Hayas v. Geico General Insurance Company

Filing 107

ORDER: Plaintiff Kenneth E. Hayas' Motion in Limine 80 is DENIED. Defendant GEICO General Insurance Company's Motions in Limine 84 are GRANTED in part and DENIED in part as detailed herein. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 11/3/2014. (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 comes before the Court in consideration of
Defendant GEICO General Insurance Company’s (“GEICO”) Motion
in Limine (Doc. # 79) and Plaintiff Kenneth E. Hayas’ Motions
in Limine (Doc. # 80), both filed on August 28, 2014.
motions are ripe for the Court’s review.

Both

For the reasons

that follow, the Motions are granted in part and denied in
part as detailed herein.
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 1. (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 contends that GEICO breached its “duties of good faith
in the handling of the claims made against [Hayas] by acting

1

Mr. William Ryan was involved in the automobile accident
from which this bad faith litigation arises and died due to
his injuries. (Doc. # 5 at ¶¶ 6, 8) His wife, Vicki Ryan, as
personal representative of William Ryan’s Estate brought the
underlying claims against Hayas. (Doc. # 5). For clarity the
Court will refer to William Ryan as “Ryan” and Vicki Ryan as
“Ryan’s Estate.”

2

in bad faith” detailing various “failings” by GEICO related
to the settlement discussions. (see Doc. # 5 at ¶ 19).
Presently before the Court are both parties’ respective
Motions in Limine. (Doc. ## 79-80).

The Court has reviewed

the Motions as well as the relevant responses and is otherwise
fully advised in the premises.
II.

Legal Standard
“A

motion

in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,
remains subject to reconsideration by the court throughout
the trial.”

In re Seroquel Prods. Liab. Litig., Nos. 6:06-

md-1769-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 WL 260989,
at *1 (M.D. Fla. Feb. 4, 2009).

“The real purpose of a motion

in limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence
which may irretrievably [a]ffect the fairness of the trial.
A court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds.”
Id. (internal quotation omitted).
A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.

3

See LSQ Funding Grp. v. EDS

Field Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012)
(citing Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No.
07-80172-CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5,
2008)).

“Denial of a motion in limine does not necessarily

mean that all evidence contemplated by the motion will be
admitted at trial.” In re Seroquel, 2009 WL 260989, at *1
(internal quotation marks omitted). “Instead, denial of the
motion means the court cannot determine whether the evidence
in question should be excluded outside the trial context.”
Id.

“The

court

will

entertain

objections

on

individual

proffers as they arise at trial, even though the proffer falls
within the scope of a denied motion in limine.”

Id.

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
court, which has first-hand access to documentary evidence
and is physically proximate to testifying witnesses and the
jury.”).

4

III. Hayas’ Motions in Limine
Hayas seeks to preclude GEICO from introducing at trial
evidence relating to: (1) GEICO’s actions after the October
21, 2009, offer was rejected operated as an acceptance of the
offer, (2) Opinion concerning the motives of third persons,
(3) GEICO presenting that it was “set up” to commit bad faith,
(4) Any attempts by GEICO to elicit testimony regarding
attorney-client privileged or work product-protected matters,
(5) GEICO referring to the criminal proceedings and sentence
against

Hayas

resulting

from

the

automobile

accident,

including Hayas’ intoxication at the time of the accident,
and (6) GEICO’s expert, attorney John B. Atkinson, from
offering legal “opinions” at trial. (Doc. # 80).

The Court

will address each of these issues in turn.
A.

Hayas

Exclusion of Evidence That GEICO’s Actions Operated
as an Acceptance of the Offer
argues

that

GEICO

should

be

precluded

from

introducing evidence that GEICO’s actions after the October
21, 2009, offer was rejected operated as an acceptance of the
offer. (Id. at 3). Hayas contends that GEICO was presented
with a pre-suit settlement opportunity from the underlying
plaintiff, Ryan’s Estate, on October 21, 2009, that would
have

resolved

all

claims

against

5

Hayas

within

coverage.

