USCA11 Case: 22-12626 Document: 26-1 Date Filed: 08/04/2023 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12626
Non-Argument Calendar
____________________
ALEX HAND,
EMILY DRUMMOND HAND,
Plaintiffs-Appellants,
versus
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 6:19-cv-00453-LSC
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2 Opinion of the Court 22-12626
____________________
Before JORDAN, BRANCH, and BLACK, Circuit Judges.
PER CURIAM:
This case arises from an incident on June 30, 2017, when a
tree fell on a home owned by Alex and Emily Hand in Jasper, Al-
abama. On February 11, 2019, the Hands filed a civil action
against Allstate Insurance Company for breach of contract and
bad faith in Alabama state court, which Allstate later removed to
the Northern District of Alabama based on diversity jurisdiction.
In Allstate’s answer, it asserted a variety of affirmative defenses,
including misrepresentation after loss. The case proceeded to a
four-day jury trial. The jury found in favor of Allstate—finding
that Allstate did not breach the insurance contract or operate in
bad faith—and that the Hands made material misrepresentations
of their claim to Allstate.
The Hands contend the district court abused its discretion
by (1) allowing evidence on Allstate’s affirmative defense of mis-
representation after loss; (2) precluding the testimony of Jess
Drummond; and (3) allowing disclosure to the jury that the
Hands originally retained certain experts called by Allstate. We
address each issue in turn and, after review, affirm the district
court.
I. MISREPRESENTATION AFTER LOSS
The misrepresentation after loss defense was asserted based
on Allstate’s Additional Living Expenses (ALE) payments to the
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22-12626 Opinion of the Court 3
Hands. Allstate asserted the Hands misrepresented the amount
spent on ALE. The Hands contend the district court erred in al-
lowing evidence of misrepresentation after loss, asserting they
were denied a fair opportunity to discover the facts known to All-
state to support the defense.
A. Additional Living Expenses
Allstate approved a lease for the Hands to stay in a four-
bedroom, two-bath house for $4,500 per month while they were
out of their home. The lease was with Gloria Redus, whom All-
state later learned was Emily Hand’s mother. Redus came up
with the $4,500 amount by “look[ing] at how much it cost [Emily
Hand] to stay at the Holiday Inn for two little tiny rooms that had
beds in it and a bath, and they were over $150 a day. And they
had to rent two of them.” The lease with Redus provided pay-
ments could be made in cash or check. On the same day the lease
was supplied to Allstate, the Hands submitted a copy of a check
Emily Hand wrote to Redus for $11,000—$4,500 for the first
month’s rent, $4,500 deposit, and $2,000 pet deposit. However,
there is no evidence that check was ever cashed. Emily Hand tes-
tified her mother never cashed the check, and she went and got
her mother $11,000 in cash instead. Allstate continued paying the
Hands $4,500 per month for around twenty months, totaling
$85,500. There was no evidence that any check during that twen-
ty-month period was paid to a landlord. Redus testified she
“like[d] to deal in cash,” and Emily Hand would bring her $4,500
in cash each month for rent. Additionally, Redus testified the
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4 Opinion of the Court 22-12626
Hands quit paying her rent on the property although they were
still living there once Allstate cut off ALE expenses.
The Hands also submitted invoices for laundry done at a
laundromat, because the Hands did not have a washer and dryer
available to them. Emily Hand called Allstate regarding an option
for washing clothes because the Hands were not allowed to use
the $5,000 washer and dryer in their rental home. Redus testified
she “did not want [Emily Hand] using my washer and dryer.”
This led to Allstate making an $800 monthly payment to the
Hands for laundry charges—totaling close to $17,000 during the
ALE period. When Allstate inquired if the Hands could move
their own washer and dryer into the rental home, the Hands stat-
ed the landlord would not allow them to move their washer and
dryer. When the Hands’ bank records were subpoenaed, only
three checks totaling $1,100 to the cleaners were found. Emily
Hand testified that the rest of the over $15,000 was paid in quar-
ters to a laundromat.
The Hands also submitted invoices for around $100,000 for
rugs and drapes damaged in the home. Allstate paid for these
items that the Hands stated were damaged as a result of the loss.
However, Allstate never inspected the items, and when Allstate
inquired, the Hands had already thrown them away. Emily Hand
sent the rugs to a business in Birmingham to be inspected, and
Hand made a report they were not salvageable.
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22-12626 Opinion of the Court 5
B. District Court’s Evidentiary Ruling
At the beginning of trial, the district court noted the Hands’
pending motion to prevent Allstate from presenting any evidence
of misrepresentation, acknowledging that Allstate’s corporate
representative was not allowed to answer specific questions about
the misrepresentation defense because the investigation was on-
going. However, the court asked the Hands’ counsel to inform
him “what did they not . . . know that you could have obtained
from a 30(b)(6) witness.” The court stated:
[I]t was very clear to me from the objections filed in
October of ’21 from my summary judgment ruling,
from various other motions that have been asserted,
that this was known to be an issue in the case, that
Allstate, the defendant, felt like your client was not
telling the truth about the forty-five hundred dollar
[per month] rental claim and the seven hundred dol-
lar[s per month] to do her laundry and the washing
and drying machines of her mother, am I missing
that? . . . .
