Hayas v. Geico General Insurance Company

Filing 106

ORDER: GEICO General Insurance Company's Motion to Strike Plaintiff's Supplemental Expert Disclosure 78 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 10/22/2014. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KENNETH E. HAYAS,
Plaintiff,
v.

Case No. 8:13-cv-1432-T-33AEP

GEICO GENERAL INSURANCE
COMPANY,
Defendant.
______________________________/
ORDER
This cause is before the Court pursuant to Defendant
GEICO

General

Insurance

Company’s

Motion

to

Strike

Plaintiff’s Supplemental Expert Disclosure, which was filed
on August 28, 2014, specifically to exclude Dale Swope, Esq.
from providing testimony in this matter. (Doc. # 78 at ¶ 6).
Plaintiff Kenneth Hayas filed a Response in Opposition to the
Motion to Strike on September 15, 2014. (Doc. # 86).

For the

reasons that follow, the Court denies the Motion.
I.

Background
Hayas was the owner of a 1999 Ford automobile that was

insured by GEICO on September 28, 2009. (Doc. # 5 at ¶¶ 56). On that date, while the insurance policy was in full
effect, Hayas negligently operated the automobile resulting
in an accident with William Ryan. (Id. at ¶¶ 6, 8). As a

consequence, Ryan sustained serious injuries and died due to
those injuries. (Id. at ¶ 6). At the time of the accident,
Hayas’ GEICO insurance policy provided bodily injury limits
of $100,000.00 per person and $300,000.00 per occurrence.
(Id. at ¶ 7).
Ryan’s Estate made a claim against Hayas, and GEICO
undertook to defend Hayas. (Id. at ¶¶ 9-10). Hayas alleges
that a settlement opportunity arose, but GEICO failed to
settle the claim. (Id. at ¶ 11). Instead, Ryan’s Estate
obtained a jury verdict against Hayas and a final judgment
was entered against Hayas in Polk County, Florida, in the
total amount of $1,610,210.41. (Id. at ¶ 15).
Hayas in turn filed the present action against GEICO for
“bad faith” on May 31, 2013, and filed an Amended Complaint
on June 10, 2013. (Doc. ## 1, 5). Among other allegations,
Hayas alleges that GEICO breached its “duties of good faith
in the handling of the claims made against [Hayas] by acting
in bad faith” by:
(1) failing to act fairly and honestly and with due
regard for Hayas’ interests; (2) failing to
initiate settlement negotiations after learning
that Hayas was exposed to liability for damages in
excess of his policy limits; (3) failing to conduct
settlement negotiations in good faith; (4) failing
to settle the underlying claims when GEICO could
have done so and should have done so; (5) failing
to exercise reasonable diligence; (6) negligently

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adjusting, investigating, and defending the claims;
(7) failing to adopt and implement standards for
proper claims investigation and handling; (8)
failing to properly train its adjustors and claims
personnel; (9) failing to communicate with Hayas
honestly;
(10)
failing
to
advise
Hayas
of
settlement opportunities, the likelihood of a
recovery in excess of policy limits, and the steps
that might be taken to avoid the same; (11) failing
to provide Hayas competent assistance; (12) failing
to take all reasonably possible steps necessary to
settle the claims against Hayas that a reasonable
person would have taken; (13) putting GEICO’s own
interests ahead of Hayas’ interests; (14) failing
to follow the laws, statutes, governmental and
industry standards and regulations and GEICO’s own
policies that apply to the handling of liability
claims by insurance companies; (15) failing to
accept an agreement that would have prevented entry
of an excess judgment against Hayas; (16) failing
to identify potential claimants and take action to
settle the claims; (17) failing to accept an
express, written offer to settle the claims against
Hayas for an amount available within policy limits;
and (18) failing to timely advise Hayas of the
likelihood of an excess verdict against him and the
steps Hayas could take the avoid the same or lessen
its financial impact upon him.
(Doc. # 5 at ¶ 19).
In support of these claims, Hayas filed a supplemental
expert disclosure on June 25, 2014. In response, on August
28, 2014, GEICO General Insurance Company filed the present
Motion to Strike Plaintiff’s Supplemental Expert Disclosure
requesting

that

the

Court

(1)

enter

an

Order

striking

Plaintiff’s Supplemental Expert Disclosure, (2) exclude Dale
Swope, Esq. as an expert witness, and (3) prohibit Mr. Swope

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from providing any opinion testimony or evidence in this
matter, which is now ripe for the Court’s review. (Doc. #
78).
II.

Legal Standard
The district court has broad discretion to determine

the admissibility of evidence, and the appellate court will
not disturb this Court’s judgment absent a clear abuse of
discretion.