(Id.). “The offer specifically advised GEICO, ‘[t]herefore,
any attempt to provide us with a release from this point
forward which contains a hold harmless or indemnity agreement
. . . will act as a rejection of this good faith offer.’”
(Id.)(citing Straughn ltr of Oct. 21, 2009). Thereafter, on
October 22, 2009, GEICO delivered a check and release to
counsel for Ryan’s Estate. (Doc. # 80 at 3). Hayas avers that
because the release contained a hold harmless and indemnity
agreement, it was a rejection of the offer from Ryan’s Estate.
(Id.). Hayas maintains that this evidence must be excluded
under Federal Rules of Evidence 402 and 403 and the law
governing settlement agreements in the State of Florida. (Id.
at 1-2).
GEICO
Estate’s

responds

claim

are

that

its

relevant

actions

and

to

settle

admissible

to

Ryan’s

determine

whether GEICO acted in bad faith under the totality of the
circumstances. (Doc. # 84 at 2). GEICO argues that it “was at
all times willing and trying to settle Ryan’s Estate’s claim
for

the

policy

limits.

Accordingly,

GEICO’s

actions

of

complying with the terms of Ryan’s Estate’s demand letter are
directly relevant to whether GEICO acted in good faith. . .
.” (Id. at 3). Additionally, GEICO maintains that the “actions
taken after October 22, 2009, are directly relevant to Ryan’s

6

Estate’s unwillingness to settle.” (Id. at 3-4). The Court
agrees.
In this “bad faith” case, the post demand actions of
GEICO are a material component surrounding Hayas’ claims
against GEICO. Therefore, the Court finds evidence of actions
post October 21, 2009, to be relevant under Rule 401, and
further finds that the probative value of this evidence is
not substantially outweighed by the concerns enumerated in
Rule 403. Hayas’ Motion in Limine with regard to GEICO’s
actions after October 21, 2009, is thus denied.
B.

Exclusion of Opinions Concerning the Motives of
Third Persons

Hayas argues that GEICO “will attempt to raise certain
defenses by introducing certain evidence, eliciting testimony
from witnesses, and presenting argument of counsel in an
attempt to offer opinions regarding the motives of third
persons, during their testimony.” (Doc. # 80 at 5). It is
Hayas’ position that “an expert may not testify to an opinion
regarding another person’s motives or state of mind” as such
opinion is not a proper subject of lay witness or expert
testimony. (Id.). Furthermore, Hayas states that “no expert
in this case is qualified to render an opinion regarding
another person’s motives because none of them are a mind-

7

reader.” (Id. at 6). Hayas claims that under Federal Rules of
Evidence 701 and 702 neither a lay witness nor an expert
should be permitted to testify about the motives or state of
mind of any other person. (Id. at 7).
GEICO responds that Hayas’ argument is “a straw man
argument designed to preclude GEICO from introducing relevant
evidence regarding Ryan’s [Estate’s] willingness, or lack
thereof,

to

settle

the

claim

against

Hayas

within

the

applicable policy limits.” (Doc. # 84 at 4). In particular,
GEICO argues that Ryan’s Estate’s “unwillingness to settle
the claim against Hayas is relevant to whether GEICO had a
realistic opportunity to settle same and is a factor under
the totality of the circumstances that must be considered by
the jury in this case.” (Id. at 5).
Furthermore, GEICO asserts that the opinion testimony it
intends to present does not constitute impermissible comment
on the subjective intent or state of mind of any person. (Id.
at 9). To that end, GEICO provides that, “an expert witness
may testify in the form of an opinion if, the testimony is
based upon sufficient facts or data, the testimony is the
product of reliable principles and methods, and the witness
has applied the principles and methods reliably to the facts
of this case.” (Id. at 8). GEICO contends that the testimony

8

regarding Ryan’s Estate’s unwillingness to settle are based
on the actions of Ryan’s Estate during the pendency of the
underlying matter. (Id.). An examination of that conduct will
be based on the relevant evidence rather than speculation as
to Ryan’s Estate’s intent or thought process. (Id. at 9).
Likewise,

