stiviingpf Concrete - 'I» , ::--, ,.: : :-: . .;,/ 79./;06.00 -AOinnit Due 1pon Completion Of CotCrete )ii ... , 1 79 0.00 Amount Due Up:mDelivety of Slats . . ', . . . ... VI-60,000.00 Am:intit Due L ponbelivery of lihildinh, . , . . - , - . V , 624550.00 Amount Due Upon Deliyeryof Etihrpment ; rAtteto . . -- - , . Amount. Duc Upon 'ComPlee n J. 4 // Claude (1 (einer, Pres. Date:. - Ow 1 --- Diu Lowe . , ....... - ' ttSic-Eitildhig ColorI t /11 I . Trim Color ' , . Circle for trini color: gables orni ve awi Oihér: 1Vote: Maier agrees that if building is not pétistrlictéditi2007, °Ozer will bay all price iticalivd by ¡'Si, fiff,constl'utthrii. after 2007.. , , - : (a....:'.irlid0) - 7-411.; .. .- , . .: . ..,.. . ... _ - - . ,6tes..900.1-.....);,... , . . . . .. - .. . . , . .. , Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 6 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA SOUTHERN INSURANCE ) COMPANY, as subrogee of TONY ) LOWENBERG and as subrogee ) of KURT LOWENBERG, ) ) Plaintiff, ) ) vs. ) ) CJG ENTERPRISES, INC., f/k/a ) PRECISION STRUCTURES, INC. and ) LESTER BUILDING SYSTEMS, LLC, ) ) Defendants. ) * * * * * The Deposition of KURT LOWENBERG, taken by the Defendants, commencing at 10:06 a.m. on Tuesday, January 10, 2017, at the Law Offices of Foss, Kuiken & Cochran, PC, 100 South Court Street, Fairfield, Iowa, reported by BRIDGET A. SWANSTROM, CSR, RPR, RMR. Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 7 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 2 A P P E A R A N C E S For the Plaintiff: THADDEUS BARIA Cozen O'Connor 123 North Wacker Drive Suite 1800 Chicago, IL 60606 For the Defendant Lester Buildings, LLC: MARK SCHULTHEIS Nyemaster Goode, P.C. 700 Walnut Street Suite 1600 Des Moines, IA 50309 For the Defendant CJG Enterprises, Inc., f/k/a Precision Structures, Inc.: JACK W. LEVERENZ Carmoney Law Firm, PLLC 1163 24th Street Suite 200 Des Moines, IA 50311 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 8 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 3 EXAMINATION INDEX KURT LOWENBERG Page No. Examination by MR. SCHULTHEIS . . . . . . . 4 by MR. LEVERENZ . . . . . . . . 69 by MR. SCHULTHEIS . . . . . . . 113 by MR. LEVERENZ . . . . . . . . 118 by MR. BARIO . . . . . . . . . . 119 by MR. SCHULTHEIS . . . . . . . 126 by MR. LEVERENZ . . . . . . . . 127 EXHIBIT INDEX Deposition Page No. Exhibit Description Referenced A Photo Sheets 28 B Drawing 30 C Letter dated 5-16-14 49 D Memorandum of Damages 50 E Handwritten calculations 57 F "Exhibit A" 61 G The Republic Group Commercial Lines Policy 84 H National Weather Service documents 87 I Memo dated 5-19-14 112 1 Contract for "North" 81 2 Contract for "South" 81 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 9 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 4 TUESDAY, JANUARY 10, 2017, FAIRFIELD, IOWA * * * 10:06 a.m. * * * KURT LOWENBERG called as a witness by the Defendants, having first been duly sworn by the Certified Shorthand Reporter, was examined and testified as follows: EXAMINATION BY MR. SCHULTHEIS: Q. State your name for the record, please. A. Kurt Lowenberg. Q. Is it okay if I call you Kurt? A. Yep. Q. Kurt, my name is Mark Schultheis, and we just met. I represent Lester Building Systems in the lawsuit that's been filed by -- I don't know if they're still your insurance company, but at least your former insurance company, Southern Insurance. If I ask any questions today that don't make sense to you, for whatever reason, let me know. I'll try to rephrase it, to make sure we're communicating. If you answer a question, I'll naturally assume you understood. Fair enough? A. Fair enough. Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 10 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 5 Q. Kurt, tell me, where do you live? A. I live in Hedrick, Iowa. 33560 160th Avenue. Q. And one of the two addresses at issue here with damaged buildings is 9055 175th Street in Hedrick. Do you own that property? A. Yes. Q. What sits on that property? A. Just the two hog buildings. Just the two hog buildings sit on that property there at that address. Q. And how big a parcel is that property? A. Ten acres. Q. How long have you owned it? A. 2007. Q. Were you the owner when the Lester buildings were put up there? A. Yes. Q. Who did you buy the property from? A. I bought it from my grandmother. Q. And then the -- is Tony your brother? A. My brother is Tony. Q. And so then is he the owner of -- A. 18725. Q. Farson Road? Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 11 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 6 A. Yep. Q. How -- What sits on that property? A. He has his two hog buildings. He has a machine shed. His house. A grain bin. And that's about it. Q. Do you know how many acres that parcel is? A. It's around 135. Q. And do you know who Tony bought that from? A. Warren Lowenberg. Be my uncle -- great uncle. Q. And how long has Tony owned that property? A. I'm estimating, but I'm going to say somewhere around 2003. Early 2000's. Q. Just tell me a little bit about yourself, if you would. Married, children? A. Yep. I'm married. My wife is Ashley. We have four kids. I have a 13-year-old, a five-year-old, a three-year-old, and a one-year-old. Two boys and two girls. Q. How about your educational background? A. I went to Wartburg College for one year, and then I transferred to Muscatine Community Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 12 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 22 Q. So now, focusing on the storm, the first storm at issue, do you know the date of that storm? A. April -- I'm going to take a little bit of a guess. It was April like 17th or 19th? Q. I think it was -- might have been the 27th. A. Okay. Q. But I was just seeing if you knew from memory -- A. It was in April. Q. Yeah. A. Yep. Q. So the storm at issue was in April of 2014. Do you -- do you recall the actual storm? A. Uh-huh. Q. Yes? A. Yes. Q. Tell me what you remember about it. A. What I -- First of all, what I remember is there was a lady that's just a mile and a half northeast of our -- of us who lost her life that day. A barn had collapsed on her. And that there was a lot of neighbors that had a lot of damage that day. The neighbor to the -- to the west of us had a machine shed that was newly built in the last two Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 13 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 23 years, that it took half of the -- the doors were shut and it took half the machine shed down. The neighbor straight west of me, less than a quarter of a mile, had damage. My grandmother's property that we lived on -- or that I lived with my grandmother, we lost the grain bin that day. And it moved itself all the way down within 150 feet of the hog buildings that day. Q. How far is that? A. 1200 feet. MR. LEVERENZ: Can I just do a quick -- You said it moved itself? THE WITNESS: No. The wind -- or the storm, itself, moved the grain -- or took the grain bin off of the concrete pad and -- and moved it 1200 some feet. We had a machine shed there at that site that was damaged. And there was a -- kind of a line of damage from well over four to five miles. I've -- I take care of six hog sites, five of our own that's in the Lowenberg, and then I take care of a Jim Campbell, who's north of Martinsburg, and he also had damage to his barn. Q. Now, I know you're not a -- not trained Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 14 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 24 in -- A. I'm not a meteorologist. Q. You knew where I was going. A. I know where you're going. Q. But you grew up in Iowa. A. Uh-huh. Q. I grew up in Iowa. I know what a tornado looks like, and I suspect you do, too. Did you think a tornado came through there that day? A. Yes. The -- I can say that because the neighbor to the -- to the west had -- had -- the weather service had stopped, come out and said there was an F0 -- they would predict, to their knowledge, would have said it was an F0 tornado. Q. So going back to the storm, where were you when it actually hit? A. I was at my house. Q. The one you shared with your grandmother? A. No. I actually -- I did not stay in that house at that time. I lived in -- I lived north and east of my hog site a mile -- little over a mile. Q. What was the address there, if you remember? A. 3 -- The 33560 160th Avenue. Q. About what time of the day was it? Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 15 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 25 A. Oh, boy. It was late eve- -- late evening. Q. Was it still light out? A. Just light out when it happened. Q. So where I live there's no such thing as a tornado siren. Any tornado sirens in your area? A. No. Q. Do you have a weather radio? A. No. Q. Did you have any warning that this storm was coming? A. Not -- I can't -- I actually can't remember. Q. And you weren't sitting there watching the TV or anything like that? A. I don't -- no, I was not watching the TV. Q. Didn't hear about it on the radio? Nothing? A. No. Q. So tell me -- tell me what you're doing and how this happened. A. I was just at the house, and honestly, it's like any -- you know, some of those storms, you can be at one place a quarter of a mile away and didn't think it was that bad, and then get the phone Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 16 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 26 call to say, hey -- you know, the neighbor says, hey, I think you've lost your -- your roof. And that's about exactly what happened, was -- Honestly, it was just, you know, wind was kicked up at the house and was raining hard, but it didn't take very long to get there and know that there was -- there had been a line of -- just south of us a mile that came through. And I guess, you know, that's -- I just took the phone call saying, hey, you've got -- you've got some damage. You've got -- you know, the grain bin's gone, Kurt. And be my cousin, who lives right across from the -- from the barn, itself, so -- Q. And what's your cousin's name? A. Chris Miller. Q. And so Chris called you and told you about the damage? A. Yep. Q. Did you guys go to the basement or anything? A. No. Q. Was there a basement at your house? A. Yes. Q. So what property, other than these hog buildings, did you own at the time that was damaged? Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 17 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 33 we -- you know, what we could. So was also told not to do any more than what we -- kind of hands off. Q. Who told you that? A. The -- once I contacted the insurance company. Q. And when did you contact them? A. The next morning. Q. The very morning after the storm? A. Yes. Q. When did they first -- somebody from the insurance company first come out? A. If I'm recalling, I would -- 4-30 is -- April 30th. I think the pictures that were taken was taken by the -- the guy that came from Indianola to do the claim. I had talked to somebody in Texas was my claim representative. Q. So when -- from the point in time then, when you had contact with the insurance company, and then they told you to no longer do anything to the scene, did the insurance company pretty much take charge of these buildings, as far as what was going to happen to them? A. Yes. Q. No longer in your hands? A. No longer in my hands. Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 18 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 34 Q. Now, I understand there were a couple of more storms that ended up coming through before these buildings were repaired that did more damage; is that your recall? A. That's correct. Q. Let's talk about the second storm. And I know I'm testing your memory. It's going to be hard to do this, but do you know when it happened? A. No idea when it happened. It's more rain -- it's more of the rain than it was of wind that -- that did damage. Q. So whenever that storm happened to come through, were the roofs still wide open? A. Yes. Q. The insurance company hadn't taken any steps to try and keep any -- any rain water from coming into those buildings? A. No. Q. After the