United States v. McLean, 138 F.3d 1398, 1403

(11th Cir. 1998); see also United States v. Jernigan, 341
F.3d 1273, 1285 (11th Cir. 2003)(“Inherent in this standard
is the firm recognition that there are difficult evidentiary
rulings that turn on matters uniquely within the purview of
the

district

documentary

court,
evidence

which
and

has
is

first-hand

physically

access

to

proximate

to

testifying witnesses and the jury.”).
An abuse of discretion can occur where the district court
applies the wrong law, follows the wrong procedure, bases its
decision on clearly erroneous facts, or commits a clear error
in judgment.

Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315

(11th Cir. 2005)(citations omitted).
Circuit has

Further, the Eleventh

pronounced: “We will only reverse a district

court’s ruling concerning the admissibility of evidence where
the appellant can show that the judge abused his [or her]

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broad

discretion

and

that

the

decision

affected

the

substantial rights of the complaining party.” Wood v. Morbark
Indus., Inc., 70 F.3d 1201, 1206 (11th Cir. 1995).
III. Analysis
A.

Untimeliness

From a review of the record, it cannot be disputed that
Hayas’ supplemental expert disclosure was untimely, and the
Court

would

be

amply

justified

in

striking

the

expert.

However, in the interest of fairness, the Court declines to
do so. A thorough review of the parties’ submissions reveals
that GEICO was not prejudiced by Hayas’ untimely disclosure.
In fact, Hayas represents that in 2013, it informed counsel
for GEICO, by way of initial disclosures, that he planned to
use Dale Swope, Esq. as a witness. (Doc. # 86 at 3).

GEICO

elected not to depose Mr. Swope, as it was counsel for Hayas
that set Mr. Swope’s recent deposition. (Id.).
This is not a case of a surprise witness revealed on the
eve of trial in an effort to gain an unfair advantage.

To

the contrary, Hayas identified Mr. Swope, the attorney from
the underlying action, as a witness in his initial disclosures
in accordance with Fed. R. Civ. P. 26. (Id.). Considering the
procedural history of this case and the lack of surprise or
prejudice resulting from the untimely disclosure, the Court

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declines to strike Mr. Swope on the basis of the belated
disclosure.
B.

Expert Testimony

In addition to challenging the expert on the basis of
their

untimely

disclosure,

GEICO

asserts

that

Mr.

Swope

should be excluded as an expert because “Plaintiff seeks to
circumvent Rule 26(a)(2)(B) and violate the spirit and intent
of the expert disclosure rule.” (Doc. # 78 at 9).
The admissibility of expert testimony is governed by
Federal Rule of Evidence 702, which states that:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized
knowledge will help the trier of fact to
understand the evidence or to determine a fact
in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is
the product of reliable principles and
methods, and (d) the expert has reliably
applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
Rule

702

is

a

codification

of

the

Supreme

Court’s

landmark case of Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).

In Daubert, the Court described

the gatekeeping function of the district court to ensure
expert testimony and evidence “is not only relevant, but

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reliable.” Id. at 589.

As stated in the Advisory Committee

Notes accompanying Rule 702 of the Federal Rules of Evidence,
“A review of the case law after Daubert shows that the
rejection of expert testimony is the exception rather than
the rule.” See Advisory Committee Notes to the 2000 Amendment
to Rule 702.

In addition, the trial judge is afforded broad

discretion in deciding Daubert issues. See Kuhmo Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999).
At this juncture, the Court declines to evaluate the
substance

of

the

proffered

expert

testimony

against

the

touchstones of Daubert and Rule 702 as the material testimony
is the subject of Defendant’s separate Motions in Limine.
(Doc. # 79). This Court finds that it would be premature to
prohibit Mr. Swope from providing any testimony or evidence
in

this

matter,

whether

that

be

lay

opinion

or

expert

testimony. Therefore, the Court denies the Motion to Strike;
however, GEICO is free to re-raise its challenge to Mr.
Swope’s

testimony

during

the

course

of

the

trial,

if

appropriate under the circumstances presented.
The Court notes that Hayas will be required at trial to
properly qualify Mr. Swope as an expert, if possible, in
accordance with the standards set forth in the Federal Rules
of Civil Procedure.

Even if Mr. Swope is properly qualified

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as an expert at trial, this Court will not allow Mr. Swope,
to offer impermissible legal conclusions, testimony of which
he is not qualified to opine, testimony excluded by motions
in limine prior to trial, redundant testimony, irrelevant
testimony, and testimony based on speculation as to the
parties’ intent.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
GEICO

General

Insurance

Company’s

Motion

to

Strike

Plaintiff’s Supplemental Expert Disclosure (Doc. # 78) is
DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
22nd day of October, 2014.

Copies: All Counsel of Record

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