Cribari v. Allstate Fire & Casualty Insurance Company
Filing
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ORDER denying 147 Motion in Limine; granting in part and denying in part 148 Motion in Limine; denying 149 Motion in Limine; granting in part and denying in part 151 Motion in Limine; denying 152 Motion in Limine; granting in part and denying in part 153 Motion in Limine; granting in part and denying in part 158 Motion in Limine; denying 162 Motion in Limine; denying 163 Motion in Limine; granting 164 Motion in Limine by Magistrate Judge N. Reid Neureiter on 06/11/2019.(nrnlc2, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02450-NRN
BEVERLY CRIBARI,
Plaintiff,
v.
ALLSTATE FIRE & CASUALTY INSURANCE COMPANY,
Defendant.
ORDER ON OUTSTANDING MOTIONS IN LIMINE
Entered by Magistrate Judge N. Reid Neureiter
This 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 advisement.
This Order addresses the remaining motions in limine and clarifies certain rulings
to the extent I was not clear at the June 5, 2019 hearing.
Background
This is 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.
Mrs. 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
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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 claim.
Allstate 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.
I 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
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evidence from which a reasonable jury could conclude that Ms. Cribari failed to
cooperate in the investigation of the claim.
Legal Standards on Motions in Limine
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)). 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 limine.
•
Dkt. #147—Allstate’s Motion in Limine re: Other Claims or Litigation.
Allstate 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.
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The 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
Allstate
As 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.
With 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 purposes.
•
DKT. #148—Allstate’s Motion in Limine to Allow Presentment of
C.R.S. Section 10-3-1116 Damages to the Jury.
Allstate 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
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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.
Plaintiff 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 eventual award”).
I agree 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
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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.
Balancing 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 will be able introduce into evidence that success
on the unreasonable delay or denial claim will result in an additional damage amount to
be awarded by the Court as provided by Colorado law.
Instructing the jury as described will provide evidence of motive the Plaintiff may
have had to not provide all requested information, while not unfairly prejudicing the
Plaintiff about the specific amount of the additional damage award, or confusing the jury
about issues of attorneys fees.
•
Dkt. #149—Plaintiff’s Motion in Limine re: F.R.E. 408 Offers.
Plaintiff seeks an order barring evidence that Allstate made various offers of
settlement of the claim prior to litigation. Plaintiff also wants to keep out evidence that
Allstate has actually tendered a $250,000 check (with an accompanying reservation of
rights). Plaintiff bases its motion on Fed. R. Evid. 408.
Allstate responds that Rule 408 bars settlement offers from evidence only when
they are offered to prove or disprove the validity or the amount of the disputed claim.
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Fed. R. Evid. 408(a). However, evidence of settlement negotiations, including offers of
compromise, are admissible for other purposes, including negating a contention of
undue delay or unreasonable conduct. See Towerridge, Inc. v. T.A.O., Inc., 111 F.3d
758, 770 (10th Cir. 1997) (citing Rule 408 and noting that the Rule only bars admission
for the “forbidden purpose” of proving liability for or invalidity of the claim or its amount).
Allstate argues that it should be allowed to introduce evidence of pre-litigation
offers to settle the UIM claim because it rebuts allegations that it failed to act
reasonably, or otherwise unreasonably delayed in resolving the claim. These are not
for the “forbidden purpose” laid out in Rule 408.
Plaintiff’s Motion in Limine #149 is DENIED. The Court will assess the
admissibility of specific pieces of evidence regarding offers of compromise at the time of
trial and rule based on the purpose for which the evidence is being offered. To the
extent that an appropriate limiting instruction is requested with respect to these offers of
compromise, the Court would welcome suggestions as to the appropriate language.
•
Dkt. #151—Plaintiff’s Motion in Limine to Preclude Reference to
Effect of Finding that Allstate Unreasonably Delayed or Denied
Payment of Insurance Benefits.
This motion by Plaintiff Cribari is the flip-side of Allstate’s Motion in Limine, Dkt.
#148 on allowing evidence of statutory damages. Plaintiff seeks to preclude reference
to the statutory damages permitted plus attorneys fees. My ruling will be the same as
for Dkt. #148.
I GRANT IN PART and DENY IN PART DKT. #151 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
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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, to be awarded by the Court as provided by Colorado law.
•
Dkt. #152—Plaintiff’s Motion in Limine to Preclude Allstate from
Offering Evidence as to its Reasoning for Recently Paying the
$250,000 Policy Limit.