first storm, other than the structural damage to the building, itself, was there any damage to any of your equipment or things that you wouldn't consider part of the building? A. The bulk bin was damaged. The piece of -- couple of the -- the roof came over on top of -- oh, if you could go back to the top, the front Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 19 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 35 page 051, that picture, the front bulk bin that shows that roof came over and -- and damaged that bulk bin. Q. How about anything within the building? Was anything within the building damaged? A. The pipe -- the gas line was damaged. I shouldn't say -- not the day of the storm it was not damaged. Nothing inside the barn was damaged. Q. After the first storm? A. After the first storm. Q. When did that gas line get damaged? A. As days went on and the roof was open and the rain kept falling. There was no -- you know, the ceiling was still in the -- the ceiling is still in the -- underneath there, it's got insulation, then a plastic ceiling. Q. And so going back then to that second storm, it was pretty much a heavy rain event and not a heavy wind event; is that fair? A. That would be more correct. Q. Do you -- do you have a memory of what additional damage was done after that second storm? A. After multiple days and after multiple storms, you could probably look up the rainfall in 2007 and know between when construction started and Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 20 of 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRIDGET A. SWANSTROM, CSR, RPR, RMR Bridget.swanstrom@gmail.com *** (641) 684-4109 36 when the storm happened. MR. LEVERENZ: Do you mean 2014? A. I'm sorry. 2014. From 2014 and -- from April 27th until we started repairs, the building sat this way until we got the clearance to -- to -- to start to take the roof off, and the repairs. And so my best recollection of 2014, in that -- in that summer is that we had multiple rain events, and the insulation got heavy. And just as a domino effect, things continued to -- every day you could drive by and watch it continue to deteriorate. Q. Was there a very distinct third storm, that you recall, that did damage? A. No. Q. Just from your memory, it was -- there was a pretty good rainstorm and then there were several rainstorms? A. It was just rain, rain, rain, you know. Q. So you said that this went on until you got clearance to do something to the roof. What was the holdup? A. We had -- The guy that was an independent -- I would call him an independent -- I'm not for sure if he worked for Republic Group, but it was -- come out of Indianola, to take the Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 21 of 57 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA 2 SOUTHERN INSURANCE ) 3 COMPANY, as subrogee of ) TONY LOWENBERG and as ) 4 subrogee of KURT ) LOWENBERG, ) 5 ) Plaintiff, )Case No. 6 )3:15-cv-00131-JEG- vs. )SBJ 7 ) CJG ENTERPRISES, INC., ) 8 f/k/a PRECISION ) STRUCTURES, INC., and ) 9 LESTER BUILDING SYSTEMS, ) LLC, )DEPOSITION OF 10 ) Defendants. )CLAUDE GREINER 11 _________________________) 12 THE DEPOSITION OF CLAUDE GREINER, 13 taken before Kira M. Stover, Certified 14 Shorthand Reporter of the State of Iowa, 15 commencing at 10:59 a.m., August 22, 2016, at 16 625 First Street Southeast, Suite 400, Cedar 17 Rapids, Iowa. 18 19 20 21 22 23 24 25 Reported by: Kira M. Stover, CSR Page 1 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 22 of 57 1 A P P E A R A N C E S 2 Plaintiff by: THADDEUS C. BARIA Attorney at Law 3 Suite 1800 123 North Wacker Drive 4 Chicago, Illinois 60606 5 CJG Enterprises, Inc., f/k/a Precision Structures, Inc. by: 6 JACK W. LEVERENZ Attorney at Law 7 1163 24th Street, Suite 200 Des Moines, Iowa 50311 8 Lester Building Systems, LLC, by: 9 MARK A. SCHULTHEIS 10 Attorney at Law 700 Walnut Street, Suite 1600 11 Des Moines, Iowa 50309 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 2 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 23 of 57 1 INDEX OF