GEICO

states

that

“lay

witness

opinions

regarding the willingness of Ryan’s Estate and counsel to
settle

within

the

applicable

policy

limits

is

also

permissible under the Federal Rules of Evidence.” (Id.).
Further, pursuant to Rule 701, “lay witness testimony can
take ‘the form of opinions or inferences drawn from her
observations when testimony in that form will be helpful to
the trier of fact.’” (Id. at 10).
As

GEICO

aptly

states:

“[E]vidence

relating

to

the

willingness, or lack thereof, of Ryan’s [Estate] and counsel
to settle the claim against [Hayas] within the applicable
policy limits is relevant to the issue of whether GEICO had
a realistic opportunity to settle under the totality of the
circumstances.” (Id. at 11). The Court finds that opinion
testimony based on perception and observation relating to
Ryan’s Estate’s willingness or unwillingness to settle to be
proper consideration for the jury in determining the outcome
of this action. The Court also finds that this testimony would

9

not be unfairly prejudicial to Hayas. Accordingly, the Court
denies Hayas’ Motion in Limine as to opinions concerning the
state of mind or intent of third parties.
C.

Exclusion of Evidence That GEICO was “set up” to
Commit Bad Faith

Hayas next seeks to exclude evidence which raises a
defense that GEICO was “set up” by Ryan’s Estate’s counsel in
the underlying action. (Doc. # 80 at 9). Hayas states that he
anticipates GEICO “will attempt to place evidence before the
jury as to the state of mind of Ryan’s Estate’s counsel in
allegedly setting up GEICO, both by cross-examining witnesses
and

eliciting

counsel.”

direct

(Id.).

testimony

According

to

from

Ryan’s

Hayas,

this

[Estate’s]
conduct

is

impermissible under Rules 401 and 403 because “evidence of
this issue is too speculative to be reliably placed before
the trier of fact in this case” by either a lay or expert
witness. (Id. at 11-12).
In addition, Hayas contends that “apart from the lack of
merit

from

a

legal

and

evidentiary

perspective,

any

speculation by GEICO into Ryan’s Counsel’s state of mind to
avoid the claims of Hayas in this case is also precluded due
to GEICO’s failure to plead this defense” as an affirmative
defense under Fed. R. Civ. P. 8(c). (Id. at 13). Hayas offers

10

support for his argument in stating “speculation into state
of mind of various attorneys who are not parties to this
action to argue that such attorneys ‘set up’ GEICO is a
legally deficient argument that is unrelated to the issue of
whether GEICO breached its fiduciary duty to Hayas so to be
subject to extra contractual liability.” (Id. at 14). As GEICO
did not give fair notice of this avoidance for trial, Hayas
argues that it is thereby waived and excluded from this case.
(Id.).
GEICO responds that Hayas’ Motion in Limine “should be
denied because it seeks to exclude relevant and probative
evidence that clearly supports GEICO’s Affirmative Defenses.”
(Doc. # 84 at 11). Specifically, GEICO’s third affirmative
defense states “under the totality of the circumstances,
GEICO did not have a realistic opportunity to settle the
subject claim within the applicable policy limits.” (Id. at
12). GEICO’s fourth affirmative defense further states “Ryan
was unwilling to settle her claim against Plaintiff within
the applicable policy limits.” (Id.). GEICO asserts that
whether Ryan’s Estate or counsel “set up” GEICO for bad faith
is

within

the

jury’s

purview,

but

it

is

not

a

defense

proffered by GEICO. (Id.). It is GEICO’s contention that Hayas

11

is trying to “recast GEICO’s Affirmative Defenses to set forth
a waiver argument, where none exists.” (Id. at 13).
The

Court

finds

that

evidence

relating

to

Ryan’s

Estate’s willingness or unwillingness to settle its claim
against Hayas to be a legitimate and relevant factual concern
that may be presented at trial. It would be inappropriate for
GEICO

to

set

forth

a

defense

at

trial

that

was

not

appropriately raised, but GEICO, through its response in
opposition to Hayas’ Motions in Limine, has stated that it
does not intend to present evidence that GEICO was “set up”
by Ryan’s Estate or counsel. (Doc. # 84 at 12). Therefore,
the Court denies as moot this Motion in Limine.
D.

