Fiechtner v. American Family Mutual Insurance Company

Filing 300

Minute Entry for Motion Hearing held before Judge William J. Martinez on July 11, 2011: ORDERED:Mr. Levy's request to tender two new exhibits to append the Motion, 155 is DENIED.ORDERED:Plaintiff DawnMarie Fiechtner's Motion to Strike And /Or Motion in Limine Re: Reference to or Use of the Unlawfull obtained Statement of Plaintiff 155 is GRANTED IN PART AND DENIED IN PART. Defendant will not be permitted to introduce the Statement itself into evidence. However, the Court will not exclude any evidence that relied on or otherwise considered Plaintiff's January 10, 2008 statement. ORDERED:Plaintiff's Motion to Strike and/or Motion in Limine Re: Defendant's Comparative Negligence Defense 237 is DENIED. ORDERED: Plaintiff's Motion in Limine Re: Introduction of After-Acquired Evidence 238 is DENIED. ORDERED:Defendant's Motion in Limine Re: Plaintiff's Allegations of Bad Faith Post-Litigation Conduct 240 shall be considered in two parts. Wi th regard to attorney post-litigation conduct, the motion is taken UNDER ADVISEMENT. Counsel will be advised if the Court believes supplemental briefing on this issue will be helpful.The motion insofar as it relates to non-attorney post-litigation co nduct with respect to American Family and its employees' conduct since this litigation has begun, RULING IS RESERVED.Before Plaintiff is permitted to introduce evidence of Defendant's post-litigation conduct, she will be required to show ho w such acts related to prelitigation conduct and how the proposed evidence is more probative than prejudicial. ORDERED:Plaintiff's Motion for Leave to Amend Complaint to Add Specific Allegations Regarding Defendant's Post-Litigation Conduct 277 is DENIED AS MOOT. Plaintiff included her claim for post-litigation conduct in the Final Pretrial Order, which supersedes the pleadings in this case. As such, the operative pleading which will govern this trial already contains a claim for po st-litigation conduct and there is no need to formally amend Plaintiff's Complaint. ORDERED:Defendant's Motion to Strike And/Or Motion in Limine Re: Plaintiff's Use of Evidence From Other Claims And/Or Litigation Involving American Fa mily 241 RULING IS RESERVED. ORDERED:On or before August 31, 2011, the Plaintiff will file a pleading which identifies those individuals from the nine proposed witnesses who have asserted claims against Defendant in other actions and are listed in the Pretrial Order, whom Mr. Levy believes meet the nexus requirement set forth in the Court's oral ruling with respect to being able to testify at trial in this case as to conduct by the Defendant in other cases.The Court will only allow testi mony from these witnesses about practices or policies that were used in handling Plaintiff's claims and that form the basis for Plaintiff's bad faith claim. Plaintiff should not anticipate calling any of these witnesses without the express permission of the Court. Prior to their testimony, Plaintiff will be required to make a proffer as to what their testimony will be and why it is more probative than prejudicial.ORDERED: Mr. Levy's request for leave to file one more briefing with respect to the Brekke case is denied. (Court Reporter: Kara Spitler) (wjmcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
_____________________________________________________________________
Courtroom Deputy: Deborah Hansen
Date: July 11, 2011
Court Reporter:
Kara Spitler
_____________________________________________________________________
Civil Case No. 09-cv-02681-WJM-MEH

Counsel:

DAWNMARIE FIECHTNER,

Marc Levy
Matthew Hall
Franklin Azar
Barry Dunn

Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE
COMPANY,

Suzanne Lambdin
Martha Ferris

Defendant.
_____________________________________________________________________
COURTROOM MINUTES
_____________________________________________________________________
MOTION HEARING
10:00 a.m

