United States District Court, D. Colorado
HANSEN CONSTRUCTION INC. and STEVEN A. HANSEN, Plaintiffs,
EVEREST NATIONAL INSURANCE COMPANY, Defendant.
ORDER GRANTING MOTIONS TO EXCLUDE EXPERT
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Exclude or Limit Expert Testimony by Jon F. Sands, Esq.
Pursuant to FRE 702 (Doc. # 101) and Defendant's Motion
to Exclude Expert Testimony Pursuant to Fed.R.Evid. 702 (Doc.
# 102). Both Motions have been fully briefed. (Doc. ##
103-106.) Based on the reasons that follow, the Court grants
2010, Plaintiffs were sued for damages that arose from an
alleged construction defect. After attending arbitration
proceedings, Plaintiffs Steven Hansen and Hansen Construction
Inc. were found liable for the damages, and judgment was
entered against them in Colorado state court. During the
course of the underlying litigation, Plaintiffs were defended
by three separate insurance carriers pursuant to various
primary commercial general insurance policies. (Doc. # 102 at
the insurance carriers-Maxum Indemnity Company-issued two
primary policies to Plaintiffs. One policy
covered the period of 2006-2007 (“2006 Maxum
Policy”), and the other policy covered the period of
2007-2008 (“2007 Maxum Policy”). Defendant issued
Plaintiffs a single excess liability policy
(“Everest Policy”), which covered the period of
2007-2008. The Everest Policy was written to correspond to
the 2007 Maxum Policy, and a prerequisite for coverage under
the Everest Policy is exhaustion of the 2007 Maxum Policy.
(Id. at 3.)
November 2010, Maxum denied Plaintiffs coverage under the
2007 Maxum Policy. However, Maxum agreed to defend Plaintiffs
in the underlying litigation pursuant to the 2006 Maxum
Policy. When Maxum denied coverage under the 2007 Maxum
Policy, Defendant subsequently denied coverage under the
in 2016, Maxum retroactively reallocated funds it owed
Plaintiffs from the 2006 Maxum Policy to the 2007 Maxum
Policy pursuant to a settlement agreement between Plaintiffs
and Maxum. Thereafter, Plaintiffs demanded coverage from
Defendant. When Defendant did not provide the coverage that
Plaintiffs sought, Plaintiffs initiated the instant case,
raising inter alia, a claim of bad faith breach of
contract. See (Doc. # 4).
parties intend to call expert witnesses at trial to offer
opinions regarding insurance industry standards of care and
whether Defendant's conduct in handling Plaintiffs'
claim was reasonable. Defendants object to Plaintiffs'
proffered experts, J. Kent Miller and Garth H. Allen, on the
basis that their opinions are improper and inadmissible under
Fed.R.Evid. 702. (Doc. # 102.) Plaintiffs object to
Defendant's proffered expert, Jon F. Sands, on similar
grounds. (Doc. # 101.)
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 Pharm., 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); Fed.R.Evid. 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).
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 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
(d) the expert has reliably applied the principles and
methods to the ...