Exclusion of Testimony Regarding Attorney-Client
Privileged or Work Product-Protected Matters

Hayas argues that at trial, GEICO may question him, his
attorneys from the underlying matter, Dale Swope and Todd
Miller, and Ryan’s Estate, about matters that are protected
by the attorney-client privilege and work product doctrine.
(Doc. # 80 at 15). Hayas seeks to preclude this questioning
“to the extent these objections have been sustained” because,
if permitted, it will cause “Hayas’ attorneys to continuously
object to these inquiries, not only disrupting the trial but
confusing the jury.” (Id.). Hayas contends that he has not

12

waived the attorney client privilege with either Swope or
Miller. (Id.).
GEICO responds that “Plaintiff fails to specifically
identify

any

privileged

or

protected

materials

and

communications and makes only vague reference to matters that
GEICO inquired about during the course of discovery in this
case.” (Doc. # 84 at 14-15). GEICO contends that Hayas’ “broad
and non-specific” motion prevents GEICO from being able to
challenge the privilege assertions. (Id. at 15).
Due to the unspecific nature of Hayas’ Motion, this Court
cannot make rulings on such assertions of privilege at this
time. Those issues will come before the Court at trial upon
proper

objections

by

counsel

when

allegedly

privileged

testimony is elicited by either party. Neither Hayas nor GEICO
may use the attorney client privilege as a sword and shield
to unfairly prejudice the other. For the reasons articulated
above, Hayas’ Motion in Limine is denied without prejudice
and Hayas may address this issue at trial, if appropriate.
E.

Exclusion of References to Criminal Proceedings and
Sentence Against Hayas

Hayas states that he anticipates GEICO will attempt to
introduce evidence of criminal charges brought against him
after the automobile accident, for the purpose of biasing the

13

jury against him. (Doc. # 80 at 17). Hayas argues that “the
criminal proceedings and Mr. Hayas’ intoxication must not be
presented to the jury because it is inadmissible irrelevant
evidence.” (Id.). Hayas contends that “informing the jury
that Mr. Hayas was driving under the influence of alcohol at
the time of the accident is inadmissible character evidence”
under Rule 404(b). (Id.). “By introducing evidence of Mr.
Hayas’

intoxication,

GEICO

will

endeavor

to

portray

its

insured as irresponsible, unlawful, and ‘bad’ – the kind of
person who would try to ‘set-up’ his insurance company for
bad faith.” (Id.).
GEICO counters by stating that “evidence of [Hayas’]
intoxication

and

criminal

investigation

are

directly

intertwined with the present bad faith litigation.” (Doc. #
84 at 16). GEICO argues that Hayas’ alcohol use and the
criminal investigation are relevant to GEICO’s handling of
this claim and the decision to forego certain defenses in an
effort to protect Hayas. (Id.). GEICO maintains that Hayas’
intoxication

and

criminal

investigation

is

part

of

the

totality of the circumstances that must be presented to the
jury. (Id.).
Moreover, GEICO asserts that Hayas “seeks to recover the
full excess judgment entered against him in the underlying

14

case,” which includes $5,000 punitive damages premised on
Hayas’ intoxication. (Id. at 18). It is GEICO’s position that
to exclude evidence of the $5,000 punitive damages while Hayas
seeks to recover the entire excess judgment amount would be
“wholly inequitable.” (Id.).
This Court finds Hayas’ arguments to be without merit.
Rule 404(b)(1) states that “evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted
in

accordance

with

the

character.”