Plaintiff seeks to prevent Allstate from offering evidence or argument (1) that it
“paid” $250,000 to the Plaintiff; and (2) attempting to explain why it recently
acknowledged that Plaintiff’s UIM claim was worth at least $250,000. Plaintiff claims
that because the $250,000 check was accompanied by a reservation of rights letter
expressing an intent to claw back the payment if non-cooperation is found by the jury,
then the Plaintiff was never really “paid” the money, because she cannot spend it with
impunity. Plaintiff further argues that any probative value of such evidence of payment
is substantially misleading or confusing the jury. In Plaintiff’s view, Allstate should not
be permitted to tell the jury that it “paid” anything to the Plaintiff. Dkt. #152 at 2.
Plaintiff additionally argues that Allstate should not be permitted to introduce
evidence of the $250,000 “payment” or any explanation therefore because the $250,000
payment was made only recently, and Plaintiff had requested the ability to conduct
limited discovery into the issuance of the check, including the reasons for Allstate’s
change of position on the value of Plaintiff’s claim. But no further discovery was
permitted.
In response, Allstate notes that this “motion in limine” is in effect a request for a
discovery sanction – the barring of evidence that recently developed because of the
inability to obtain discovery. Allstate also suggests that if Plaintiff truthfully believes the
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money has not actually been paid because of the reservation of rights associated with it,
then Plaintiff is free to argue that point to the jury.
I agree with Allstate. Allstate’s recent payment (years after the accident in
question) along with the reservation of rights letter, (which arguably limited the Plaintiff’s
ability to spend the money) is part of the story of this dispute, and the jury will be able to
assess the payment and the reservation of rights, all in the context of the two competing
theories of the case. Plaintiff’s counsel will have the ability and right to cross-examine
any Allstate witness who seeks to explain the reason for the delayed payment and the
apparent change in position on the evaluation. Accordingly, Plaintiff’s Dkt. #152 is
DENIED.
•
Dkt #153—Allstate’s Motion in Limine re: Litigation Conduct as
Evidence of Bad Faith.
Allstate seeks to preclude evidence of attorney litigation conduct as evidence of
bad faith. Citing Parsons v. Allstate Ins. Co., 165 P.3d 809 (Colo. App. 2006), Allstate
argues that the litigation conduct of its attorney is of only marginal relevance, lacks any
identifiable probative value, and is unduly confusing to the jury. The intent of this
particular motion in limine is, therefore, “to preclude Plaintiff’s counsel from commenting
on attorney conduct and discovery proceedings in this case, motions practice, and what
witnesses may think of Allstate’s counsel.” Dkt. #153 at 3.
Per the Parsons case, the focus of a bad faith claim in Colorado is on the
decision to refuse to make or to delay making payments owed under an insurance
policy. Therefore, “the relevance of litigation conduct by an attorney after the refusal or
delay has occurred may be limited.” 165 P.3d at 817.
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However, the Parsons cases also points out that unfair practices listed in Colo.
Rev. Stat. §10-3-1104(1)(h) may be used as evidence of acceptable industry standards
in a bad faith case, and some of the listed practices could implicate conduct occurring
after litigation has begun, “such as not attempting to effectuate a prompt, fair, and
equitable settlement once liability has become reasonably clear,” or “attempting to settle
a claim for less than a reasonable amount based on the insurance application.” Id.
While these statutory factors might form the basis for the admission of some kinds of
evidence of an insurer’s post-filing settlement conduct, they do not address others,
“such as many acts attorneys take in the course of litigation.” Id.
In contrast to post-litigation conduct by the insurer, “[a]llowing evidence of
attorney litigation conduct as proof of bad faith as a general rule could result in ethical
dilemmas for attorneys representing insurance companies. Arguably, they would be
forced to withdraw from representing their clients if they were likely to become
necessary witnesses.” Id. Parsons also highlights the danger of allowing evidence of
attorney litigation conduct for proving an insurer’s bad faith, because it “could involve
attempts to obtain or introduce information protected by the attorney-client and workproduct privileges.” Id.
Plaintiff’s response argues, first, that Allstate’s motion on this subject is
overbroad, and too fact intensive for a blanket order. Second, Plaintiff argues that postlitigation conduct by an insurer is relevant to the jury’s determination of bad faith or
unreasonable delay, in part because the insurer’s duty of good faith and fair dealing
continues as long as the insurer-insured relationship exists. See Travelers Ins. Co. v.
Savio, 706 P.2d 1258, 1268 (Colo. 1985) (duty of good faith “permeates all of the
dealings between the parties”); Dale v. Guaranty Nat. Ins. Co., 948 P.2d 545, 552 (Colo.