Court in Session

Appearances
Court’s comments
This matter is before the Court on:
Doc No. 155 - Plaintiff DawnMarie Fiechtner’s Motion to Strike And/Or Motion in
Limine Re: Reference to or Use of the Unlawfull obtained Statement of Plaintiff
Doc No. 237 - Plaintiff’s Motion to Strike and/or Motion in Limine Re: Defendant’s
Comparative Negligence Defense
Doc No. 238 - Plaintiff’s Motion in Limine Re: Introduction of After-Acquired
Evidence
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Doc No. 240 - Defendant’s Motion in Limine Re: Plaintiff’s Allegations of Bad
Faith Post-Litigation Conduct
Doc No. 241 - Defendant’s Motion to Strike And/Or Motion in Limine Re:
Plaintiff’s Use of Evidence From Other Claims And/Or Litigation Involving
American Family
Doc No. 277 - Plaintiff’s Motion for Leave to Amend Complaint to Add Specific
Allegations Regarding Defendant’s Post-Litigation Conduct
Argument is taken on Plaintiff DawnMarie Fiechtner’s Motion to Strike And/Or Motion in
Limine Re: Reference to or Use of the Unlawfull obtained Statement of Plaintiff (Doc No.
155)
10:03 Argument by Mr. Levy
ORDERED: Mr. Levy’s request to tender two new exhibits to append the Motion,
Doc No. 155, is DENIED.
10:10 Argument by Ms. Lambdin
Court’s findings entered in the record.
ORDERED: Plaintiff DawnMarie Fiechtner’s Motion to Strike And/Or Motion in
Limine Re: Reference to or Use of the Unlawfull obtained Statement
of Plaintiff (Doc No. 155) is GRANTED IN PART AND DENIED IN
PART. Defendant will not be permitted to introduce the Statement
itself into evidence. However, the Court will not exclude any
evidence that relied on or otherwise considered Plaintiff's January
10, 2008 statement.
Argument is taken on Plaintiff’s Motion to Strike and/or Motion in Limine Re:
Defendant’s Comparative Negligence Defense (Doc No. 237)
10:18 Argument by Mr. Levy
10:25 Argument by Ms. Lambdin
Court’s findings entered on the record.
ORDERED: Plaintiff’s Motion to Strike and/or Motion in Limine Re: Defendant’s
Comparative Negligence Defense (Doc No. 237) is DENIED.
Argument is taken on Plaintiff’s Motion in Limine Re: Introduction of After-Acquired
Evidence (Doc No. 238)
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10:31 Argument by Mr. Levy
10:38 Argument by Ms. Lambdin
Court’s findings entered on the record.
ORDERED: Plaintiff’s Motion in Limine Re: Introduction of After-Acquired
Evidence (Doc No. 238) is DENIED.
Argument is taken on Defendant’s Motion in Limine Re: Plaintiff’s Allegations of Bad
Faith Post-Litigation Conduct (Doc No. 240)
10:47 Argument by Ms. Lambdin
10:52 Argument by Mr. Levy
11:01 Argument by Ms. Lambdin
Court’s findings entered on the record.
ORDERED: Defendant’s Motion in Limine Re: Plaintiff’s Allegations of Bad Faith
Post-Litigation Conduct (Doc No. 240) shall be considered in two
parts.
With regard to attorney post-litigation conduct, the motion is taken
UNDER ADVISEMENT. Counsel will be advised if the Court believes
supplemental briefing on this issue will be helpful.
The motion insofar as it relates to non-attorney post-litigation
conduct with respect to American Family and its employees' conduct
since this litigation has begun, RULING IS RESERVED.
Before Plaintiff is permitted to introduce evidence of Defendant's
post-litigation conduct, she will be required to show how such acts
related to prelitigation conduct and how the proposed evidence is
more probative than prejudicial.
No argument is taken on Plaintiff’s Motion for Leave to Amend Complaint to Add
Specific Allegations Regarding Defendant’s Post-Litigation Conduct (Doc no. 277).
ORDERED: Plaintiff’s Motion for Leave to Amend Complaint to Add Specific
Allegations Regarding Defendant’s Post-Litigation Conduct (Doc No.
277) is DENIED AS MOOT. Plaintiff included her claim for
post-litigation conduct in the Final Pretrial Order, which supersedes
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the pleadings in this case. As such, the operative pleading which
will govern this trial already contains a claim for post-litigation
conduct and there is no need to formally amend Plaintiff's Complaint.
Argument is taken on Defendant’s Motion to Strike And/Or Motion in Limine Re:
Plaintiff’s Use of Evidence From Other Claims And/Or Litigation Involving American
Family (Doc No. 241)
11:10 Argument by Ms. Lambdin
11:15 Argument by Mr. Levy
Court’s findings entered on the record.
ORDERED: Defendant’s Motion to Strike And/Or Motion in Limine Re: Plaintiff’s
Use of Evidence From Other Claims And/Or Litigation Involving
American Family (Doc No. 241), RULING IS RESERVED.
Ms. Lambdin’s comments
Mr. Levy’s comments
Court’s comments
ORDERED: On or before August 31, 2011, the Plaintiff will file a pleading which
identifies those individuals from the nine proposed witnesses who
have asserted claims against Defendant in other actions and are
listed in the Pretrial Order, whom Mr. Levy believes meet the nexus
requirement set forth in the Court’s oral ruling with respect to being
able to testify at trial in this case as to conduct by the Defendant in
other cases.
The Court will only allow testimony from these witnesses about
practices or policies that were used in handling Plaintiff's claims and
that form the basis for Plaintiff's bad faith claim. Plaintiff should not
anticipate calling any of these witnesses without the express
permission of the Court. Prior to their testimony, Plaintiff will be
required to make a proffer as to what their testimony will be and why
it is more probative than prejudicial.
Mr. Levy requests leave to file more briefing with respect to the Brekke case.
Ms. Lambdin opposes the request

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ORDERED: Mr. Levy’s request for leave to file one more briefing with respect to
the Brekke case is denied.
11:33 a.m.

Court in Recess
Hearing concluded
Time: 1/33

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