Vermont Mutual Ins Co v. Ciccone et al
Filing
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ORDER granting Plaintiff's [79-6] Motions in Limine and denying without prejudice Defendants' [79-7] Motions in Limine. Signed by Judge Victor A. Bolden on 07/07/2015. (LaPre, E.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
VERMONT MUTUAL INSURANCE
COMPANY,
Plaintiff,
v.
PAUL E. CICCONE, PAUL E. CICCONE
d/b/a PC PROPERTIES, ELM RIDGE
DEVELOPMENT, LLC, and MIGUEL
MARTINEZ
Defendants.
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CIVIL ACTION NO.:
3:09-cv-00445-VAB
JULY 7, 2015
MEMORANDUM OF DECISION ON MOTIONS IN LIMINE
I.
INTRODUCTION
On October 2, 2014, the Court instructed the parties to file a Joint Trial
Memorandum attaching motions in limine along with memoranda of law concerning any
anticipated evidentiary problems. (ECF No. 75 at 4.) The parties filed their Joint Trial
Memorandum (ECF No. 79) on November 6, 2014 and attached five motions in limine.
For the reasons stated below, Plaintiff’s two motions (ECF No. 79-6) are GRANTED and
Defendants’ three motions (ECF No. 79-7) are DENIED without prejudice.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Vermont Mutual Insurance Company (“Vermont Mutual”) issued to Karen
Ciccone and Defendants Paul E. Ciccone (“Ciccone”) and Elm Ridge Development, LLC
(“Elm Ridge”) (together, the “Named Insureds”) a business owner’s insurance policy for
the period March 1, 2007 through March 1, 2008 (the “Policy”). Under the Policy,
Vermont Mutual agreed to defend the Named Insureds against any suit alleging bodily
injuries caused by an occurrence within the coverage territory during the effective period
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of the Policy, and to indemnify the Named Insureds with respect to any liability arising
from such a suit. However, Vermont Mutual’s obligations under the Policy were subject
to certain exclusions that included workers’ compensation, employer’s liability, and
professional services.
In August 2007, during the effective period of the Policy, Defendant Martinez fell
from the roof of a building upon which he was working and sustained injury. The
building was owned or occupied by Ciccone and/or Elm Ridge and located within the
Policy’s coverage territory. According to the Complaint, inspectors from the
Occupational Safety and Health Administration (“OSHA”) arrived at the premises on the
same day to investigate the accident and interviewed Ciccone. OSHA prepared a
report (the “OSHA Report”) following the visit. According to the Complaint, the OSHA
Report indicates that Ciccone made various statements tending to show that he was
Martinez’s employer at the time of the accident.
Martinez filed a workers’ compensation claim against Ciccone d/b/a PC
Properties and Elm Ridge in or about January 2008 (the “Workers’ Compensation
Action”) and filed a personal injury lawsuit against Ciccone, Ciccone d/b/a PC
Properties, and Elm Ridge (the “Ciccone Defendants”) in Connecticut Superior Court in
December 2008 (the “State Court Action”).
Vermont Mutual commenced this declaratory judgment action on March 19, 2009
seeking declarations that it is not obligated under the Policy to defend or indemnify the
Ciccone Defendants with respect to the Workers’ Compensation Action or the State
Court Action. On summary judgment, the Court dismissed those counts of Vermont
Mutual’s complaint seeking declarations that Vermont Mutual was not obligated to
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defend the Ciccone Defendants in the State Court Action. See Vermont Mut. Ins. Co. v.
Ciccone, 900 F. Supp. 2d 249, 274 (D. Conn. 2012).
Vermont Mutual contends that (i) the Policy’s exclusion for liability under
“Workers’ Compensation and Similar Laws” means there is no defense or indemnity
coverage for the Workers’ Compensation Action; (ii) the Policy’s exclusion for
“Employer’s Liability” means there is no indemnity coverage for the State Court Action
because Martinez was acting as Ciccone or Elm Ridge’s employee at the time of his
injury; and (iii) the Policy’s exclusion for “Professional Services” means there is no
indemnity coverage for the State Court Action because Ciccone and/or Elm Ridge were
providing supervisory, inspection, or engineering services in connection with the roofing
project. (ECF No. 79-4 at 2.) The parties contest whether these three exclusions apply
to bar coverage in this case.