So you need to tell me what it is you were not able
to get from them as far as either the discovery or in-
formation or testimony so that I can consider keep-
ing them from asserting that defense.
Counsel responded that while they knew of the existence
of the affirmative defense, Allstate never answered the question of
what facts they had to support the misrepresentation after loss de-
fense. However, they knew “this broad category, we think there
is a problem with the rent, we think there is a problem with the
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6 Opinion of the Court 22-12626
laundry, we think there is a problem with the rugs.” The Hands’
counsel agreed that in February or March of 2021, they had a re-
port from an expert of Allstate that “indicated that he believed the
rental amount was way over the amount that should have been
paid.” However, the Hands never took that expert’s deposition.
They also knew from their own depositions that Emily Hand was
paying her mother cash for the $4500 per month rental, which the
court noted “could be used to argue that your client was lying.”
Further, Emily Hand’s bank records, which were produced, show
no checks that she claimed under oath were paid. Allstate de-
posed Emily Hand’s mother, who claimed there were no bank
records, everything was handled in cash. Because the district
court found the Hands had access to all the evidence that would
be used to show misrepresentation after loss, the district court al-
lowed the evidence.
C. Analysis
While the Hands argue the district court “shift[ed] the bur-
den to the Hands to establish prejudice for Allstate’s discovery
abuses,” Allstate did not abuse discovery. Although Allstate did
object to certain questions at the corporate representative’s depo-
sition because of the ongoing investigation with regard to ALE,
the Hands failed to articulate what they did not have access to
that they could have obtained from a 30(b)(6) witness.
The evidence relied upon for the misrepresentation defense
came from other witnesses at trial including Mark Burchfield (the
Hands’ dwelling adjuster), Emily Hand, and Gloria Redus. The
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22-12626 Opinion of the Court 7
Hands point to no evidence about the $4,500 paid in cash each
month to Redus, the almost $17,000 in laundry expenses, and
around $100,000 in damage to rugs and drapes that they did not
already have access to. It was not an abuse of discretion for the
district court to allow this evidence. See United States v. Clay,
832
F.3d 1259, 1314 (11th Cir. 2016) (reviewing for abuse of discretion
the district court’s evidentiary decisions).
II. WITNESS PRECLUSION
The Hands contend the district court abused its discretion
in excluding the testimony of Jess Drummond based on the
Hands’ failure to disclose him. Jess Drummond is Emily Hand’s
ex-husband and a former owner of the home on which the tree
fell. The Hands did not disclose Drummond as a witness during
the first discovery period or the reopened discovery period. He
was not disclosed until months after discovery was closed. They
argue the fact Drummond was identified during the deposition of
Emily Hand as a prior owner of the house who had participated
in renovations was effective supplementation. The district court
disagreed and disallowed Drummond’s testimony.
Rule 26 of the Federal Rules of Civil Procedure requires a
party to disclose “the name . . . of each individual likely to have
discoverable information—along with the subjects of that infor-
mation—that the disclosing party may use to support its claims or
defenses, unless the use would solely be for impeachment.” Fed.
R. Civ. P. 26(a)(1)(A)(i). Rule 26(e) requires a party who has made
a disclosure under Rule 26(a) to supplement or correct its disclo-
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8 Opinion of the Court 22-12626
sure if it learns the disclosure is incomplete or incorrect if the ad-
ditional or corrective information has not otherwise been made
known to the other parties during the discovery process. Fed. R.
Civ. P. 26(e).
The district court did not abuse its discretion in not allow-
ing Drummond to testify. See Romero v. Drummond Co.,
552 F.3d
1303, 1322 (11th Cir. 2008) (holding the district court did not
abuse its discretion in excluding testimony from a late-disclosed
witness where the plaintiffs lacked a good explanation for the de-
lay in disclosing the witness). The Hands knew of the existence of
Drummond throughout discovery and did not disclose him—
even through an extended discovery period. Emily Hand’s men-
tion of him during her deposition was not effective supplementa-
tion. It was not an abuse of discretion for the district court to
preclude Drummond’s testimony at trial.
III. RETENTION OF EXPERT WITNESSES
The Hands moved in limine to preclude Allstate from call-
ing engineers originally retained by the Hands, but later with-
drawn, or if called by Allstate, from disclosing who hired the en-
gineers. During the claims process, the Hands consulted several
engineers to inspect the premises, but the Hands did not intend to
call them as witnesses. Allstate reimbursed the Hands for the ex-
pense incurred in retaining the engineers. The district court al-
lowed Allstate to call those engineers originally retained by the
Hands, but did not allow Allstate to introduce evidence that the
Hands originally retained them.
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22-12626 Opinion of the Court 9
A. Patrick Edwards’ Testimony
During the testimony of one of the engineers, Patrick Ed-
wards, the Hands asked if he was being paid for his testimony.