EXAMINATION 2 Examination by Page 3 MR. BARIA 5 4 5 6 7 8 9 INDEX OF EXHIBITS 10 Exhibits Marked on page 11 1 25 12 2 30 13 3 32 14 4 35 15 5 38 16 6 40 17 7 44 18 8 45 19 9 82 20 10 88 21 11 93 22 12 96 23 13 101 24 14 109 25 15 113 Page 3 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 24 of 57 1 INDEX OF EXHIBITS (CONTINUED) 2 Exhibits Marked on page 3 16 115 4 17 117 5 18 123 6 19 126 7 20 126 8 21 128 9 22 129 10 23 130 11 24 131 12 25 134 13 26 136 14 27 143 15 16 17 18 19 20 21 22 23 24 25 Page 4 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 25 of 57 1 A. Mary. 2 Q. How long have you lived in Kalona? 3 A. Since 2001, I think, is when we built the 4 house. 5 Q. So tell me about CJG Enterprises. What 6 is it? 7 A. CJG Enterprises is a -- well, when we 8 sold the assets of the company of PSI to 9 Chris Harmsen, he also wanted the name PSI, 10 so we gave him that, and we had to -- or my 11 accountant, attorneys, I don't know, said we 12 ought to have another company to replace that 13 name with. So lack of a better name, CJG is 14 Claude James Greiner's first, middle, and 15 last. 16 Q. Okay. What kind of business does CJG do, 17 if any? 18 A. Nothing. 19 Q. Okay. All right. So a moment ago you 20 were talking about an asset sale and a name 21 sale involving Precision Structures 22 Incorporated, and so I kind of want to back 23 up and kind of walk through that a little 24 bit. 25 What was Precision Structures Page 9 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 26 of 57 1 Incorporated? 2 A. Is the operating -- was the operating 3 company that I had to sell, construct, and 4 build buildings. 5 Q. Okay. And you were the owner of 6 Precision Structures Incorporated? 7 A. My wife and I. 8 Q. And how long did the two of you own the 9 company? 10 A. Give or take, 1983 is when we started it. 11 Q. And when did you cease ownership? You 12 mentioned a sale a moment ago. 13 A. The effective date -- I looked last 14 night -- was January 1, 2010. 15 Q. And you mentioned that PSI was sold to a 16 Chris Harmsen; is that correct? 17 A. Yes. 18 Q. Okay. And Harmsen is H-a-r-m-s-e-n? 19 A. Yes. 20 Q. The effective date of the sale was 21 January 1, 2010. You mentioned assets and a 22 name. Those would have been the assets and 23 the name Precision Structures Incorporated? 24 A. Yes. 25 Q. What assets were sold to Mr. Harmsen? Page 10 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 27 of 57 1 is it okay if I say PSI -- 2 A. Yes. 3 Q. -- for Precision Structures Incorporated 4 today? 5 A. Yes. 6 Q. All right. That will make this tongue 7 twister easier. 8 So PSI, when it started in 1983, what was 9 its business? 10 A. Constructing hog buildings mainly. 11 90 percent of it probably swine buildings. 12 Q. And did that remain true over the life of 13 PSI up until the point you sold the business 14 to Mr. Harmsen? 15 A. Yes. 16 Q. So about 90 percent of PSI's business 17 over the course of nearly 30 years, I guess, 18 was the building of swine buildings? 19 A. Yes. 20 Q. Okay. 21 A. Maybe more. Maybe -- 22 (Interruption by court reporter.) 23 A. Maybe even more than 90 percent, you 24 know, give or take, but it was at least 25 90 percent. Page 13 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 28 of 57 1 that PSI had erected the year before, in 2 2006? 3 A. I think so. 4 Q. Okay. And then what about the year 5 before, in 2005? Would that number still -- 6 A. Maybe a little less. Maybe a little 7 less. I'd have to look. 8 Q. You mentioned a little bit earlier in 9 your deposition that you had gone over some 10 paperwork last evening. Did you review any 11 documents to prepare for your deposition 12 today? 13 A. The only thing I looked at was -- my 14 attorney had sent them -- was the information 15 that was sent to you guys on the disk. I did 16 take a look at that, and then I reviewed 17 my -- what do you call them things I had to 18 sign? Your questions to me. 19 Q. Interrogatories? 20 A. Interrogatories. Yes. 21 Q. All right. I'm going to have this 22 introduced, marked as Exhibit Number 1. 