United States District Court, D. Colorado
ORDER ON MOTION IN LIMINE
NINA
Y. WANG UNITED STATES MAGISTRATE JUDGE
This
matter comes before the court on Defendant Allstate Fire and
Casualty Insurance Company's (“Defendant” or
“Allstate”) Motion in Limine (or
“Motion”). [#77, filed August 13, 2018]. The
Motion is before the court pursuant to the Order of Reference
dated July 27, 2016 [#26], 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The court has
carefully considered the Motion and related briefing, the
entire case file, and the applicable case law. For the
following reasons, the court GRANTS IN PART and
DENIES IN PART the Motion in Limine.
BACKGROUND
The
events giving rise to this dispute stem from an automobile
accident between Plaintiff Julie A. MacKinney
(“Plaintiff” or “Ms. MacKinney”) and
non-party Melissa Mott (“Ms. Mott”) occurring on
or about October 6, 2010. See [#70 at 2]. At the
time of the accident Allstate insured Plaintiff's vehicle
under three policies that provided uninsured motorists
coverage (“UIM”): (1) Policy Number 964294702
(the “Auto Policy”); (2) Policy Number 917977315
(the “KTM Policy”); and (3) 964296870 (the
“Motorcycle Policy”) (collectively,
“Policies”). See [#39-2; #39- 3; #39-4;
#70 at 2]. Ms. Mott also carried liability insurance of $100,
000 at the time of the accident.
On
February 25, 2014, Defendant granted Plaintiff permission to
accept Ms. Mott's offer of $100, 000, which she received
on March 12, 2014. See [#70 at 2]. On June 16, 2014,
Plaintiff, through counsel, demanded the UIM coverage from
Allstate. Allstate eventually tendered and paid $150, 000 to
Plaintiff on November 18, 2014. Believing Allstate's
conduct was unreasonable in handling her UIM claim, this
litigation ensued. Plaintiff's Complaint alleged three
state law causes of action against Defendant for: (1) breach
of contract; (2) common law bad faith breach of an insurance
contract (“bad faith”); and (3) violations of
Colo. Rev. Stat. § 10-3-1115 Unreasonable Delay and
Denial of Insurance Benefits (“statutory bad
faith”). See [#1 at 8-10].
On June
16, 2016, Allstate filed its Partial Motion to Dismiss
seeking dismissal of Plaintiff's breach of contract
claim, Plaintiff's statutory bad faith claim, and any
claim based on Allstate Policy Number 964296872 (the
“Umbrella Policy”). See [#8]. The
undersigned granted in part and denied in part
Defendant's Motion to Dismiss, dismissing Plaintiff's
breach of contract claim in its entirety as well as her bad
faith and statutory bad faith claims as they related to the
Umbrella Policy because that policy did not provide UIM
coverage. [#30].[1] Following the close of discovery,
Defendant moved for summary judgment on Plaintiff's
remaining bad faith and statutory bad faith claims as to the
Policies. [#39]. The court granted in part and denied in part
Defendant's Motion for Summary Judgment. In doing so, the
court granted summary judgment in favor of Allstate on
Plaintiff's bad faith claim, holding that Plaintiff
failed to establish a genuine dispute of material fact, or
even proffer any admissible evidence, from which a reasonable
juror could infer Defendant knowingly and recklessly
disregarded the validity of her UIM claim. See [#53
at 7-10]. But the court denied summary judgment as to
Plaintiff's statutory bad faith claim, finding a genuine
dispute of fact as to the reasonableness of Defendant's
conduct in investigating Ms. MacKinney's UIM claim.
[Id. at 10-14].
The
Parties then appeared before the court for a Final Pretrial
Conference on July 25, 2018 [#69]. A Final Pretrial Order
[#70] and Trial Preparation Order [#71] entered that same
day, setting this matter for a two-day jury trial commencing
on September 24, 2018. [#69; #70; #71]. The Trial Preparation
Order set August 13, 2018 as the deadline for filing motions
in limine [#71 at 4], the date on which Defendant's filed
the instant Motion [#77].
Relevant
here, the Final Pretrial Order dictates that Ms. MacKinney
intends to call herself and Ashli Kovach (“Ms.
