The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
This matter comes before the court on plaintiff's Motion  for Summary Judgment (on liability alone). The plaintiff American National Red Cross ("plaintiff") entered into a contract with Vinton Roofing Company, Inc. ("Vinton" or "defendant") to fix and replace an existing roof on a Red Cross building in Roanoke, Virginia. (Pl. Mem. 2, ¶ 1.) In sum, the plaintiff maintains, "[a]t the close of a day's work, Vinton failed to secure the work-in-progress to prevent leaks in the event of rain. It rained, and the Red Cross suffered significant property damage." (Pl. Mem. 1.)
Because there is no genuine issue of material fact barring summary judgment in favor of the plaintiff, plaintiff's motion for summary judgment (on liability alone) shall be granted.
The plaintiff concedes that there is a dispute with regard to the amount of damages to be awarded in the instant case. In accordance with Federal Rule of Civil Procedure 56, "[a]n interlocutory summary judgment may be rendered on liability alone, even if there is a genuine issue on the amount of damages." Fed. R. Civ. P. 56(d)(2). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mills v. Winter, 540 F. Supp. 2d 178, 183 (D.D.C. 2008) (Friedman, J.); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine if there is any genuine issue of material fact, this court is to view the record, facts, and reasonable inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157--59 (1970). A genuine issue of material fact is one which could affect the outcome of the litigation. Celotex, 477 U.S. at 322; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A. Applicability of Defendant's Responses to Plaintiff's Requests for Admissions Involving Defendant Vinton's Insurer, Harleysville Insurance
Harleysville Insurance ("Harleysville") investigated the circumstances of the roof leak on behalf of defendant Vinton. Vinton revealed in its amended responses to plaintiff's interrogatories that, in essence, Harleysville came to the conclusion that the "roofer [Vinton] poorly staged his work, rains came, roof not waterproofed, water entered Red Cross Bldg along 80' unprotected seam" (Def.'s Am. Resp. to Pl.'s Req. for Admis., No. 15.)
However, the defendant asserts that these pre-litigation admissions involving the Harleysville claims files ("Harleysville Admissions") are inadmissible hearsay evidence and that they are protected by the work product privilege. As such, defendant argues that the Harleysville Admissions may not be taken into consideration by this Court in ruling on the plaintiff's summary judgment motion.
The plaintiff, on the other hand, contends that "statements, and the findings and conclusions of Vinton's insurance investigators concededly acting 'on behalf of' Vinton, are admissible against Vinton" (Pl.'s Mot.  for Summ. J., 13-14.) The plaintiff thus maintains that it is neither work product nor inadmissible hearsay.
Hearsay is generally defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Harleysville's conclusions about the roof leak are being offered to prove the truth of the matter asserted, a truth the plaintiff is seemingly relying upon. Thus, the Harleysville Admissions are inadmissible hearsay, unless one of the exceptions to the hearsay rule applies.
Although the plaintiff has not specifically addressed applicable exceptions, plaintiff continually has referenced Harleysville as Vinton's "agent" and as acting "on behalf of" Vinton, seemingly attempting to establish that Harleysville is in fact Vinton's agent. An exception to the general hearsay rule is that "a statement by a party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not hearsay. Fed. R. Evid. 801(d)(2)(D). However, Vinton never concedes that Harleysville was ever acting as Vinton's agent, stating, ...