23 (Deposition Exhibit No. 1 was 24 marked for identification by the 25 reporter.) Page 25 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 29 of 57 1 Q. Mr. Greiner, the court reporter has just 2 placed what's been marked Exhibit Number 1 in 3 front of you. 4 My question to you is, have you seen this 5 document before? 6 A. Yes. 7 Q. When did you see this document? 8 A. When I signed it. 9 Q. What is this document? 10 A. The contract with the Lowenbergs to build 11 the building. 12 Q. And the date of this contract is what? 13 A. 1/2/07. 14 Q. Now, your signature appears in the lower 15 left-hand corner above where your name 16 appears in type; is that correct? 17 A. Correct. 18 Q. All right. And you dated this contract 19 1/2/07 to the right of that? 20 A. Correct. 21 Q. Okay. Did you know Mr. Kurt Lowenberg 22 prior to January 2, 2007? 23 A. Yes. 24 Q. How did you know Mr. Kurt -- 25 A. Because I had sold him numerous other Page 26 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 30 of 57 1 building at the Kurt Lowenberg site? 2 A. Yes. We broke the buildings -- there's 3 probably two buildings there, and we broke 4 them in two contracts for -- simpler, because 5 they're constructed as single, individually. 6 MR. BARIA: This is number 2. 7 (Deposition Exhibit No. 2 was 8 marked for identification by the 9 reporter.) 10 Q. Mr. Greiner, you've just received from 11 the court reporter what's been marked as 12 Exhibit Number 2. And in your last answer, 13 you said that you broke the buildings down. 14 There were two buildings, and you broke them 15 into separate contracts. Exhibit Number 2 is 16 labeled south at the top. 17 To the best of your recollection, is this 18 the second contract that you entered with 19 Kurt Lowenberg for the other building at his 20 property? 21 A. Yes. 22 Q. And like Exhibit Number 1, you signed 23 this document on January 2, 2007; correct? 24 A. Yes. 25 Q. And like Exhibit Number 1, Mr. Kurt Page 30 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 31 of 57 1 get an order in to Lester's depending upon 2 discounts. We get -- as a dealer, as the 3 price of lumber went up, at every 30 days or 4 60 days we got a change plus or minus. So we 5 would have wanted to process the order and 6 get that order to Lester's, or we may have 7 held onto it for a little bit, because 8 construction I'm sure -- well, it didn't 9 start until spring, whenever spring is, but I 10 don't remember when we actually did start the 11 building. But we would process the building, 12 draw the blueprints, process the order to 13 Lester's for the building package, order all 14 the materials, rebar, line up the contractors 15 for electricians, whatever you do that was 16 needed to get the building built. 17 Q. Okay. So there were materials that went 18 into these buildings that Lester didn't 19 furnish; correct? 20 A. Correct. 21 Q. And generally what were the items that 22 Lester did furnish? 23 A. Did furnish? 24 Q. Yes. 25 A. They furnished the building package, Page 51 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 32 of 57 1 which included all the structure. 2 Q. Okay. 3 A. Everything. The wood part of the 4 building, the structure and steel and 5 whatever. 6 Q. So everything from the foundation up? 7 A. Everything from the foundation up, you 8 might say. 9 Q. Okay. Minus equipment and things -- 10 A. Yes. 11 Q. -- like that? 12 You mentioned that -- and I want to 13 talk in general terms. Part of the 14 processing the order, sounds like to me, was 15 drawing blueprints and putting together the 16 order to Lester and you said, you know, 17 buying out materials and subcontractors for 18 the other portions of the building that did 19 not come from Lester. 20 What else was part of that process? 21 A. Let me clarify drawing blueprints. The 22 blueprints that we drew were for concrete and 23 for equipment and that type of thing. We did 24 not draw the building blueprints. Lester 25 did. We would give them the size of what we Page 52 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 33 of 57 1 wanted, and they did everything from there. 