Lua v. QBE Insurance Corporation

Filing 66

ORDER granting in part, denying in part, and denying as moot in part 34 Motion to Exclude Expert Testimony Pursuant to Fed. R. Evid. 702. IT IS FURTHER ORDERED that a proposed stipulated limiting instruction for Mr. Warzels testimony shall be submitted at the Final Pretrial Conference on 10/23/2019, by Magistrate Judge Kristen L. Mix on 10/11/2019.(jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-01233-KLM
JUAN CARLOS LUA, as assignee of David Bowser,
Plaintiff,
v.
QBE INSURANCE CORPORATION, a foreign corporation,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant QBE Insurance Company’s Motion to
Exclude Expert Testimony Pursuant to Fed. R. Evid. 702 [#34]1 (the “Motion”). The
Court has reviewed the Motion [#34], the Response [#39], the Reply [#42], the case file,
and the applicable law, and is sufficiently advised in the premises. For the reasons set
forth below, the Motion [#34] is GRANTED IN PART, DENIED IN PART, AND DENIED AS
MOOT IN PART.
I. Background
This is a breach of insurance contract and bad faith lawsuit arising out of an
underlying lawsuit and arbitration (the “Underlying Case”) involving, inter alia, claims of
fraud, intentional misrepresentation, and the failure to disclose known defects by David

1

“[#34]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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Bowser (“Bowser”) in the sale to Plaintiff Juan Carlos Lua (“Plaintiff”) of a residential home.
Motion [#34] at 1. Mr. Bowser was the listing agent for the Home. Id. Upon being served
with the underlying complaint, Mr. Bowser tendered the matter to QBE Insurance Company
(“Defendant”) pursuant to the claims-made Errors & Omissions liability insurance policy (the
“Policy”) issued to him. Id. at 1-2. Defendant denied coverage for the underlying matter.
Id. at 2.
Thereafter, Plaintiff and Mr. Bowser entered into an agreement in which Mr. Bowser
admitted liability in the Underlying Case and assigned to Plaintiff his rights under the Policy.
Motion [#34] at 2. Plaintiff and Mr. Bowser agreed to have the amount of damages
determined in binding arbitration. Id. Plaintiff presented an uncontested case in support
of his alleged damages, and called three witnesses to testify: Plaintiff; Plaintiff’s spouse,
Perla Gonzalez; and Plaintiff’s expert witness, Robert H. Pratt. Id. Plaintiff was awarded
$594,132.85 on the claim for intentional misrepresentation. Id.
Following the arbitration award, Plaintiff, as assignee of Mr. Bowser, filed the instant
lawsuit against Defendant for breach of contract, common law bad faith, and statutory
damages under Colo. Rev. Stat. §§ 10-3-1115 and 1116. Motion [#34] at 3.
The Motion [#34], pursuant to Fed. R. Evid. 702, asserts that Plaintiff’s expert
Zachary Warzel’s opinions concerning the purported standards of care applicable to
Mr. Bowser’s claim under the professional liability policy and the reasonableness of
Defendant’s conduct under those standards should be stricken as unreliable and as
improper legal conclusions. Id at 3. The Motion also seeks to strike experts Peter

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Marxenhausen and Bernard Kintnerfor,2 endorsed to testify as to the reasonableness of the
arbitration award, because they did not testify at the arbitration and their opinions are not
relevant to the coverage dispute. Id.
Relevant to the Motion [#34], on October 8, 2019, the Court granted Plaintiff’s
Motion for Partial Summary Judgment [#40], finding that Defendant had a duty to defend
the Underlying Case. Order on Summary Judgment [#64], at 27. The Court granted in part
and denied in part Defendant’s Motion for Summary Judgment [#35], finding that there was
no coverage under the Policy under the agent-owned property and fraud exclusions, but
that the lack of coverage under these exclusions did not excuse Defendant’s duty to
defend. Id.
II. Legal Standard
Admission at trial of expert testimony is governed by Fed. R. Evid. 702 and requires
a two-step analysis. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.
2006). “First, the court must determine whether the expert is qualified by ‘knowledge, skill,
experience, training, or education’ to render an opinion.” Id. (citation omitted). “Second,
if the expert is sufficiently qualified, the court must determine whether the opinion is reliable
under the principles set forth in Daubert.

