Hiscox Dedicated Corporate Member, Ltd. v. Matrix Group Limited, Inc. et al
Filing
315
ORDER denying 229 Motion in limine; denying 230 Motion in limine; granting 231 Motion in limine; denying 232 Motion in limine; denying 233 Motion in limine; granting 236 Motion in limine; denying 238 Motion in limine; denying 240 Mot ion in limine; denying 241 Motion in limine; denying 242 Motion in limine; denying as moot 243 Motion in limine; denying 246 Motion in limine; denying 247 Motion in limine; denying 248 Motion in limine; denying as moot 249 Motion in limine; denying 252 Motion in limine; granting 253 Motion in limine; granting 262 Motion for Daubert Hearing. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 9/19/2011. (CR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HISCOX DEDICATED CORPORATE
MEMBER, LTD.,
Plaintiff,
v.
Case No.
8:09-cv-2465-T-33AEP
MATRIX GROUP LIMITED, INC.,
et al.,
Defendants.
___________________________/
ORDER
This matter comes before the Court on the following
motions:
(1)
Plaintiff’s Motion in Limine to Exclude Any and All
Evidence, Testimony or Argument of Counsel Regarding the
Pinellas County Sheriff’s Office’s Section 633.175 Request
(Doc. # 229) is DENIED.
reference,
comment,
Plaintiff seeks an order to prevent
or
presentation
of
evidence
and
prohibiting all witnesses from mentioning any information or
evidence regarding the Pinellas County Sheriff’s Office’s
request
that
Plaintiff
provide
portions
of
its
file
as
required by § 633.175, Fla. Stat., because it is irrelevant to
the issues in this case and its introduction would be unfairly
prejudicial to Plaintiff.
The Court finds that information
regarding the request is neither irrelevant nor unfairly
prejudicial.
The Court, however, will not otherwise allow
evidence concerning the lack of criminal prosecution related
to the fire loss.
(2)
See ¶ 6.
Plaintiff’s Motion in Limine Regarding References to
Handling of Evidence (Doc. # 230) is DENIED.
Plaintiff seeks
to preclude evidence, argument, or inferences to the “improper
handling of evidence,” “scene left exposed,” and “evidence not
preserved” regarding the fire loss or claim.
The motion,
however, is too nebulous, and such issues are better addressed
as they arise during trial.
(3)
Plaintiff’s Motion in Limine Excluding Any Statement
or Testimony Regarding Plaintiff’s Claim for Indemnification
(Doc. # 231) is GRANTED.
Plaintiff seeks to preclude any
mention of its right to seek indemnification from Defendants,
and the motion is granted to this extent as the Court has made
a finding as a matter of law on the issue of indemnification.
See Doc. # 231. At the beginning of trial, however, the Court
will address with the parties the issue of the amount due on
the mortgage as of July 5, 2009, as to how and when the
determination of that amount shall be made, if necessary.
(4)
Plaintiff’s Motion in Limine Regarding Absence of
Evidence (Doc. # 232) is DENIED.
Plaintiff seeks to preclude
evidence, argument, or inferences based on the absence of
2
evidence as to ADT Security Records, T-Mobile Cell Phone Tower
Records, and Preserve Community Gate Records.
Plaintiff,
however, fails to establish an adequate legal basis for the
exclusion of these records or exclusion of argument based on
the non-existence of these documents.
(5)
Defendants’ Motion in Limine to Exclude or Limit
Testimony of Kristine Gilmore and Thomas R. Hall (Doc. # 233)
is DENIED.
Defendants seek to preclude or limit certain
testimony of Gilmore, a detective with the Pinellas County
Sheriff’s Office, and Hall, a detective with the State Fire
Marshal, as cumulative and as unfairly linking the Defendants
to uncharged criminal activity. In addition, Defendants argue
that the Court is required to exclude their opinions as to the
cause and origin of the fire because of Plaintiff’s failure to
designate them as expert witnesses. The Court finds all these
arguments to be without merit. Gilmore and Hall are witnesses
as to a central issue in the trial and are not cumulative as
to Plaintiff’s expert or as to each other. These witnesses are
not offering expert opinion testimony and are not properly
excluded for failure to designate them as such. Likewise, the
Court will not preclude Plaintiff from mentioning Gilmore or
her opinions related to the cause and origin of the fire
during its opening statement.
