In yet another “which came first, the wind or the water” debate over hurricane damage, the Fifth Circuit Court of Appeals recently analyzed whether so called “self-serving” affidavits could be used to get the case past summary judgment and on to the jury.
In C.R. Pittman Const. Co., Inc. v. Nat’l Fire Ins. Co. Of Hartford, 10-30950, 2011 WL 4509554 (5th Cir. Sept. 30, 2011), Hurricane Katrina damaged the Pittman Construction Company’s insured construction equipment. Pittman claimed that wind and rain damaged the equipment, but the insurance company claimed that floodwaters caused the damage. As one might assume from the relative positions of the parties, wind and rain were covered under the insurance policy, but flood was not. Both parties sought to resolve the case before trial through summary judgment. The insurance company supported its motion with an affidavit from an inspector that testified that the damage could have only been caused by submersion in water. Pittman supported its motion with an affidavit from its owner who testified that he was present when the storm started and that he watched the wind and rain damage the equipment before the flood arrived. The trial court granted summary judgment for the insurance company partly on the basis that Pittman’s affidavits were “self-serving.”
Pittman appealed, and the Fifth Circuit Court of Appeals reversed, reasoning:
To the extent that the district court chose not to consider the Pittman affidavits because they were “self-serving,” this ruling was in error. A party’s own testimony is often “self-serving,” but we do not exclude it as incompetent for that reason alone. [Citation omitted] (“[M]erely claiming that the evidence is self-serving does not mean we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent, conclusional.”) Instead, an affidavit based on personal knowledge and containing factual assertions suffices to create a fact issue, even if the affidavit is arguably self-serving. [Citation omitted] (“Provided that the evidence meets the usual requirements for evidence presented on summary judgment—including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there is a genuine issue for trial—a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts.”); (“[A] ‘party’s own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment.’”); [citation omitted] (“A court may not disregard evidence merely because it serves the interests of the party introducing it.”); [citation omitted] (“As long as an affidavit is ‘based upon personal knowledge and sets forth facts that would be admissible in evidence,’ … such averment of a party is legally competent to oppose summary judgment, notwithstanding its inherently self-serving nature.” (Internal citation omitted)). If all “self-serving” testimony were excluded from trials, they would be short indeed.
Pittman’s affidavits assert that he was present at the warehouse and saw the wind tear off parts of the roof and siding of the building, thereby allowing rain to enter. The affidavits also asserted that it was well-known in the industry that the generators were sensitive to water and would be destroyed if certain parts became wet. Although arguably “self-serving,” the affidavits are not wholly conclusory, are based on personal knowledge, and create a fact issue as to the cause of the damage to the equipment. [Citation omitted] (finding that the district court erred in disregarding “self-serving comments” that created a fact issue; noting that “[q]uestions of credibility should not normally be decided by means of summary judgment but should be left for the trier of fact”). Accordingly, the district court erred in disregarding the Pittman affidavits. Because the Pittman affidavits created a fact issue as to the sole cause of damage to some of the equipment, summary judgment for National was improper.
What is interesting is how the trial court decided that Pittman’s affidavits were self-serving, but the insurance company’s were not. The insurance company only provided one affidavit of a mechanical specialist who did not inspect the damage until over a year and a half after Hurricane Katrina. When “self-serving” is defined as, “serving one’s own interests often in disregard of the truth or the interests of others,” the insurance company’s affidavit that found flooding was the sole cause of loss would have been as equally self-serving as Pittman’s, yet the trial court concluded that only Pittman’s affidavits were self-serving.
In the end, the appellate court held that such “self-serving” testimony could not be excluded merely on that basis, and reversed the summary judgment in favor of the insurance company. The case was sent back to the trial court for further proceedings, moving the case on toward the jury.