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Desizlets v. GEICO Casualty Co.

United States District Court, D. Colorado

April 9, 2018




         This matter is before the Court on Defendant GEICO Casualty Company's Motion to Strike Plaintiff's Expert Witness Dale Crawford. (Doc. # 90.) For the reasons outlined below, the Court grants in part and reserves ruling on the remainder of Defendant's Motion to Strike.

         I. BACKGROUND

         The Court detailed the factual background of this case in its Order Denying Defendant's Motion for Summary Judgment. (Doc. # 89.) That Order is incorporated by reference, and the facts explained therein need not be repeated. The Court recounts only the facts necessary to address Defendant's instant Motion to Strike.

         As the Court explained in its summary judgment order, the resolution of this case will turn on whether Plaintiff Brian Rod Desizlets' insurance policy was in effect at the time of a motor vehicle collision at approximately 4:00 PM on February 25, 2013. See (id. at 5.) Plaintiff asserts that he made payment sufficient to reinstate coverage at 9:23 AM on the morning of the accident through Defendant's automated phone system. (Doc. # 82 at 2-3.) He cites his credit card statement and deposition testimony of bank employees and Defendant's employees as evidence. (Id. at 4-11.) Defendant counters that Plaintiff did not have insurance coverage at the time of the accident, relying on its own records, Plaintiff's bank statements, and other documents to show that Plaintiff made a preauthorization payment on 4:27 PM on the day of the accident- after the accident occurred at approximately 4:00 PM. (Doc. # 68 at 31.) Defendant contends that any record of 9:23 AM pertains to 9:23 AM on February 27, 2013, two days after the collision, when Plaintiff's payment was allegedly processed and completed. (Id.)

         Plaintiff retained Dale Crawford as a “consulting expert in the area of property and casualty insurance and reinsurance” to testify that “upon receipt of the insurance premium, it is the usual and customary practice of the insurance to bind coverage at that time.” (Doc. # 90-1.) Plaintiff disclosed Crawford as a retained expert witness to Defendant on July 7, 2017, (id.), and attached his expert report, (Doc. # 90-2.) Relevant here, Crawford opined that Plaintiff's credit card statement shows that he made an electronic payment to Defendant on the morning of the accident. (Id. at 6.) “The electronic records and information regarding time zones establish without a doubt that [Plaintiff] made a payment to [Defendant] several hours before the Accident occurred, ” Crawford wrote. (Id. at 10.) Crawford concluded that:

[T]he investigation by [Defendant] was inadequate, resulting in the lack of defense and subsequent default judgment against [Plaintiff]. Furthermore, upon presentation of undisputed evidence of payment having been made prior to the Accident, [Defendant] had an obligation to acknowledge coverage and respond to the request for resolution of the default judgment against [Plaintiff].

(Id. at 10.) Plaintiff also designated Crawford as a rebuttal expert witness, (Doc. # 90-3), and submitted Crawford's rebuttal report, (Doc. # 90-4).

         Defendant filed the Motion to Strike now before the Court on March 1, 2018. (Doc. # 90.) Plaintiff filed a Response in opposition to Defendant's Motion on March 14, 2018, (Doc. # 91), to which Defendant replied on March 28, 2018, (Doc. # 92).


         Under Daubert, the trial court acts as a “gatekeeper” by reviewing a proffered expert opinion for relevance pursuant to Federal Rule of Evidence 401, and reliability pursuant to Federal Rule of Evidence 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-95 (1993); see also Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). The proponent of the expert must demonstrate by a preponderance of the evidence that the expert's testimony and opinion are admissible. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, F.Supp.2d 1217, 1220-21 (D. Colo. 2008); F.R.E. 702 advisory comm. notes. This Court has discretion to evaluate whether an expert is helpful, qualified, and reliable under Rule 702. See Goebel, 214 F.3d at 1087; United States v. Velarde, 214 F.3d 1204, 1208-09 (10th Cir. 2000).

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides that a witness who is qualified as an expert by “knowledge, skill, experience, training, or education” may testify if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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