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1997) (“[C]laims of insurance bad faith may encompass all of the dealings between the
parties, including conduct occurring after the arbitration procedure.”).
The Parsons case draws a distinction between the post-litigation conduct of the
insurer versus the insurer’s outside counsel. Judge Martinez in Fiechtner v. Am Fam.
Mut. Ins. Co., 09-CV-02681-WJM-MEH, 2011 WL 4087296 (D. Colo. Sept. 13, 2011)
drew a similar distinction when he issued an order excluding post-litigation conduct of
outside counsel ruling, “Plaintiff will not be permitted to argue that outside counsel’s
conduct in defending against this action was evidence of bad faith on the part of [the
insurer.]” At the same time, Judge Martinez, citing Dale v. Guar. Nat’l Ins. Co., 948
P.2d 545, 552 (Colo. 1997)), explicitly found that “Colorado law clearly permits
introduction of evidence of post-litigation conduct as a basis for a bad faith claim.”
Fiechtner, 2011 WL 4087296 at *2. Judge Martinez thus denied the insurer’s motion in
limine which sought to preclude evidence of an insurer’s in-house attorney’s postlitigation conduct. Id.
Following Judge Martinez’ lead in Fiechtner and that of the Colorado Court of
Appeals in Parsons, Allstate’s Motion in Limine Dkt. #153 is GRANTED IN PART
AND DENIED IN PART. Allstate’s motion is granted to the extent that Allstate’s outside
counsel’s conduct after the filing of the Complaint (i.e., litigation conduct) shall not be
used as evidence of Allstate’s bad faith. Plaintiff will not be permitted to argue that
outside counsel’s conduct in defending against this action was evidence of bad faith on
the part of Allstate.
To the extent that this motion seeks to preclude post-litigation conduct by
Allstate, the motion is denied and I will reserve decision on specific post-litigation acts of
Allstate for the time of trial.
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There may appear, superficially, to be a contradiction between not allowing
before the jury evidence of Allstate’s counsel’s litigation conduct, while simultaneously
allowing evidence of Plaintiff’s counsel’s pre-litigation conduct in allegedly failing to
provide requested information to Allstate (the so-called bad faith “set-up”). There is no
contradiction. There is a difference between pre-filing and post-filing conduct, at least
with respect to attorneys. And evidence of or reference to Plaintiff’s counsel’s litigation
conduct (after the filing of the Complaint) will not be allowed into evidence either.
•
Dkt. #158: Allstate’s Motion in Limine to Prevent Reference to
Mediation, Issuance of Potential Settlement Check, and Settlement
Negotiations.
Allstate files this motion in limine seeking to preclude evidence that Allstate
claims relates to a mediation that occurred August 14, 2017. Allstate says its personnel
prepared for the mediation and there were entries in the claim file (specifically an
August 12, 2017 entry) that reflected internal mediation preparation communications.
In connection with and approximately at the time of the mediation, Allstate cut a
check for $250,000 which it sent on to its counsel to hold, pending analysis of whether
the case would settle or not. The case was not settled and that particular $250,000
check was never forwarded on to the Plaintiff. However, Allstate later did send a letter
to the Plaintiff asking why she had never cashed the check (the check that she had
never received). Allstate insists that the letter was merely a computer generated
mistake, that never should have been sent.
Allstate argues that all this evidence—the entries regarding Allstate’s premediation assessment, the fact that Allstate cut a check that was never delivered, and
the letter asking the Plaintiff why she had not cashed the $250,000 check--should be
kept from the jury under Rule 408 because it relates to mediation. Citing Ramada Dev.
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Co. v. Rauch, 644 F.2d 1097 (5th Cir. 1981) and Affiliated Mfrs., Inc. v. Aluminum Co. of
Am., 56 F.3d 521, 529-30 (3d Cir. 1995), Allstate argues that these internal notes were
created for the purpose of the mediation process, and thus qualify as “statements made
in compromise negotiations” which should not be admissible.
Plaintiff effectively challenges the factual basis for the motion, disputing whether
the claim file entries, or the uncashed undelivered check, were “settlement
communications” at all. Plaintiff also argues that to the extent that a claim file entry
shows that the claim was evaluated to be worth $250,000, then the evidence is
probative to refute Allstate’s “failure to cooperate” defense, in that it shows that Allstate
was able to effectively evaluate the claim even without the information that Allstate
claims was wrongfully withheld.
