Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Heichel v. Liberty Mutual Insurance

Court of Workers Compensation of Montana

February 9, 2018

CARMEN HEICHEL Petitioner
v.
LIBERTY MUTUAL INSURANCE Respondent/Insurer.

          ORDER DENYING PETITIONER'S MOTION IN LIMINE

          DAVID M. SANDLER JUDGE

         Summary: Petitioner moves for an order excluding her employer's former store manager's written statements - which recount that Petitioner stated she injured her shoulder when she tripped over her dogs - from evidence as inadmissible hearsay. Petitioner also asserts that the written statements are inadmissible because Respondent did not make the employer's former store manager available for a deposition or subpoena her after she told Respondent's attorney that she would not appear without a subpoena.

         Held: Petitioner's Motion in Limine is denied. This Court reserves ruling on whether the written statements are admissible under the hearsay exception for present sense impressions, M.R.Evid. 803(1), until trial, at which time Respondent will have the opportunity to lay the required foundation. Moreover, because the store manager no longer worked for Petitioner's employer, Respondent had no duty to produce the former store manager for a deposition and no duty to subpoena the store manager to a deposition Petitioner had scheduled.

         ¶ 1 This matter is before this Court on Petitioner Carmen Heichel's Motion in Limine, in which Heichel seeks an order excluding from evidence two written statements from her employer's former store manager recounting that Heichel said she hurt her shoulder when she tripped over her dogs. Heichel contends that the written statements are inadmissible hearsay. Respondent Liberty Mutual Insurance (Liberty) opposes Heichel's motion.

         FACTS

         ¶ 2 Heichel worked at Manito Super 1 Foods (Super 1) in Kalispell. In the fall of 2015, Deanna Guertin, f/k/a Deanna Hegdahl (Guertin) was the store manager at Super 1.

         ¶ 3 Guertin wrote a statement, dated October 13, 2015, and put it in Heichel's personnel file, stating:

Carmen Heichel came into my office to drop by her doctor's note about being off of work. I asked her what had happened and she said that [she] tripped over her dog and hurt her shoulder, after wards [sic], by the other dogs being on top of her. Mary Dahlke was also in the office at the time of this statement.

         Guertin wrote another statement, dated November 16, 2015, and put it in Heichel's personnel file, stating:

Carmen Heichel came to see me today with her FMLA paperwork in hand. She wanted to talk to me about her insurance and how cobra got started. She shared her concerns about how she was going to pay for the possible upcoming surgery. She said, at that point, that she didn't understand why work wasn't covering it because it was due to the donut frying. I reminded Carmen at that point, that she had told me and others at the time of the original accident, (at the beginning of October) that she had hurt her shoulder by tripping over her dogs. She said she knew that but maybe it was from donut frying. I just said again that she had told us it was from tripping over her dogs. She didn't say anything back to me.

         ¶ 4 On November 23, 2015, Heichel filed a First Report of Injury or Occupational Disease. She alleges she injured her shoulder and neck while lifting a bucket on September 21, 2015, in the course of her employment with Super 1.

         ¶ 5 Liberty denied liability for Heichel's claim, asserting that Heichel did not suffer a compensable injury at work. In the alternative, Liberty asserts that Heichel did not timely notify Super 1 of her alleged injury, pursuant to § 39-71-603, MCA.

         ¶ 6 On August 1, 2017, Liberty took Heichel's deposition. Liberty marked Guertin's written statement dated October 13, 2015, as Exhibit 8. Heichel did not object. When questioned about the contents of this written statement, Heichel testified that she gave Guertin her doctor's note, that Mary Dahlke was in Guertin's office, but that she did not remember telling Guertin that she hurt her shoulder when she fell over her dog. Liberty marked Guertin's written statement dated November 16, 2015, as Exhibit 9. Heichel did not object. When questioned about the contents of this written statement, Heichel testified that she and Guertin spoke about whether Heichel needed another MRI and surgery, but that she did not remember telling Guertin that she hurt her shoulder when she was frying or cranking donuts, and that she did not remember talking about falling over her dog.

         ¶ 7 On August 11, 2017, Heichel's attorney emailed Liberty's attorney regarding additional depositions. Heichel's attorney asked Liberty's attorney to produce the witnesses that still worked for Super 1. He further stated he intended to notice the deposition of Guertin, whom he knew no longer worked for Super 1, and said he would subpoena her if necessary.

         ¶ 8 On December 21, 2017, Liberty's attorney responded to a letter from Heichel's attorney and let him know she was available for Guertin's deposition on January 8, 2018. She also asked him to let her know if he was going to subpoena Guertin, or if she had agreed to appear.

         ¶ 9 On December 29, 2017, Heichel served a Notice of Perpetuation Deposition upon Liberty, giving notice that she was taking Guertin's deposition on January 8, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.