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ADAMS v. ALLSTATE INS.

October 4, 1989

H.M. ADAMS, SR., PLAINTIFF
v.
ALLSTATE INSURANCE, DEFENDANT



The opinion of the court was delivered by: WOODS

 HENRY WOODS, UNITED STATES DISTRICT JUDGE

 INTRODUCTION. On October 11, 1988, plaintiff, H.M. Adams, Sr., filed the complaint at bar in Jackson County Circuit Court. His complaint, the facts of which sprang from a May 23, 1988 fire which damaged his residence and its contents, was predicated upon five counts: (1) defendant, Allstate Insurance, failed to pay his claim for damage to his residence; (2) it refused to pay his claim for damage to his personal property; (3) it refused to honor his claim for living expenses incurred following the fire; (4) it denied the foregoing claims in bad faith; and (5) its conduct was so outrageous as to cause him severe emotional distress. On November 15, 1988, defendant removed the case to federal court. On that same day, it filed an answer in which it acknowledged contesting plaintiff's claims for damage to his residence and for living expenses. *fn1" It alleged, however, that its refusal to honor the claims was justified because he had no insurable interest in his residence. *fn2"

 By Letter/Order dated December 9, 1988, the Court scheduled this case for trial the week beginning October 9, 1989. The Court included the following admonition in that Letter/Order:

 
Motions submitted after the deadline of the Pre-Trial Information Sheets, [September 9, 1989], may be denied solely on the basis of having been untimely filed, and all Motions/Pleadings must be filed sufficiently in advance of that date to allow a timely response.

 On September 22, 1989, plaintiff filed a motion to amend his complaint so that he might dismiss his causes of action for bad faith and emotional distress. Defendant informed the Court that it had no objection, and the motion was granted allowing him to dismiss counts four and five. See Order of September 28, 1989.

 The Court has been informed by both parties that the only question to be resolved is whether plaintiff had an insurable interest in his residence. The relevant facts on this question are not in dispute, and the Court therefore makes the following disposition of defendant's motion for partial summary judgment.

 SUMMARY JUDGMENT. "A motion for summary judgment, [or partial summary judgment], should be granted if, in viewing the evidence in the light most favorable to the non-moving party, 'there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law.'" Nelson v. City of McGehee, 876 F.2d 56, 57 (8th Cir. 1989) (citation omitted). See also Fed.R.Civ.P. 56. The non-moving party, in opposing the motion, must be given the benefit of all favorable factual inferences. See Holloway v. Lockhart, 813 F.2d 874, 878 (8th Cir. 1987). When a motion for summary judgment is made and supported as provided for by Rule 56, the non-moving party may not "'rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Nelson v. City of McGehee, 876 F.2d at 57 (citation omitted). "Only disputes over facts that may affect the outcome of the lawsuit under the governing substantive law will properly preclude the entry of summary judgment." Id. (citation omitted).

 FACTS. As noted, defendant has submitted a Local Rule 29 statement of facts in support of its motion for partial summary judgment. The facts outlined in that statement are taken from the fifteen exhibits supporting its motion. Plaintiff does not challenge the veracity of the documents, save one. His challenge is to Exhibit 9, the Commissioner's Report of Sale dated February 19, 1988.

 
Exhibits 1 through 12 [actually 15] attached to defendant's Motion for Partial Summary Judgment filed herewith are true and correct copies of documents relating to the real property in this suit with the exception of Exhibit No. 9 being the Commissioner's Report of Sale purportedly dated February 19, 1988 signed by Don Daniels Commissioner in Chancery. That Exhibit 9 does not contain a true recitation of the facts concerning the sale which was held on February 16, 1988 by Don Daniels Commissioner in Chancery and is a false and misleading report of the events which occured on February 16, 1988. [Sic].

 Plaintiff's Statement of Facts at 1. The foregoing assertion is buttressed by the affidavit executed by Mr. Daniels. In this affidavit, he testifies to certain facts surrounding the sale of plaintiff's residence that are not reflected in the documents on file with the Jackson County Clerk. It is this affidavit that defendant has asked the Court to strike. Plaintiff has now responded to that motion, but his response is not persuasive. For the reasons that follow, the motion to strike is granted.

 Fed.R.Civ.P. 56(e) provides, in part:

 
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is ...

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