3
(6)
Plaintiff’s Motion in Limine to Exclude Any Evidence
Regarding Criminal Prosecution or Government Determinations of
Culpability Related to the Loss or Claim (Doc. # 236) is
GRANTED.
Plaintiff seeks to preclude mention, evidence,
testimony, argument, or inferences related to the prosecution
or
lack
of
prosecution,
arrest
or
lack
of
arrest,
investigation into culpability, or government authorities’
decisions on any criminal offense related to the fire loss.
Any
evidence
or
argument
relating
to
the
criminal
investigation of culpability for the fire loss is wholly
inadmissible because it irrelevant, immaterial, and unfairly
prejudicial in a civil trial regarding insurance coverage and
would, therefore, serve only to confuse and mislead the jury.
See, e.g., FIGA v. R.V.M.P. Corp., 874 F.2d 1528, 1531 (11th
Cir. 1989); Aetna Cas. & Surety Co. v. Gosdin, 803 F.2d 1153,
1160 (11th Cir. 1986).
(7)
Plaintiff’s Motion in Limine to Preclude the Expert
Report and Testimony of Defendants’ Expert Miles Dierks (Doc.
# 238) is DENIED. The Court is disinclined to exclude Dierks,
the Defendants’ designated video expert, from testifying in
this case based on the arguments made in the motion in limine.
The concerns raised by Plaintiff can be addressed during
cross-examination of the witness.
4
The Court, however, will
hold a Daubert hearing as to Dierks.
(8)
See ¶ 18 below.
Defendants’ Motion in Limine to Preclude Evidence
Concerning Defendant Louis Orloff’s Divorce (Doc. # 240) is
DENIED.
Plaintiff must prove motive as an element of “arson
defense” to liability under the policy, and these documents
are relevant thereto. See Michigan Millers Mut. Ins. Corp. v.
Benfield, 140 F.3d 915, 921-22 (11th Cir. 1998).
The Court,
however, agrees that some of the documents contain language
that is irrelevant or too prejudicial.
The parties are
directed to provide the Court with an agreed redacted version
of the documents at the beginning of trial or an agreement as
to stipulated facts in lieu of the documents.
(9)
Plaintiff’s Motion in Limine to Preclude Certain
Expert Testimony (Doc. # 241) is DENIED.
Plaintiff seeks to
preclude Defendants’ experts from discussing, mentioning or
raising at trial any issue or any evidence not discussed or
disclosed in that expert’s report or during that expert’s
deposition testimony.
Defendants indicate in their response
that they do not disagree that experts are generally limited
to
the
opinions
expressed
in
their
report
or
otherwise
disclosed.
Defendants argue, however, that using a motion in
limine
have
to
unnecessary.
the
Court
restate
This Court agrees.
5
that
general
rule
is
(10) Plaintiff’s
Defendants
from
Motion
Asserting
in
Any
Limine
to
Theory
Not
Preclude
Provided
the
or
Identified During Discovery (Doc. # 242) is DENIED. Plaintiff
seeks to preclude Defendants from introducing any testimony,
evidence, or argument that anyone other than Defendant Louis
Orloff had motive to set the July 5, 2009, fire or that the
fire at Matrix Warehouse was “accidental.”
The issues raised
by Plaintiff can be addressed on cross-examination, but the
Court is unpersuaded that any such testimony, evidence or
argument should be excluded.
(11) Plaintiff’s Motion in Limine to Exclude Any and All
Evidence, Mention, Testimony or Argument of Counsel Regarding
Polygraph Exams or Offers to Submit to a Polygraph Exam (Doc.
# 243) is DENIED AS MOOT.
Plaintiff seeks to confirm,
pursuant to the Court’s Order of May 31, 2011 (Doc. # 158),
that there will be no argument or evidence and that all
witnesses will be precluded from mentioning polygraph exams
including Defendants’ offer to take a polygraph exam.
This
Court has already ruled on the issue and need not “confirm”
its ruling pursuant to a motion in limine.
See Doc. # 158.
