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Chateau Village North Condominium Association v. American Family Mutual Insurance Co.

United States District Court, D. Colorado

April 13, 2016

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Defendant.


PHILIP A. BRIMMER United States District Judge

This matter is before the Court on defendant’s Motion to Strike the Expert Opinions of Plaintiff’s Expert Mr. Garth Allen [Docket No. 55].


This case arises out of an insurance coverage dispute. Plaintiff is responsible for the operation, maintenance, preservation, and control of the Chateau Village North Condominiums (“Chateau Village Condos”) in Boulder, Colorado. Docket No. 3 at 2, ¶ 4. Defendant provided insurance coverage to plaintiff pursuant to a one-year commercial property and liability policy effective February 1, 2013. Id., ¶ 6. Following severe rainstorms in September 2013 in Boulder, on September 12, 2013 Chateau Village Condos sustained water damage. Id., ¶ 8. Plaintiff made a claim under the policy. Id., ¶ 9. On September 20, 2013, defendant denied plaintiff’s claim. Id., ¶ 10.

Plaintiff has designated Professor Garth Allen as an insurance expert to support its breach of contract and bad faith claims. See Docket No. 55 at 2. Prof. Allen has written a report interpreting the policy and opining that the Condominium Enhancement Endorsement is not subject to the anti-concurrent causation clause in the policy. Docket No. 55-1 at 6-7. Prof. Allen also opines that defendant’s conduct in investigating plaintiff’s claim was unreasonable and contrary to insurance industry practices. Id. at 8-11. Finally, Prof. Allen opines that defendant’s conduct satisfies the standards for claims of common law and statutory bad faith denial of insurance benefits. Id. at 11.


Rule 702 of the Federal Rules of Evidence provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Rather, the Court must “perform[] a two-step analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). After determining whether the expert is qualified, the specific proffered opinions must be assessed for reliability. See id.; Fed.R.Evid. 702 (requiring that the testimony be “based on sufficient facts or data, ” be the “product of reliable principles and methods, ” and reflect a reliable application of “the principles and methods to the facts of the case”). Where an expert relies on experience, the expert “must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” United States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir. 2014) (quoting Fed.R.Evid. 702, advisory committee notes). In examining an expert’s method, however, the inquiry should not be aimed at the “exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.” Daubert, 509 U.S. at 597. It is the specific relationship between an expert’s method, the proffered conclusions, and the particular factual circumstances of the dispute that renders testimony both reliable and relevant.

While plaintiff, as the proponent of the challenged testimony, has the burden of establishing admissibility, the proffer is tested against the standard of reliability, not correctness; it need only prove that “the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied.” Crabbe, 556 F.Supp.2d at 1221.

In sum, assuming an objection is properly made, expert testimony must be excluded if the expert is unqualified to render an opinion of the type proffered, if the opinion is unreliable, if the opinion will not assist the trier of fact, or if the opinion is irrelevant to a material issue in the case.


Defendant challenges Prof. Allen’s opinions on two grounds: (1) Prof. Allen’s “opinions in Section 1 of his Report regarding the construction of the insurance policy to include coverage for sewer back-up damages are legal opinions and therefore inadmissible”; and (2) Prof. “Allen’s opinions in Sections 2, 3 and 4 of his Report are also inadmissible as a matter of law” because they are “his own factual conclusions based on his application of the available evidence ...

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