Id. (citing Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
A judge thus has a “gatekeeping role” in deciding whether to admit or exclude expert
testimony, and must determine that the testimony is both reliable and relevant. Daubert,

2

Defendant misspelled Peter Marxenhausen’s last name. See Plaintiff’s Rule 26(a)(2)
Disclosures. Motion [#34], Ex. D at p. 3. Defendant’s reference to Bernard Kintner is correct per
Plaintiff’s Disclosures. Id. However, as Plaintiff now refers to this expert as Bernard Kintnerfor,
Resp. to Motion [#39] at 1, the Court uses that name.

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509 U.S. at 589, 597. An opinion is reliable if the reasoning or methodology of the expert
is valid and “can be applied to the facts in issue.” Id. at 592.3

An opinion is relevant if it

“‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’” Id.
(citation omitted).
Ultimately, the determination of whether expert testimony should be admitted is
within the sound discretion of the trial court. Vining v. Enterprise Fin. Group, 148 F.3d
1206, 1218 (10th Cir. 1998). “‘[T]he rejection of expert testimony is the exception rather
than the rule.’” O’Sullivan v. Geico Cas. Co., 233 F. Supp. 3d 917, 922 (D. Colo. 2017)
(quoting Fed. R. Evid. 702 advisory committee’s note).

“‘[T]he trial court's role as

gatekeeper is not intended to serve as a replacement for the adversary system. . . .
Vigorous cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Id. (citing id.)
III. Analysis
A.

Expert Zachary Warzel
Defendant asserts that Zachary Warzel (“Warzel”) is endorsed by Plaintiff to provide

opinions concerning the purported standards of care applicable to Mr. Bowser’s claim under
the professional liability policy and the reasonableness of Defendant’s conduct under those
alleged standards. Motion [#34], at 2-3, Ex.3. Defendant first seeks to strike a number of
opinions of Mr. Warzel (opinions a. through w.) on the basis that they are “nothing more

3

Appropriate validation under Daubert requires that the proposed expert testimony be
supported by “‘good grounds,’ based on what is known.” 509 U.S. at 590.

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than a recitation of Colorado law” and encroach “‘on the trial court’s authority to instruct the
jury as to the applicable law.’” Motion [#34] at 4-8 (quoting Specht v. Jensen, 853 F.2d
805, 807 (10th Cir. 1988)). Rather than “parse” through the opinions in paragraphs a.
through w. or other disputed paragraphs “line-by-line”, the Court sets forth guidelines that
will govern Mr. Warzel’s testimony at trial regarding the disputed issues. See King v.
Allstate Ins. Co., No. 11-cv-00103-WJM-BNB, 2013 WL 3943607, *5 (D. Colo. July 31,
2010). As noted in King, “an expert’s testimony at trial rarely mirrors the precise wording,
structure or organization of his expert report.” Id.
The Court finds that many of the opinions of Mr. Warzel that Defendant seeks to
exclude are now moot in light of the Court’s Order on Summary Judgment [#64]. These
include any opinions regarding: (1) coverage and the duty to indemnify under the Policy;
(2) whether the duty to defend was breached; and (3) whether the complaint rule applies
to the duty to defend and the applicability of any exceptions. Related to the latter
argument, Defendant’s argument that Mr. Warzel’s opinions in paragraphs (n), (o), (p), (r),
and (v) are incomplete and/or inaccurate under Colorado law because they do not take into
account the exceptions to that complaint rule is also moot. Motion [#34] at 9-10. Similarly,
Defendant’s argument as to opinions x. through cc., Motion [#34] at 11-12, is largely moot
as these paragraphs opine as to the duty to defend and the applicability of the exclusions
on that issue.4

4

Opinion y., which states that Mr. Bowser, not Bowser LLC, is the named insured on the
Policy, Motion [#34] at 11, is simply a statement of fact. The Motion [#34] is denied to the extent
that it seeks to exclude this or other factual statements by Mr. Warzel about the Policy.

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Mr. Warzel’s testimony is also relevant, however, to the remaining bad faith claim
regarding Defendant’s duty to defend and whether Defendant acted unreasonably in
connection with that issue.