I agree that there is a preliminary fact issue to be decided before any ruling on
the admissibility of these discrete challenged pieces of evidence. Were the disputed
claim file entries (and the uncashed check) truly settlement communications or not? If
so, then the authorities cited by Allstate would seem to militate in favor of exclusion.
See Affiliated Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d at 529-30 (holding that Rule
408 protects internal memoranda created for, but not communicated during, settlement
negotiations); E.E.O.C. v. UMB Bank Fin. Corp., 558 F.3d 784, 791 (8th Cir. 2009) (“The
spirit of the rule . . . supports the exclusion of certain work product, internal memos, and
other materials created specifically for the purpose of conciliation, even if not
communicated to the other party.”). It is a fact question whether these internal
communications were in fact settlement communications, and the Court must decide
this threshold factual issue before deciding whether to allow the evidence before the
jury.
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Accordingly, the Court will GRANT IN PART Allstate’s DKT. #158, to the extent
that Plaintiff shall not make any mention of this material in opening or without further
order of the Court. However, at an appropriate time before or during trial, outside the
presence of the jury, Allstate must make a witness available who would be able to
testify to the nature of these communications and show that they are in fact settlement
or mediation-related, subject to cross-examination by Plaintiff’s counsel. Only if Allstate
is able to make this threshold showing will the material be kept from the jury.
•
Dkt. #162: Allstate’s Motion in Limine re: Untimely Witness
Designations.
Allstate seeks to strike and bar from testifying certain witnesses that were never
disclosed via Rule 26, but which Plaintiff has listed on her “may call” list. These include
Raul Sanchez and Deborah Benjamin.
In response, Plaintiff insists that these witnesses, if called, would only be called
for purposes of impeachment. Plaintiff also argues that impeachment witnesses
(witnesses called solely to address a witness’s credibility) need not be disclosed.
Plaintiff alleges that Mr. Sanchez and Ms. Benjamin have provided testimony in other
cases that “directly contradicts the testimony of witnesses Allstate intends to call to
support its position in this case.” I question whether testimony by a different Allstate
representative who previously may have testified differently from the witnesses in this
case actually qualifies as “impeachment” within the meaning of the rules. The fact that
someone else may testify to something different than what one of Allstate’s witnesses
may testify to does not mean that the other person is an “impeachment” witness.
Impeachment evidence is offered to undermine a witness’s credibility. See
Friedman v. Rehal, 618 F.3d 142, 153–54 (2d Cir.2010) (“[I]mpeachment evidence ... is
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offered to discredit a witness ... to reduce the effectiveness of [her] testimony by
bringing forth evidence which explains why the jury should not put faith in [her] or [her]
testimony.” (second, third, and fourth alterations in original) (second omission in
original) (quoting Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th
Cir.1993)) (internal quotation marks omitted)); United States v. Harris, 557 F.3d 938,
942 (8th Cir.2009) (“Impeachment is an attack on the credibility of a witness....” (internal
quotation marks omitted)); cf. United States v. Carter, 973 F.2d 1509, 1512 (10th
Cir.1992) (“A witness' ‘prior statements are admissible only to impeach or discredit the
witness and are not competent substantive evidence of the facts to which the former
statements relate.’” (quoting United States v. Eaton, 485 F.2d 102, 105 (10th
Cir.1973))).
If these undisclosed witnesses are not testifying directly about specific
inconsistent conduct or statements by specific Allstate’s witnesses, I doubt that their
testimony will qualify as “impeachment” under the normal understanding of that word.
Nevertheless, I will DENY WITHOUT PREJUDICE DKT. #162 and will consider any
renewed objection to testimony by previously undisclosed witnesses at the time of trial
in the context in which it is offered.
•
Dkt. #163: Allstate’s Motion in Limine re: Legal Conclusions and
Opinions.
Allstate has filed a motion seeking to limit the posing of questions in such a
manner that would “demand the lay witness interpret the governing legal standards.”
Dkt. #163 at 1. Specifically, Allstate seems to want to prevent questions that are
phrased using the words “reasonable basis.” Per Allstate, “the form of the anticipated
questions demands that the witness interpret the controlling standard of reasonableness
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and then make a determination as to what conduct does or does not comply with the
standard.” Dkt. #163 at 3. In Allstate’s view, a question to a witness phrased as “tell
me the reasonable basis” for certain conduct, is asking the witness to tell the jury that
which the jury is capable of deciding for itself, without the aid of lay witness opinions.
Id. at 4. Allstate seems to suggest that a witness may be fairly asked “for the basis” for
certain conduct, but not be asked “the reasonable basis” for certain conduct, or whether
certain conduct by the witness was “reasonable” in the witness’s view.