(12) Plaintiff’s Motion in Limine to Preclude Evidence in
Support of the Defendants’ Amended Affirmative Defenses (Doc.
# 246) is DENIED.
Plaintiff seeks to preclude any evidence
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from being introduced in support of Defendants’ affirmative
defenses
of
estoppel,
waiver,
laches,
and
unclean
hands
because these affirmative defenses are improper, as a matter
of law, in a first-party coverage action.
The Court agrees
with Defendants that motions in limine are improper vehicles
to determine substantive issues.
See Natural Res. Def.
Council v. Rodgers, No. CIV-S-88-1658, 2005 WL 1388671, at *1
n.2 (E.D. Cal. June 9, 2005).
In addition, the Court finds
that Plaintiff did not prove entitlement to the relief sought.
(13) Plaintiff’s Motion in Limine Regarding Defendants’
Electrical Expert (Doc. # 247) is DENIED. Again, the Court is
disinclined to exclude George Page, the Defendants’ designated
electrical expert, from testifying in this case based on the
arguments made in the motion in limine.
The concerns raised
by Plaintiff can be addressed during cross-examination of the
witness.
The Court, however, will hold a Daubert hearing as
to Page.
See ¶ 18 below.
(14) Plaintiff’s Omnibus Motion in Limine to Exclude
Certain Evidence, Testimony or Argument (Doc. # 248) is
DENIED.
Plaintiff seeks an order from the Court that the
Defendants may not comment about the amount of money the
Plaintiff has spent prosecuting this case; that neither party
can state that the opposing party’s position is ridiculous;
7
that the Defendants cannot challenge Plaintiff’s counsel to
explain to the jury why it did not call certain witnesses,
etc.; and that when a witness is unavailable and a deposition
must be read into the record, neither party can advance
questions before the jury regarding the reason a witness is
not available for questioning.
The Court finds that the
motion does not concern the actual admissibility of any
particular evidence and is not a proper motion in limine.
Defendants state that they have no intention of violating any
ethical obligations to the Court or Plaintiff at trial.
(15) Plaintiff’s Motion in Limine to Exclude Any Evidence
or Argument Related to Non-Contractual Damages (Doc. # 249) is
DENIED AS MOOT.
Plaintiff seeks to preclude introduction of
evidence or argument related to or referencing damages that
are not recoverable under the insurance policy and, therefore,
not recoverable in or relevant to this action.
Defendants
submit that they have no intent to present evidence of damages
that are not recoverable under the Policy. Nor do they intend
to request the jury to grant them “bad faith” damages.
Accordingly, the motion is moot.
The Court, of course,
retains the ability to readdress the issue at trial as
necessary.
(16) Plaintiff’s Motion in Limine to Preclude Evidence
8
Regarding the Opinions of the Second District Court of Appeal
(Doc. # 252) is DENIED.
Plaintiff seeks to preclude any
evidence or argument during trial related to the opinions of
the Second District Court of Appeal, which considered the
dissolution of marriage action filed by Defendant Orloff. The
Court
finds
prejudicial.
the
documents
relevant
and
not
unfairly
If either party finds any of the language
contained therein to be prejudicial, the parties are again
directed to provide the Court with an agreed redacted version
of the documents at the beginning of trial or an agreement as
to stipulated facts in lieu of the documents.
See ¶ 8.
(17) Plaintiff’s Motion in Limine to Exclude Any Evidence
or Argument of Counsel Regarding Alleged Bad Faith (Doc. #
253) is GRANTED to the extent that Plaintiff seeks to exclude
introduction at trial of evidence or argument related to bad
faith.
Evidence of bad faith will not be admitted at trial.
The motion is otherwise DENIED.
The Court will rule on any
other such issues that arise during the course of the trial.
(18) Plaintiff’s
Request
for
Daubert
Hearing
on
Defendants’ Expert Witnesses George Page and Miles Dierks
(Doc. # 262) is GRANTED.
The Court will conduct a Daubert
Hearing during trial prior to these witnesses’ testimony.
9
DONE and ORDERED in Chambers in Tampa, Florida, this 19th
day of September, 2011.
Copies to:
All Parties of Record
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