THE ATCHISON, TOPEKA & SANTA FE  )
RAILWAY COMPANY,                 )
                                 )
                Plaintiff,       )
                                 )
v.                               )    CASE NO. 94CV1464
                                 )
STONEWALL INSURANCE COMPANY,     )
et al.,                          )
                                 )
                Defendants.      )
_________________________________)

International Insurance Company filed a motion for leave to file a sur-reply to Santa Fe's reply memoranda on the scope of coverage and on the occurrence issue. As conceded by International, Shawnee County District Court Rule 3.202(b) states that sur-replies are not allowed. The court, therefore, denies the request for a sur-reply and strikes the sur-reply filed by International from the record. In the alternative, International requested a briefing schedule for oral argument. Subsequent to the motion, the court did set aside one full day (March 16, 1999) for argument on the various summary judgment motions.

London Market Insurers filed a motion to strike Santa Fe's cross-motion for partial summary judgment on the fortuity and "known loss" defenses. Santa Fe argues in response that the court (at that time Judge Jackson) set no deadline for filing summary judgment motions. London Market provides no support for their contention that the court ordered all motions for summary judgment to be filed by September 15, 1998. The court instead set a deadline for the insurers' responses to Santa Fe's motions regarding choice of law and scope of coverage. Therefore, this court finds that Santa Fe's cross-motion for partial summary judgment on fortuity and "known loss" is timely filed and that London Market Insurer's motion to strike Santa Fe's cross-motion should be denied.

International Insurance Company filed a motion to strike the affidavits of Robert Attridge, John R. Fabry, Steven Hanks, and David Pels. International alleges that the four affidavits "should be stricken because the affidavits: (1) violate the best evidence rule, (2) constitute inadmissible hearsay, and (3) contradict the declarants' deposition testimony."

The best evidence rule is codified in K.S.A. 60-467. It provides that no evidence other than the writing itself is admissible unless certain exceptions are met. One of those exceptions is K.S.A. 60-467(F) which provides that the other evidence is admissible if the court finds as follows: "calculations or summaries of content are called for as a result of an examination by a qualified witness of multiple or voluminous writings, which cannot be conveniently examined in court, but the adverse party shall have had a reasonable opportunity to examine such records before trial, and such writings are present in court for use in cross-examination, or the adverse party has waived their production, or the judge finds their production is unnecessary."

While the issue in this case is raised at the summary judgment stage, the components of the exception (F) appear to be present. The affidavits do contain in part a summary of the content of the complaints in which each of the affiants were involved. The writings (ie. the complaints and claims) were voluminous, cannot be conveniently examined in court, were available to the adverse parties, and apparently were present for use in cross-examination during the depositions of the affiants.

In addition, the information provided in the affidavits extends beyond any summary or characterization of the complaints and claims. The affiants were all attorneys or claims agents involved in the claims process or litigation of NIHL claims and each of them provided insight as to the legal theories involved in these claims..

In addition, International Insurance Company argues that the affidavits constitute inadmissible hearsay. However, the statements that International refers to are taken out of context. Although several of the affiants refer to "all NIHL claims or complaints," if read in context the reference to the claims were to those in which the affiant had been involved and/or had personal knowledge. Therefore, this court does not find that the affidavits are inadmissible hearsay.

Finally, International argues that the affidavits contradict the declarants' deposition testimony and, therefore, should be stricken. The four affidavits submitted by Santa Fe included statements regarding the allegations of the NIHL claimants. When the declarants were deposed each of them were questioned about the statements they made in the affidavits. None of the affiants denied or disavowed statements made in their affidavits. Instead the affiants elaborated and explained the statements made in their affidavits. This court does not find that there were contradictions or inconsistencies that would warrant the striking of the affidavits. See Bird v. Kansas Department of Transportation, 23 Kan. App. 2d 164, 169-170; 928 P.2d 915, 919-920 (1996).

Therefore, for the reasons stated above this court denies International's motion to strike the affidavits of Robert Attridge, John R. Fabry, Steven Hanks, and David Pels.

IT IS SO ORDERED.

Dated this 24th day of July , 2000.

 
_________________________
Nancy Parrish
Judge, Third Judicial District
Division Fourteen

I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 24th day of July , 2000 to the following:

 
Weston W. Marsh
David V. Goodsir
Freeborn & Peters
311 S. Wacker Drive
Suite 3000
Chicago, Illinois 60606

 
Steve R. Fabert
Fisher, Patterson, Sayler & Smith
3550 SW 5th Street
Topeka, Kansas 66601

 
Thomas M. Ryan
Bollinger, Ruberry & Garvey
Citicorp Center
500 West Madison Street
Suite 2300
Chicago, Illinois 60661

 
Arthur A. Glassman
Michael E. Francis
Sloan, Listrom, Eisenbarth, Sloan & Glassman
714 Capitol Federal Building
Topeka, Kansas 66603

 
Corliss S. Worford
Richard M. Watson
Lord, Bissell & Brook
One Atlantic Center
1201 West Peachtree Street
Suite 3700
Atlanta, Georgia 30309

 
Daniel E. Murphy, II
Gilberg & Kiernan
1250 Eye Street, N.W.
Suite 600
Washington, DC 20005

 
Steven W. Cavanaugh
Fisher, Cavanaugh & Smith
534 Kansas Avenue
Suite 1035
Topeka, Kansas 66603

 
Eric C. Young
Dunham Boman & Leskera
103 East B Street
Belleville, Illinois 62220

 
Paul E. Escobar
German, Gallagher & Murtagh
The Bellevue
Fifth Floor
200 South Broad Street
Philadelphia, PA 19102

 
Richard W. Bryan
Jackson & Campbell
South Tower
One Lafayette Center
1120-20th Street, NW
Washington, DC 20036

 
Richard V. Eckert
5601 SW Barrington Court South
Topeka, Kansas 66614

 
Stacy S. Freel
Brand & Novak
135 South LaSalle Street
Suite 3700
Chicago, Illinois 60603

 
____________________________
Norma J. Dunnaway
Administrative Assistant