Defendant seeks to exclude Mr. Warzel’s opinions in

paragraphs a. through w., asserting they are largely expressed as a recitation of law and
the legal principles applicable to insurance contracts generally, the duty to defend, and
other relevant issues. Motion [#34] at 4-8. Defendant also seeks to exclude several
opinions of Mr. Warzel that allegedly address the ultimate issue, i.e., whether Defendant’s
actions were reasonable and/or show that Defendant acted in bad faith. See Motion [#34]
at 11-12 (seeking to exclude opinions dd. through ii). As explained below, the Motion [#34],
which seeks to preclude such opinion testimony from Mr. Warzel as a whole as to these
issues, is denied.
Opinions that merely inform the jury as to the law and the legal principles are
generally subject to exclusion as “encroach[ing] on the trial court’s authority to instruct the
jury on the applicable law, for it is axiomatic that the judge is the sole arbiter of the law and
its applicability.” Specht, 853 F.2d at 807.5 This does not mean, however, that “all
testimony regarding legal issues is excluded.” Id. at 809.

Testimony regarding such

issues may be proper “if the expert does not attempt to define the legal parameters within
which the jury must exercise its fact-finding function.” Id. As the Specht court explained:
We recognize that a witness may refer to the law in expressing an opinion
without that reference rendering the testimony inadmissible. Indeed, a

5

Specht found that expert testimony regarding an “array of legal conclusions touching upon
nearly every element of the plaintiffs’ burden of proof” was improper as it “allowed the expert to
supplant both the court's duty to set forth the law and the jury's ability to apply this law to the
evidence.” Id. at 808.

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witness may properly be called upon to aid the jury in understanding the facts
in evidence even though reference to those facts is couched in legal terms.
For example, we have previously held that a court may permit an expert to
testify that a certain weapon had to be registered with the Bureau of Alcohol,
Tobacco, and Firearms. United States v. Buchanan, 787 F.2d 477, 483 (10th
Cir.1986). In that case, however, the witness did not invade the court's
authority by discoursing broadly over the entire range of the applicable law.
Rather, the expert's opinion focused on a specific question of fact.
Id. at 809.
In the context of insurance industry standards that Plaintiff asserts Mr. Warzel will
testify about, a court may exclude testimony seeking to “compare[] the insurance
company’s actions to the industry standard” where a jury would be “fully capable of
deciding [the] case without expert testimony. . . .” Am. Specialty Ins. Co. v. Britt Paulk Ins.
Agency, Inc., 579 F.3d 1106, 1112 (10th Cir. 2009); see also O’Sullivan, 233 F. Supp. 3d
at 926. However, as noted by the Colorado Supreme Court, “[e]xperts routinely testify as
to whether a defendant’s conduct violated the accepted standards of practice” in various
professions. Southerland v. Argonaut Ins. Co., 794 P.2d 1102, 1107 (Colo. 1990). The
Court found there is “no error with an expert applying the legal or industry standards to the
facts in determining if a defendant’s conduct was violative of the standards of a profession
or industry.” Id.
Consistent with this, courts in this jurisdiction have routinely allowed experts in bad
faith cases to testify regarding industry standards and whether they were breached, as well
as to ultimate issues regarding the reasonableness and propriety of the insurer’s conduct.
See, e.g, Vining, 148 F.3d at 1212, 1218 (affirming trial court’s admission of expert on
handling and management of claims who testified that conduct of insurer was
inappropriate); Ford v. Allied Mut. Ins. Co., 72 F.3d 836, 841 (10th Cir. 1996) (affirming
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admission of expert testimony on insurance industry standards relevant to bad faith,
including “industry practice that before there is coverage under UIM, one looks at the total
coverage available at that time” and testimony that “the industry regards the insured as
being in an arm’s length relationship vis-a-vis the company”); O’Sullivan, 233 F. Supp. 3d
at 922 (admitting expert testimony as to industry standards and claims handling); King,
2013 WL 3943607 at *5 (allowing testimony that “certain actions taken by Defendant were
reasonable and/or show that Defendant did not act in bad faith”); Lone Star Steakhouse &
Saloon, Inc. v. Liberty Mut. Ins. Group, 343 F. Supp. 2d 989, 1015 (D. Kan. 2004) (allowing
expert opinions “relating to industry standards and practices and whether Liberty Mutual’s
conduct conformed to such standards[]”.6 The Court finds such cases persuasive, and
believes that similar testimony by Mr. Warzel may be relevant and helpful to the jury.
Defendant argues, however, that “Mr. Warzel does not even attempt to explain the
existence of these purported ‘industry standards’ beyond their reference in various
Colorado statutes and case law.” Motion [#34] at 8. Mr. Warzel admits in his report that
the industry standards are governed in part by legal rules, explaining:
My opinions . . . are not intended to usurp the function of the Court, but are
stated only as the predicate to my opinions about QBE’s violation of industry
standards. The insurer’s decision on whether to defend is controlled and
shaped by the legal rules pertaining to the duty to defend in Colorado and the
rules of policy interpretation, and in this sense the legal rules are the
“industry standards” to which the insurer is required to adhere.
6