In response, Plaintiff points out that in a claim for common law insurance bad
faith, proof of the claim requires that the Plaintiff show the insurer “knew or recklessly
disregarded” that its conduct was unreasonable. Colo. Rev. Stat. §10-3-1113(3).
Therefore, Plaintiff argues, evidence as to why certain Allstate witnesses thought their
conduct was reasonable, or had “a reasonable basis” is relevant and does not infringe
on the jury’s ultimate determination as to whether Allstate’s conduct was reasonable or
not.
My view is that Allstate’s concerns are overblown. Allstate cites no authority
barring the specific questions using the word “reasonable.” “Reasonable” is defined as
“fair, proper, just, moderate, suitable under the circumstances.” Black’s Law Dictionary
(6th ed. 1990) at 1265. A witness should be able to explain why his or her conduct was
“suitable under the circumstances,” “proper,” or otherwise “reasonable.” I see no
material difference between asking a witness “the basis” for an action, versus the
“reasonable basis for an action.”
At the conclusion of the evidence, the jurors will be instructed on their obligations
and duties. If an explanation for a witness’s conduct does or does not appear
reasonable to the jury, regardless of the witness’s explanation for that conduct, the jury
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can so find. I will not issue an order in limine barring Plaintiff’s counsel in advance from
using particular adjectives in questioning witnesses. Therefore, Dkt #163 is DENIED
WITHOUT PREJUDICE and Allstate may raise objections to specific questions as they
are posed in the context of the trial.
•
Dkt. #164: Allstate’s Motion in Limine re: Financial Status and
Information.
Allstate seeks to preclude Plaintiff from introducing evidence or argument about
Allstate’s net worth, any gains in stock price, profitability, or any effort to characterize
this lawsuit as “David v. Goliath.” Such evidence or argument, Allstate says, would be
designed to portray Allstate as a “deep pocket” able to endure a large judgment in
Plaintiff’s favor. Such argument would be unfairly prejudicial, irrelevant, made in bad
faith, and improper character evidence, according to Allstate.
Plaintiff argues that Allstate is well-known as a nation-wide insurance company
with significant resources, and references to Allstate’s financial status would be relevant
to Plaintiff’s claims because they would show Allstate’s motivation to preserve its
wealth, and that motivation forms the basis of bad faith law in Colorado.
I agree with Allstate. “Reference to the wealth or poverty of either party, or
reflection on financial disparity, is clearly improper.” Garcia v. Sam Tanksley Trucking,
Inc., 708 F.2d 519, 522 (10th Cir. 1983). In United States v. Socony Vacuum Oil Co.,
310 U.S. 150, 239 (1940), the Supreme Court held appeals to class prejudice to be
highly improper and urged trial courts to be alert to prevent such discourse.
Therefore, ALLSTATE’S Motion in Limine DKT. #164 is GRANTED. Plaintiff’s
counsel and plaintiff’s witnesses are ordered not to reference or to highlight Allstate’s
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wealth or financial status or compare Allstate’s wealth or financial status to that of the
Plaintiff.
I will note that Plaintiff’s counsel in responding to this Motion miscites the Garcia
v. Sam Tanksley Trucking case, misleadingly stating that in that case “the 10th Circuit
concluded it was not error to reference the wealth of the defendant where the record
demonstrated the size of the trucking company....” Dkt. #165 at 3. This is the opposite
of what the Tenth Circuit in fact said in Sam Tanklesy Trucking. The Circuit explicitly
found that the trial court had committed error by allowing the argument about the
defendant’s wealth: “Counsel for plaintiffs clearly overstepped the bounds of proper
argument by attempting to contrast Tanksley’s wealth with plaintiff’s poverty.” Garcia v.
Sam Tanksley Trucking, Inc., 708 F.2d 519, 522 (10th Cir. 1983). It was improper
argument and error for the trial court to have allowed it. But ultimately, it ended up not
being reversible error for a variety of reasons. Id.
I must register my disappointment in Plaintiff’s counsel for making such a
significant misrepresentation of the holding of a case. I am relying on counsel in this
matter to act as officers of the Court, bringing to my attention and accurately citing
appropriate authorities. When I discover a brazen misrepresentation by counsel of a
case holding, it brings to mind the infamous “13th stroke of a clock at midnight,” which
“calls into question not only itself, but everything that has come before.” Winning a
minor forensic point in a brief is not worth the losing the respect and trust of the Court.
Dated: June 11, 2019
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N. Reid Neureiter
U.S. Magistrate Judge
18
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