Kovach”), Allstate claim adjuster, as witnesses, and
that the only exhibits she seeks to admit are the Policies
and written summaries of voicemails from Ms. Kovach to
Plaintiff's counsel (one of the several issues identified
by Defendant's Motion in Limine). [#70 at 4]. In the
instant Motion, Defendant seeks to exclude ten (10)
categories of arguments/evidence that Plaintiff may advance
at trial. [#77]. Plaintiff concedes several of these points
while contesting others. See [#78]. I consider the
Parties' arguments in turn.
STANDARD
OF REVIEW
Motions
in limine exist outside of the Federal Rules of Civil
Procedure and Federal Rules of Evidence and serve to enable
the court “to rule in advance of trial on the relevance
of certain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or
interruption of, the trial.” United States v.
Cline, 188 F.Supp.2d 1287, 1291 (D. Kan. 2002) (quoting
Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)
(further citations omitted)). Pretrial rulings issued in
response to motions in limine can save time during trial as
well as cost and effort for the parties as they prepare their
cases. However, “a court is almost always better
situated during the actual trial to assess the value and
utility of evidence.” Koch v. Koch Industries,
Inc., 2 F.Supp.2d 1385, 1388 (D. Kan. 1998) (citing
Hawthorne Partners v. AT & T Technologies, Inc.,
831 F.Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless
evidence meets this high standard [of clearly inadmissible],
evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice
may be resolved in proper context.”)).
ANALYSIS
I.
Argument That Insurers Profit by Delaying Payment
Allstate
seeks to preclude Plaintiff from making “any statements
or arguments about any alleged profitability of delayed
payments or of any alleged ‘business model.'”
[#77 at 4]. Based on statements made by Plaintiff's
counsel at the motion hearing on Defendant's Motion for
Summary Judgment, Allstate contends that Plaintiff may wish
to make statements in her opening statement, closing
statement, or while questioning witnesses, suggesting that
Allstate, like all insurers, profits from delaying payments
of UIM claims. See [id. at 3]. Defendant
argues that these statements are prejudicial and irrelevant.
[Id.].
Plaintiff
counters that, despite the prejudicial nature of such
statements, they nonetheless speak “directly to the
heart of the motive behind delaying or denying
benefits.” [#78 at 1]. Ms. MacKinney maintains that the
delay of payment on claims easily verifiable by Allstate
“bestows the exact benefit upon the Defendant
consistent with how they earn their profits.”
[Id.]. The court respectfully disagrees.
Rule
401 of the Federal Rules of Evidence advises that evidence is
relevant if “it has any tendency to make a fact more or
less probable than it would be without the evidence, ”
and “the fact is of consequence in determining the
action.” Fed.R.Evid. 401(a)-(b). The court may
nonetheless exclude relevant evidence “if its probative
value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Id. at 403.
And though not raised by either Party, such statements may
also speak to Allstate's routine business practice,
see Id. at 406. See also Hancock v. Am. Tel.
& Tel. Co., Inc., 701 F.3d 1248, 1261 (10th Cir.
2012) (explaining that evidence of an organization's
routine practice may be admitted under Rule 406 to prove that
it acted in conformity with that practice on this particular
occasion, even if it is uncorroborated or there was no eye
witness); accord Fritchie v. Alumax, Inc., 931
F.Supp. 662, 676 (D. Neb. 1996) (explicating on why courts
admit evidence of routine practices, because “routine
business practices are often relied upon by other businesses
and because routine business practices are derived from
concerted planning activities driven by economic concerns
about efficiency which are of necessity more regimented than
individual conduct.”).
At
first blush, Ms. MacKinney's statements may speak to a
motive in delaying payment of her UIM benefits because
Allstate's routine practice is to delay payment of
verifiable claims. Cf. Oklahoma v. Montgomery, No.
CIV-11-863-C, 2012 WL 12892401, at *4 (W.D. Okla. May 23,
2012) (evidence of wrongdoing by former insurance
company's principals “may be relevant to
Defendants' assertions that they were
overcharged”). But to prove that Allstate's conduct
here was a routine practice Ms. MacKinney must offer evidence
of numerous, consistent occurrences of the act. See
Camfield v. City of Oklahoma City, 248 F.3d 1214,
1232-33 (10th Cir. 2001). As Allstate correctly argues, Ms.