See also Novell v. American Guar. & Liability Ins. Co., 15 P.3d 775, 778-79 (Colo. App.
1999) (affirming admission of expert testimony regarding unreasonable conduct by insurer’s
representatives); Peiffer v. State Farm Mut. Auto. Ins. Co., 940 P.2d 967, 971 (Colo. App. 1996)
(stating that while “an expert witness should not dictate the law that the jury should apply, an expert
witness is permitted, in the trial court’s discretion, to refer to the facts of the case in legal terms”,
and affirming admission of expert testimony that insurer’s conduct violated Colorado’s Unfair Claims
Settlement Practices Act).

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Resp. Motion [#39] at 8 and Ex. C at 10 n. 1. The issue then becomes whether such
testimony is proper. The Court finds Judge Martínez’s decision in King instructive on this
issue.
In King, the expert’s report contained an analysis of bad faith cases, and the plaintiff
challenged the opinions to the extent they provided commentary on the law. 2013 WL
3943607, at *5. Judge Martínez found that it is the Court's role to instruct the jury on the
law governing the case, and that he would not permit the expert to “testify about the
meaning” of those cases. Id. Judge Martínez noted, however, that “the standards that
govern the industry standards are, at least to some extent, formed by . . . case law”, and
that the cases “may inform [the expert’s] opinions.” Id. He held in King that while the
expert could testify “about his understanding of the law and how it impacts his
understanding of the standards that govern the insurance industry”, the expert could not
testify “about the holding in a particular case and apply[] the rule of that case to the facts
at issue here.” Id.
King is also instructive regarding Defendant’s argument that Mr. Warzel’s opinions
touch on the ultimate issue about the reasonableness of its conduct. Judge Martínez
allowed such opinions in King, noting that “[i]t is well-settled that an expert opinion is not
inadmissible simply because it embraces an ultimate issue to be determined by the trier of
fact.” 2013 WL 3943607, at *5. However, “[g]iven the close intersection between portions
of [the expert’s] testimony and the Court's role in instructing the jury”, Judge Martínez
stated the Court would give a limiting instruction prior to the expert’s testimony.7

7

The instruction to be given would “make clear that the Court will instruct the jury on the law
and, to the extent that [the expert’s] testimony differs from the Court's instructions, the jury must

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The Court agrees with the result reached in King and adopts its holding in this case.
Mr. Warzel is thus permitted to testify generally about his understanding of the law and how
it impacts his understanding of the standards that govern the insurance industry. He may
also offer opinions about the reasonableness of Defendant’s conduct in relation to Plaintiff’s
bad faith claims. Mr. Warzel’s testimony must, however, be narrowly tailored, and must not
usurp the court's duty to set forth the law or impact the jury's ability to apply the law to the
evidence. He may not testify about specific cases and how they apply to the facts at issue.
Consistent with King, the Court will give a limiting instruction prior to Mr. Warzel’s
testimony. The parties are directed to submit to the Court at the Final Pretrial Conference
on October 23, 2019, a stipulated limiting instruction along the lines of that discussed in
King. 2013 WL 3943607, at *5.
Defendant next argues that Mr. Warzel’s contention in paragraph (h) regarding the
Unfair Claims Settlement Practices (the “Act”) is inadmissable as inconsistent with
Colorado law. Motion to Exclude [#34] at 5, 9 (citing Am. Family Mut. Ins. Co. v. Allen, 102
P.3d 333 (Colo. 2004)). Mr. Warzel states in that paragraph that violations of the Act “are
admissible to prove the unreasonableness of an insurer’s conduct,” citing Colo. Rev. Stat.
§ 10-3-1113(1). The Court first notes the holding in Allen that the Act “does not establish
a standard of care actionable in tort” but “may be used as valid, but not conclusive,
evidence of industry standards . . . .” Id. at 339. To the extent Mr. Warzel discusses the
Act as relevant to industry standards, his testimony must comport with that ruling. Thus,

credit the Court's instructions over such testimony.” Id. The instruction would “also inform the
jurors that they may give [the expert’s] testimony whatever weight they deem appropriate, and that
they are the ultimate finders of fact” in the case. Id.