2 Q. So would you provide the blueprints that 3 you drew for the layout of the building and 4 its equipment and its concrete to Lester and 5 then Lester would take those and then do 6 whatever it did with those to design and put 7 together a building package for that 8 structure? 9 A. No. They would not see our concrete 10 blueprints. They would just see a size of 11 the building. 12 Q. Okay. So -- 13 A. What it is and what loadings and what 14 require -- you know, the things that we were 15 asking for. Just a couple simple -- a few 16 simple questions, like color, what color the 17 trim was, just simple things like that so 18 that they could process the building -- the 19 actual building itself order. 20 Q. Okay. So I'm looking at Exhibit 21 Number 1, and it references a 71 foot 4 inch 22 by 261 foot square inch of PSI's 2,400-head 23 auto sort design finishing facility. 24 So am I understanding you correctly that 25 you would have told Lester that you wanted a Page 53 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 34 of 57 1 not something had been installed correctly? 2 A. No. I think this was the main one. 3 MR. BARIA: If you guys don't mind, 4 I've reached a stopping point. 5 (A recess was taken.) 6 BY MR. BARIA: 7 Q. So I think we left off at Exhibit 18, if 8 I'm not mistaken. Yes. I'm going to hand 9 you -- I'm going to hand you what I'll ask 10 the court reporter to mark as Exhibits 19 and 11 20. 12 (Deposition Exhibit Nos. 19 and 13 20 were marked for identification by 14 the reporter.) 15 A. We're done with 18? 16 Q. Yeah. 17 All right. So, Mr. Greiner, you've now 18 been handed what's been marked as Exhibits 19 19 and 20. Exhibit 19 should bear the Bates 20 label 000254, and Exhibit 20 should bear the 21 Bates labeled 414 omitting the zeroes. 22 Is that what you have in your hand? 23 A. Yes. 24 Q. All right. So to speed these along, PSI 25 also contracted to build two barns for Tony Page 126 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 35 of 57 1 Lowenberg; correct? 2 A. Tony and Dwight, yes. 3 Q. Okay. And these two exhibits, Exhibit 19 4 and Exhibit 20, are the contracts for the 5 building of those two barns between PSI and 6 the Lowenbergs, Tony and Dwight; correct? 7 A. Correct. 8 Q. And you signed both of these documents? 9 A. Correct. 10 Q. And who signed on behalf of the 11 Lowenbergs? 12 A. Looks like Tony Lowenberg and Dwight 13 Lowenberg on both of them. 14 Q. Okay. And similar to how this all came 15 together with Kurt Lowenberg, were Tony and 16 Dwight present at the time these contracts 17 were signed by you and by them? 18 A. Yes. 19 Q. And that would have been on January 2, 20 2007? 21 A. Correct. 22 Q. Okay. And by and large, the barns were 23 essentially the same, those that were sold to 24 Kurt and then those that were also sold to 25 Dwight and Tony? Page 127 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 36 of 57 1 Kurt Lowenberg was not to? 2 A. No. 3 (Deposition Exhibit No. 23 was 4 marked for identification by the 5 reporter.) 6 Q. Mr. Greiner, the court reporter has 7 handed you what's been marked on the first 8 page as Exhibit Number 23. It bears Bates 9 label 000378, and the second of the two pages 10 within Exhibit Number 23 bears the Bates 11 label 000496. 12 Is that consistent with what you have? 13 A. Yes. 14 Q. Okay. And what is your understanding of 15 what these two documents are that have just 16 been handed to you? 17 A. Warranty registration for the two 18 buildings they purchased. 19 Q. And this would be for Tony Lowenberg? 20 A. Yes. 21 Q. And that would be at 18725 Farson Road in 22 Hedrick? 23 A. 1875 {sic}, yes, Farson. 24 Q. 18725? 25 A. 725, excuse me, yes. Page 130 Veritext Legal Solutions www.veritext.com 888-391-3376 Case 3:15-cv-00131-RGE-SBJ Document 67-3 Filed 02/02/17 Page 37 of 57 Federal Rules of Civil Procedure Rule 30 (e) Review By the Witness; Changes. (1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. 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