MacKinney proffers no such evidence and, thus, the court
concludes that she lacks any personal knowledge as to whether
this is indeed Allstate's routine practice. See
United States v. Oldbear, 568 F. 814, 822 (10th Cir.
2009) (holding that three proposed witnesses lacked personal
knowledge of the tribe's routine practice where they
could only identify three instances of the alleged routine
practice). Nor does the Final Pretrial Order or witness list
in this action disclose any expert witness to testify as to
Allstate's routine practices. [#70; #83]. Given these
findings, the court concludes that the prejudice to Allstate
outweighs any probative value such statements may have in
demonstrating that Allstate unreasonably delayed payments to
Ms. MacKinney. Accordingly, the court
GRANTS Allstate's Motion in Limine on
this issue.
II.
Argument Regarding the Requirement and/or Condition Precedent
of a Signed Release
Defendant's
argument here is twofold. First, Allstate seeks to preclude
any argument that it required Plaintiff to sign a Release
before paying her UIM benefits and/or any suggestion that a
signed Release is a condition precedent to the payment of UIM
benefits. See [#77 at 4]. Though conceding that it
requested a signed Release, Allstate avers that it paid
Plaintiff's UIM benefits without a signed Release and,
thus, any argument that Allstate required a Release prior to
paying UIM benefits is irrelevant, not probative, and
prejudicial. [Id.]. Second, Allstate seeks to
preclude Plaintiff from arguing that the Release was a
“release of all claims.” [Id.]. Allstate
asserts that contract interpretation is for the court in the
first instance, and that absent any ambiguity in the contract
the jury should not decide the meaning of the terms of a
contract. [Id. at 5]. These arguments are repeated
in Defendant's Trial Brief. [#87]. The court respectfully
disagrees on both points.
First,
it is undisputed that Allstate paid Ms. MacKinney's UIM
benefits without her signing the Release. See, e.g.,
[#77-2 at 4-5]. But it is also undisputed that Allstate
tendered several offers to Plaintiff and each time requested
that Plaintiff sign a Release. See, e.g., [#43-6 at
22; #43-7 at 7, 9, 11]. And Plaintiff avers that the Policies
did not contain a provision requiring her to sign a Release
prior to receiving the UIM benefits. Thus, while the court
agrees that it would be incorrect and misleading to argue
that Allstate required a signed Release prior to paying Ms.
MacKinney's UIM benefits, the court does not agree that
any mention of Allstate's requests for a signed Release,
which occurred prior to the actual payment of her UIM
benefits, is irrelevant to whether Allstate unreasonably
delayed payment of those UIM benefits or that this in some
way unfairly prejudices Defendant. Cf. Wahlert v. Am.
Standard Ins. Co. of Wis., 173 F.Supp.3d 1187, 1197-98
(D. Colo. 2016) (“I conclude that a reasonable jury
could find that conditioning the payment on Ms. Wahlert's
relinquishment of her claim that she was entitled to more
under the policy was an unreasonable delay or denial of a
benefit.”).
Second,
it is not apparent that Ms. MacKinney seeks the jury to
interpret whether the Release was a “release of all
claims” as Defendant contends. [#78 at 3]. But, as
previously noted, neither Party identifies a witness to
testify to the significance of the Release or the
interpretation of its terms [#53 at 13 n.6], and it is
questionable whether the court would have permitted an expert
to testify about the legal scope of a Release. See,
e.g., Auto-Owners Ins. Co. v. Csaszar, No.
15-cv-02318-CMA-KMT, 2017 WL 5188338, at *6 (D. Colo. Jan.
26, 2017) (excluding expert testimony regarding contract
interpretation when the contractual terms are not complex or
technical). Rather, all Parties can testify about actions and
communications surrounding the tender of the Release to Ms.
MacKinney and the Parties' respective instructions and
responses to the tender of such Release, e.g., whether Ms.
Kovach communicated or Ms. MacKinney reasonably understood
that the signed Release was a prerequisite for payment of
benefits. And to the extent that Ms. MacKinney testifies that
she understood the Release being of “all claims”
to be eligible for the payment of benefits, Allstate may
probe into whether such an understanding was ...