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Mr. Warzel may not testify that the Act establishes the standard of care, but may testify that
the Act is valid, but not conclusive, evidence of the industry standard.8
The Court now turns to Defendant’s argument that Mr. Warzel’s opinion in paragraph
(a) that Colorado law has “approved” the type of agreement entered into by Plaintiff and
Mr. Bowser is inaccurate insofar as it suggests that all such agreements have been given
blanket approval under Colorado law. Motion to Exclude [#34] at 9. Defendant argues that
the validity of these types of agreements have recently been called into question, noting
the risk they pose of resulting in collusive and/or unreasonable agreements between
insured and claimants. Id. (citing Travelers Prop. Cas. Co. of Am. v. Stresscon Corp., 270
P.3d 140, 145-146 (Colo. 2016)).
The Court addressed this type of agreement in its summary judgment ruling, stating
that such an agreement is “generally enforceable if . . . ‘[if] the third party successfully
litigate[s] any of the bad faith claims against the[] insured by means of an assignment of
claims[.]’” Order on Summary Judgment [#64] at 6 n. 8 (quoting Nunn v. Mid-Century
Insurance Company, 244 P.3d 116, 120-21 (Colo. 2010)). The Court recognized “that such
agreements may ‘present[] legitimate concerns regarding the possibility of fraud or
collusion,’” and stated that those issues “‘can be addressed at trial like any other issue.’”
Id. (quoting id. at 123). Neither the opinion of Mr. Warzel nor the Stresscon case are
inconsistent with the Court’s ruling, and the Motion to Exclude [#34] is thus denied as to

8

To the extent Plaintiff is claiming a statutory violation of the Act which requires willfulness,
see Colo. Rev. Stat. § 10-3-1113(4); CJI-Civ. 25:6 (2018 ed); Defendant asserts that Mr. Warzel’s
report does not state or contend that Defendant engaged in any willful violations of the Act. Motion
to Exclude [#34] at 9. Plaintiff does not address this issue in his Response to Defendant’s Motion
[#39], and the Court is unable to determine how, if at all, Mr. Warzel’s testimony is pertinent to this
issue. The Motion to Exclude is thus denied without prejudice as to this limited issue.

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Defendant’s argument on this issue.
Finally, the Court grants the Motion [#34] as to Mr. Warzel’s opinion offered in
paragraph jj. that “Mr. Bowser purchased Errors & Omissions insurance coverage to protect
him (and to provide for recovery from those he might harm in the course of his business)
from claims related to his professional activities.” See id. at 15, Ex. C at 2. The Court
agrees with Defendant that this opinion is based on “subjective belief or unsupported
speculation” about why Mr. Bowser purchased insurance. Daubert, 509 U.S. at 590.
Neither Plaintiff nor Mr. Warzel identify any factual basis for Mr. Warzel’s opinion purporting
to explain Mr. Bowser’s subjective intent, and Plaintiff did not address this in the Response
to the Motion [#39].
B.