Edwards answered, “I hope I am. I wasn’t paid for the original
inspection[.]” After the conclusion of Edwards’ testimony, the
district court invited the attorneys to a sidebar, inquiring whether
the Hands paid Edwards’ engineering firm for their services. The
Hands’ counsel responded that he did not know, and the court
stated if Edwards was not paid, it was “fair game for Allstate to
say we paid her to pay them. Right now it appears that Allstate
did not pay the guy.” The court opted to give the following in-
struction to the jury:
Ladies and gentlemen, I need to clear one thing up.
Allstate did not hire the last witness to do the initial
inspection and was not then responsible for paying
him. He made some statement that he wasn’t paid.
And I don’t want you to—I don’t want to leave that
hanging there.
The Hands contend the district court erred by giving the
curative instruction to Edwards’ non-responsive answer, because
“[t]he instruction leaves only the conclusion that the Hands hired
[Edwards] and did not pay him.” They contend allowing the wit-
ness to open that door was “explosive and prejudicial error” and
merits setting aside the verdict and granting a new trial.
We disagree. Assuming the district court was required to
limit evidence of retention of experts, see Peterson v. Willie,
81 F.3d
1033, 1037-38 (11th Cir. 1996), the district court’s curative instruc-
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10 Opinion of the Court 22-12626
tion did not leave only the conclusion that the Hands hired Ed-
wards and did not pay him. Instead, it clarified that Allstate did
not hire Edwards and was not responsible for paying him. While
the jury could infer the Hands hired Edwards and did not pay
him, it is not the only conclusion that could be made from the cu-
rative instruction. We cannot say that Edwards’ remarks and the
information given in the curative instruction “were such as to im-
pair gravely the calm and dispassionate consideration of the case
by the jury.” See Allstate Ins. Co. v. James,
845 F.2d 315, 318 (11th
Cir. 1988).
B. Exhibit 58
During trial, Allstate offered “Defendant’s Exhibit 58”
which was a report from Alabama Foundation Specialists (AFS).
The Hands objected because the exhibit contained a reference
that AFS recommended the Hands contact Carlysle Gibbs, which
is one of the engineering firms the Hands originally retained.
When cross-examining Emily Hand regarding AFS, Allstate’s
counsel inquired whether she recalled telling AFS that she would
be hiring an engineer. The Hands’ counsel requested a sidebar
because Allstate was “slip[ping] in there the thing about the engi-
neer. When he slips that in there . . . he can’t get into prior reten-
tion.” When Allstate resumed cross-examination of Emily Hand,
Allstate’s questioning and Hand’s answers showed that AFS di-
rected Hand to hire an engineer, and that Hand did not initiate
that conversation with AFS.
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Then, during closing arguments, Allstate presented an un-
redacted version of Defendant’s Exhibit 58. Right after the exhibit
was presented, the Hands’ counsel stated, “[p]ull that down.” All-
state’s counsel apologized and took the exhibit down. The
Hands’ counsel approached and objected that Allstate had shown
“[t]he retention—the part of the AFS records that you said were
going to be excluded. And they agreed to redact them and now
they have shown them to the jury.” The judge found the exhibit
“was up for a matter of less than ten seconds . . . [and there were]
easily over one hundred words from the top down to the bottom
before they would get to, I referred David Carlysle.” The district
court noted it had already stated it was a close call whether the
information should be redacted, and had only decided not to let
Allstate go into who retained the experts “out of an abundance of
caution.” The Hands’ attorney declined the judge’s offer to say
something to the jury, and closing arguments resumed.
The Hands contend a new trial is warranted because All-
state twice violated the district court’s order excluding evidence
of expert retention.
The Hands’ argument is without merit. As to the cross-
examination of Emily Hand, Allstate did not disclose anything
about retention of the experts testifying at trial. Allstate merely
asked if AFS recommended she hire an engineer, and then further
questioning clarified AFS directed Hand to hire an engineer, and
that Hand did not initiate that conversation with AFS.
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12 Opinion of the Court 22-12626
As to an unredacted Exhibit 58, the district court was cor-
rect in finding the exhibit, in the middle of a lengthy paragraph,
states “I referred David Carl[y]sle . . . .” The district court ob-
served “there is no way a human being could read down and get
to that part of it,” in the time the exhibit was visible. The exhibit
was up so briefly that it is doubtful the jury had time to read the
offending four words, which were buried amid several other lines
of text. Further, there is no evidence Allstate intentionally
showed the exhibit. We conclude the brief display of the unre-
dacted exhibit did not affect the Hands’ substantial rights, and a
new trial is not warranted. See Ad-Vantage Tel. Directory Consult-
ants, Inc. v. GTE Directories Corp.,
37 F.3d 1460, 1465 (11th Cir.
1994) (explaining a party is entitled to a new trial if the jury was
influenced by inadmissible evidence because it affects a party’s
substantial rights).
IV. CONCLUSION
The district court did not abuse its discretion by (1) allow-
ing evidence on Allstate’s affirmative defense of misrepresenta-
tion after loss; (2) precluding the testimony of Jess Drummond;
and (3) allowing disclosure to the jury that the Hands originally
retained certain experts called by Allstate.
AFFIRMED.
