United States District Court, D. Colorado
ORDER ON OUTSTANDING MOTIONS IN LIMINE
REID NEUREITER U.S. MAGISTRATE JUDGE
matter is before the Court on a number of outstanding motions
in limine, filed by both parties. On June 5, 2019, I held a
two and a half hour trial preparation conference where I
tried to get through as many of the outstanding motions in
limine as possible, ruling from the bench on some, reserving
other decisions for trial, and taking others under
Order addresses the remaining motions in limine and clarifies
certain rulings to the extent I was not clear at the June 5,
an insurance bad faith lawsuit brought by an insured, Ms.
Cribari, against her insurer, Allstate, for breach of
contract and unreasonable delay or denial in paying an
uninsured motorist claim, after Ms. Cribari suffered injuries
from a car accident.
Cribari made a claim for underinsured motorist benefits under
her Allstate policy, which has a limit of $250, 000. Allstate
initially did not pay the claim, and this lawsuit followed.
Mrs. Cribari claims in this lawsuit that her damages in fact
exceed the amount paid by the negligent motorist, and
Allstate breached her contract of insurance by not paying any
benefits, that Allstate unreasonably delayed and denied
payment of her insurance claim, and that it further acted
unreasonably and in bad faith. While Allstate previously
denied that Mrs. Cribari's damages met or exceeded the
$250, 000 in available underinsured motorist benefits, it
recently changed its position and agreed that the claim is
worth that full amount. Allstate sent Ms. Cribari a check for
$250, 000 under a reservation of rights. Allstate has
reserved the right to recoup the $250, 000 payment, claiming
that Ms. Cribari has forfeited her benefits under the policy
because she failed to cooperate in the investigation of her
denies that it breached the contract, unreasonably delayed or
denied payment of the claim, or otherwise acted in bad faith.
Allstate asserts that while Mrs. Cribari's damages from
the accident do exceed the limit of her underinsured motorist
insurance policy, it is not obligated to pay this amount
because Mrs. Cribari failed to cooperate in Allstate's
investigation. Allstate's theory is that Ms. Cribari
failed to cooperate by not providing all the necessary
information so as to bring a bad faith lawsuit to obtain the
additional penalties and attorneys' fees that Colorado
law provides for insureds whose insurance benefits have been
unreasonably delayed or denied. This has been called the
“set up” argument-that Ms. Cribari “set
up” Allstate for a bad faith lawsuit by intentionally
withholding information that would have allowed Allstate to
evaluate the claim fairly and promptly.
previously addressed each sides' respective motions for
summary judgment. In my order denying summary judgment.
See Dkt. #137. I found that there was sufficient
evidence from which a reasonable jury could conclude that
Allstate acted unreasonably and unreasonably delayed or
denied payment. I also found that there was evidence from
which a reasonable jury could conclude that Ms. Cribari
failed to cooperate in the investigation of the claim.
Standards on Motions in Limine
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)). Pre-trial 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.”)). With these
principles in mind, I turn to the outstanding motions in
Dkt. #147-Allstate's Motion in Limine re:
Other Claims or Litigation.
is fearful that Plaintiff will seek to introduce evidence of
claims handling by Allstate in other cases that “have
nothing to do with the facts of this case.” Therefore,
Allstate seeks to preclude evidence of other claims or
litigation, arguing that it would cause undue confusion of
the jury and excessively complicate matters leading to
spinoff arguments about whether Allstate's conduct in
other cases has been proper or not.
Plaintiff seeks to introduce evidence from other claims or
litigation involving Allstate for two distinct purposes.
Plaintiff first says that it is Allstate's pattern or
practice to raise the “failure to cooperate”
defense with respect to many insureds and the raising of this
defense with “exceedingly high frequency” is
relevant to Allstate's allegedly baseless raising of the
defense in this case. Second, the Plaintiff says that
evidence from other cases may be appropriately used to
impeach Allstate's witnesses about what may or may not be
feasible in terms of investigating a claim. For example, if
stated at the June 5, 2019 hearing, I GRANT Dkt.
#147 with respect to other claims or litigation
which are intended to show it is Allstate's pattern or
practice to raise the failure to cooperate defense.
This case is (in part) about whether Mrs. Cribari
failed to cooperate or not. It is not about whether Allstate
has raised (legitimately or not) this defense in other cases,
or whether the plaintiffs in those other cases failed to
cooperate or not.
respect to whether material or evidence from other claims or
Allstate litigation may be used for impeachment purposes, I
DENY without prejudice Dkt. #147 and
will reserve for trial the issue of admissibility of specific
evidence that may be used for impeachment
DKT. #148-Allstate's Motion in Limine to
Allow Presentment of C.R.S. Section 10-3-1116 Damages to the
seeks to introduce to the jury the fact of the additional
damages available to a plaintiff in an unreasonable delay or
denial case-two times the covered benefit plus attorneys'
fees. See Colo. Rev. Stat. §10-3-1116(1).
According to Allstate, allowing evidence of what would be
available to the Plaintiff (and her counsel) in the event
that the jury finds unreasonable delay is important to show
the motivation the Plaintiff might have in not cooperating
with Allstate's investigation of her claim. Per
Allstate's argument, this evidence is important to prove
the motive the Plaintiff (or her attorney) had to “set
up” Allstate for bad faith litigation.
responds that there are a number of reported decisions that
explain that telling the jury of the availability of treble
damages or additional statutory damages is improper and
denies a plaintiff the right to a fair and impartial jury.
See, e.g., Heritage Village Owners Assoc. v.
Golden Heritage Investors, Ltd., 89 P.3d 513, 518
(Colo.App. 2004) (agreeing that information about treble
statutory damages under CCPA is “not only irrelevant to
the jury's performance of its function, but such
knowledge likely will be prejudicial to the plaintiff while
at the same time thwarting the legislative intent of
requiring exemplary damages”); Cassareto v. GEICO
Cas. Co., No. 16-cv-285-MEH, 2017 WL 7693513 (D. Colo.
May 26, 2017) (“[T]he Court agrees statutory penalties
are not relevant to the issues the jury must decide.”);
Seidman v. Am. Family Mut. Ins. Co., No.
14-cv-03193-WJM-KMT, 2016 WL 8201768, at *3 (D. Colo. Sept.
13, 2016) (“[T]he statutory penalty is not relevant to
the jury's deliberations. The jury need only determine
the amount of the delayed or denied benefit.”); Toy
v. Am. Family Mut. Ins. Co., 2014 WL 486173, at *1 (D.
Colo. Feb. 6, 2014) (discussion of the penalty “may
tend to confuse or prejudice a jury into reducing its
that discussion of the specific amount of the statutory
penalty may tend to confuse the jury or prejudice the jury
into improperly reducing its eventual award. However, in this
case, I also agree that there is relevance to the issue of
the statutory damages because it goes to the motive the
Plaintiff might have had to withhold information and not
cooperate in Allstate's investigation. It is part of
Allstate's claim that this was a “set-up” by
the Plaintiff in order to bring a bad faith lawsuit.
these two competing concepts, I GRANT IN PART AND
DENY IN PART DKT. #148 as follows: I intend to
instruct the jury that a finding in favor of the Plaintiff on
the unreasonable delay or denial claim will result in the
Court “awarding an additional damage amount to the
Plaintiff and against Allstate based on the amount of the
benefit that was unreasonably denied or delayed, as provided
by Colorado law.” There shall be no mention of
attorneys' fees or the specific amount of the additional
damage award, other than to say it is “an additional
amount, based on the amount of the benefit that was
unreasonably delayed or denied, as provided by Colorado
law.” With this instruction in mind, Allstate ...