Experts Peter Marxenhausen and Bernard Kintnerfor
Finally,

Defendant

argues

that

the

opinions

of

Peter

Marxenhausen

(“Marxenhausen”), a structural engineer, and Bernard Kintnerfor (“Kintnerfor”), a contractor,
should be precluded because they did not testify during the underlying arbitration, and the
arbitration judge made no reference to their purported opinions in issuing his damages
award. Motion to Exclude [#34] at 16 and Exs. A and B. Defendant asserts that any
attempt by Plaintiff to expand the evidence of claimed defects and damages in the
underlying case through the experts’ testimony is improper, as such opinions are not
relevant to determining whether the arbitration award is covered by the policy. Id. at 16.
Plaintiff asserts in his Response to Defendant’s Motion [#39] that it is Defendant who made
the experts’ anticipated testimony both relevant and necessary through its decision in the
Answer to contest the enforceability of the settlement agreement and the reasonableness
of the arbitration award. Id. at 3; Answer to Pl. First Am. Compl [#29] (“Answer”) at 5-6 ¶¶
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16-18. Plaintiff argues that it is therefore for the jury to determine the amount of damages,
if any, for which Defendant may be held responsible should the Court determine that
Defendant had a duty to defend in the underlying Case, and that he is not precluded from
introducing testimony from the experts in establishing such damages. Resp. to Motion
[#39] at 3.
The Court finds that the Motion to Exclude [#34] should be denied as to the opinions
of Mr. Marxenhausen and Mr. Kintnerfor. It is true that the arbitration award is controlling
in connection with coverage and the insurer’s duty to indemnify, and the insured is not
permitted to rely on evidence to contradict the findings in the underlying matter or retry the
case. See Am. Fire and Cas. Co. v. BCORP Canterbury at Riverwalk, LLC, 282 F. App’x
643, 648-49 (10th Cir. 2008) (finding in coverage litigation that the district court erred in
considering affidavits that were not presented to the state court jury because they did not
“clarif[y] whether the judgment—‘the actual liability imposed’—falls within the policy’s
coverage”) (citation omitted).
Here, however, coverage has been decided in favor of Defendant. Order on
Summary Judgment [#46] at 27. Plaintiff is not seeking indemnification, and the case is
proceeding on Plaintiff’s claim for breach of the duty to defend and bad faith claims in
connection with that duty.

Id.

Plaintiff’s designation of Mr. Marxenhausen and

Mr. Kintnerfor thus does not violate the above rule.
Moreover, Defendant has cited no authority for its argument that Plaintiff is
precluded from having witnesses who did not testify at the arbitration testify as to the
reasonableness of the arbitration award that Defendant contests in its Answer [#29], and
the Court rejects Defendant’s argument. A witness who testified at the arbitration has no
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greater authority to testify as to the reasonableness of the award than any other dulyqualified witness. In fact, such a witness could be viewed by the jury as attempting to
improperly bolster the reasonableness of the arbitration award through his or her
knowledge of the arbitration.
Finally, the amount of the arbitration award and its reasonableness are relevant to
the damages for breach of the duty to defend and the bad faith claim related thereto. See
Greer v Northwestern Nat. Ins. Co., 743 P.2d 1244, 1250 (Wash. 1987) (recoverable
damages for bad faith breach of the duty to defend “include, among other items, (1) the
amount of expenses, including reasonable attorney fees, the insured incurred in defending
the underlying action, and (2) the amount of the judgment entered against the insured in
the underlying action”) (citing 14 G. Couch, at §§ 51:157–159); see also Bainbridge, Inc.
v. Travelers Cas. Co., 159 P.3d 748, 756 (Colo. App. 2006). As explained by the Fifth
Circuit:
It is well settled that once an insurer has breached its duty to defend, the
insured is free to proceed as he sees fit; he may engage his own counsel and
either settle or litigate, at his option. . . . Having forfeited its right to conduct
the defense, the insurer is bound by the settlement or judgment. . . . A
consequence of breach, therefore, is that an insurer who wrongfully fails to
defend its insured is liable for any damages assessed against the insured,
up to the policy limits, subject only to the condition that any settlement be
reasonable.
Rhodes v. Chicago Ins. Co., 719 F.2d 116, 120 (5th Cir. 1983) (internal citations and
footnote omitted).
As Defendant asserts that the arbitration award was not reasonable, Answer [29],
the parties may present evidence on this issue at trial relevant to damages.

The

reasonableness of the arbitration award, as well as whether the agreement between
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Plaintiff and Mr. Bowser was collusive, are question of facts in this case to be determined
by the jury. Nunn, 244 P.3d at 123-24.
Accordingly, the Motion to Exclude is denied as to the opinions of Mr. Marxenhausen
and Mr. Kintnerfor.
IV. Conclusion
For the reasons set forth above,
IT IS HEREBY ORDERED that the Motion to Exclude [#34] is GRANTED IN PART,
DENIED IN PART, AND DENIED AS MOOT consistent with this Order.
IT IS FURTHER ORDERED that a proposed stipulated limiting instruction for
Mr. Warzel’s testimony shall be submitted at the Final Pretrial Conference on October 23,
2019.
Dated: October 11, 2019

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