Contested issues of fact include whether Martinez was acting as an employee of
Ciccone and/or Elm Ridge at the time of his injury and whether Ciccone and/or Elm
Ridge were acting in a supervisory role in connection with the roofing project.
Furthermore, Defendants maintain that the exclusions on which Vermont Mutual relies
are ambiguous, and that the parties did not intend to exclude from coverage services
that an insured provides to itself. (ECF No. 79-4 at 4-5.)
III.
DISCUSSION
A.
Standard of Review
The purpose of a motion in limine is to allow the trial court to rule in advance of
trial on the admissibility and relevance of certain forecasted evidence. See Luce v.
United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
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1996). Evidence should be excluded on a motion in limine only when the evidence is
clearly inadmissible on all potential grounds. Levinson v. Westport Nat’l Bank, No. 3:09CV-1955 VLB, 2013 WL 3280013, at *3 (D. Conn. June 27, 2013). Courts considering a
motion in limine may reserve judgment until trial, so that the motion is placed in the
appropriate factual context. See Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E.
Myers Co. Grp., 937 F. Supp. 276, 287 (S.D.N.Y. 1996).
1.
Motion in Limine #1 – Vermont Mutual’s Motion to Preclude
Any Reference to the Ciccone Defendants’ Lack of Assets
Plaintiff moves to preclude all evidence related to the Ciccone Defendants’ lack
of assets on the grounds that such evidence (i) is not relevant, (ii) is inadmissible under
Fed. R. Evid. 411, and/or (iii) would cause undue prejudice and/or mislead the jury.
(ECF No. 79-6 at 2, 6-8.) Defendants have not opposed this motion.
This motion is GRANTED. Evidence related to Defendants’ assets is not
relevant because the amount of Defendants’ assets is not a fact of consequence in
determining this action. Fed. R. Evid. 401; see also Vasbinder v. Ambach, 926 F.2d
1333, 1344 (2d Cir. 1991) (noting that evidence of defendant’s ability to pay is normally
not admitted during liability and compensatory damages phase of case). The questions
presented in this case are limited to whether an employer-employee relationship existed
and whether certain of the Policy’s coverage exclusions apply. Evidence related to
Defendants’ assets or Defendants’ ability to compensate Martinez for his injuries would
not assist the jury in resolving any of those questions.
2.
Motion in Limine #2 – Vermont Mutual’s Motion to Preclude
Any Reference to the Nature and Extent of Martinez’s Injuries
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Plaintiff moves to preclude all evidence related to the nature and extent of
Martinez’s injuries and medical treatment on the grounds that such evidence (i) is not
relevant and (ii) would cause undue prejudice and/or mislead the jury. (ECF No. 79-6 at
11, 15-17.) Defendant Martinez objects on the grounds that Martinez’s injuries are
“important contextually” because they prompted the need for coverage and because
they influenced the statements that Ciccone made to OSHA at or near the time of the
accident. (See ECF No. 80 at 1.) Martinez further contends that any potential prejudice
can be cured with a limiting instruction advising the jury that Martinez’s injuries are
relevant only to explain the circumstances under which Ciccone made his comments to
OSHA. (ECF No. 80 at 1.)
This motion is GRANTED. The nature and extent of Martinez’s injuries and/or
medical treatment is not a fact of consequence in determining this action, which is
concerned with only the limited questions of whether an employer-employee
relationship existed and whether certain of the Policy’s coverage exclusions apply.
Evidence of Martinez’s injuries is not relevant to those questions. Fed. R. Evid. 401. To
the extent that Defendants seek to offer such evidence to impeach the credibility of
Ciccone’s prior statements to OSHA, the Court concludes that the probative value of the
evidence would be substantially outweighed by the dangers of unfair prejudice and
misleading the jury. Fed. R. Evid. 403.
3.
Motion in Limine #3 – Defendant’s Motion to Preclude
Statement of Ramon Martinez
As an initial matter, the Court notes that Defendant Martinez’s “Motions in Limine
and Memorandum of Law” (ECF No. 79-7) is a four-page document containing scarce
citations to legal authorities. The document states that Defendant Martinez intends to
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supplement with “more elaboration and legal authority,” (ECF No. 79-7 at 2), but
Martinez has not done so in the several months since the document’s filing and has not
replied to Plaintiff’s objections to his motions in limine. The Court set forth the
procedure and timeline for submitting and opposing motions in limine in its October 2,
2014 order (ECF No. 75), and will take the papers as submitted.
Defendant Martinez moves to preclude a statement of his brother, Ramon
Martinez, and translation thereof on the grounds that the statement and translation are
(i) attorney work product and/or (ii) inadmissible hearsay. (ECF No. 79-7 at 2.)
Specifically, Martinez asserts that the statement in question was taken by an
investigator at the direction of Martinez’s counsel in anticipation of litigation and is
therefore work product. (Id.) Further, Martinez argues that the statement is hearsay
and not subject to any exception to the general hearsay rule. (Id.) Finally, Martinez
contends that the translation is not sufficiently reliable because there are no indications
of the translator’s qualifications and because Defendant Martinez’s counsel obtained the
translation merely to “get a general idea of what was being said” and the translation was
not intended to be used in court. (Id.)
This motion is DENIED without prejudice. Martinez has not provided sufficient
information regarding the contents of the statement and the circumstances of its taking
for the court to make a determination as to its potential work product status. In addition,
Martinez argues that the statement is hearsay, but does not explain what matter is
asserted in the statement, the truth of which the statement would be offered to prove,
and the Joint Trial Memorandum does not help in this regard. According to the Joint
Trial Memorandum, the parties continue their efforts to subpoena Ramon Martinez. If
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Ramon Martinez attends trial, his recorded statement may be unnecessary. However, if
the parties are unable to secure Ramon Martinez’s attendance at trial, then Defendants
may renew this motion as prescribed at the end of this order.
4.
Motion in Limine #4 – Defendant’s Motion to Preclude
Deposition and/or Statement of Javier Rivera
Defendant Martinez moves to preclude the deposition and/or statement of Javier
Rivera on the grounds that the deposition was a discovery deposition that counsel for
Martinez did not attend and is inadmissible hearsay. (ECF No. 79-7 at 4.)
This motion is DENIED without prejudice. Martinez argues that the deposition
and statement are hearsay, but does not explain what matter is asserted in the
deposition and statement, the truth of which the deposition and statement would be
offered to prove. Moreover, the parties continue their efforts to subpoena Mr. Rivera. If
Mr. Rivera attends trial, his deposition and statement may be unnecessary. However, if
the parties are unable to secure Mr. Rivera’s attendance at trial, then Defendants may
renew this motion as prescribed at the end of this order.
5.
Motion in Limine #5 – Defendant’s Motion to Preclude OSHA
Report
Defendant Martinez moves to preclude the OSHA Report on the grounds that it
contains hearsay, contains opinions and conclusions, and that Vermont Mutual never
disclosed the OSHA representatives as expert witnesses. (ECF No. 79-7 at 4-5.)
This motion is DENIED without prejudice. Martinez argues that the OSHA
Report contains hearsay, but does identify which portions he contends are hearsay and
does not explain any matter(s) asserted in the OSHA Report, the truth of which the
OSHA Report would be offered to prove. Martinez provides no legal authorities to
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support his contentions that the OSHA Report should be excluded because it contains
“opinions and conclusions” and because Vermont Mutual did not disclose OSHA
representatives as expert witnesses. The court grants Martinez leave to renew this
motion as prescribed at the end of this order.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s motions in limine are GRANTED and
Defendant’s motions in limine are DENIED without prejudice.
Any renewal of any motion in limine denied without prejudice shall be filed on or
before August 10, 2015. Any such motion shall identify with particularity the evidence
that is the subject of the motion, and shall be accompanied by a separate memorandum
of law explaining the asserted grounds for preclusion and citing applicable authorities.
Oppositions must be submitted on or before August 17, 2015. The Court will hear
argument on any outstanding motions in limine during the final pre-trial conference set
for August 24, 2015.
SO ORDERED at Bridgeport this seventh day of July 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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