GEICO

asserts

that

evidence of intoxication is inextricably intertwined with
Hayas’

bad

faith

action

in

that

Hayas’

intoxication

is

relevant to the impact on Ryan’s Estate and its willingness
to settle. (Doc. # 84 at 17). As the evidence of intoxication
is not being offered, at this time, to prove Hayas’ character,
it is appropriate for the jury to evaluate the evidence as it
is inextricably intertwined with Ryan’s Estate’s willingness
to settle.
Additionally, the Court finds that the probative value
of this evidence is not substantially outweighed by the
concerns enumerated in Rule 403. Hayas’ Motion in Limine with
regard to evidence of intoxication and criminal proceedings
is thus denied.

15

F.

Exclusion of GEICO’s Expert, Attorney
Atkinson, From Offering Legal “Opinions”

John

B.

Hayas argues that GEICO’s expert, John B. Atkinson’s,
report contains “numerous impermissible legal conclusions or
instructions about the law” and anticipates that Atkinson
will offer these “opinions” at trial. (Doc. # 80 at 18). Hayas
states

that

“a

witness

may

not

testify

to

the

legal

implications of conduct; the court may be the jury’s only
source of law,” and Atkinson should not be allowed “to offer
legal conclusions at trial that are couched as ‘opinions.’”
(Id. at 20). It is Hayas’ position that “by testifying about
Florida law, Atkinson is attempting to eclipse the role of
the Court and Hayas would suffer extreme prejudice if the
Court permits GEICO’s expert to advocate its version of
Florida law to the jury.” (Id. at 21). Therefore, Hayas
requests that Atkinson’s “opinions” be excluded from trial.
(Id.).
GEICO responds that Hayas “seeks to prevent GEICO’s
expert from testifying about matters that are within his
expertise, are appropriate for the present action, and will
be helpful to the jury.” (Doc. # 84 at 18). GEICO also
contends that Hayas’ Motion is inappropriate due to Hayas’
failure to state with particularity what specific opinions

16

Hayas seeks to exclude and instead requests the Court to hold
that all of Atkinson’s opinions are inadmissible. (Id. at
19). Furthermore, GEICO states that under Rule 704, an expert
may “express an opinion that embraces an ultimate issue to be
decided by the trier of fact.” (Id.).
As it is unclear which of Atkinson’s opinions Hayas seeks
to exclude - and more so seeks to strike Atkinson as an expert
entirely - this Court denies Hayas’ Motion. However, the Court
reminds both parties that each will be required at trial to
properly qualify their expert(s), in accordance with the
standards set forth in the Federal Rules of Civil Procedure
and Evidence. Thereafter, even if properly qualified as an
expert at trial, this Court will not allow any expert to offer
impermissible legal conclusions, testimony of which he is not
qualified

to

opine,

redundant

testimony,

irrelevant

testimony, and testimony based on speculation as to the
parties’ intent. (See Doc. # 106).
IV.

GEICO’s Motions in Limine
GEICO seeks to preclude Hayas from introducing at trial:

(1) Improper questioning and/or testimony by counsel, (2) The
use

of

GEICO’s

claims

manuals

or

training

materials

as

evidence that GEICO breached its duty of good faith, (3)
Personal opinions about insurance companies, prior experience

17

with insurance companies generally and GEICO in particular,
references

to

advertising,

and

the

payment

of

insurance

premiums, (4) References to underlying defense counsel for
Hayas,

Todd

regarding

Miller,

the

as

proposed

representing
“Cunningham

GEICO,

(5)

Agreement”

or

Evidence
consent

judgment, and (6) Evidence or testimony regarding Ryan’s
Estate’s alleged basis for refusing to settle. (Doc. # 79).
The Court will address each of these issues in turn.
A.

Exclusion of Improper Questioning and/or Testimony
by Counsel

GEICO

argues

that

Hayas

should

be

precluded

from

“presenting evidence, testimony, or argument” and “improper
questioning and/or testimony by counsel.” (Doc. # 79 at 2).
Specifically,
question

GEICO

GEICO

asserts

adjusters

that

Hayas

regarding

“may

their

attempt

to

knowledge

or

understanding of bad faith law in Florida.” (Id.). “Hayas
will

improperly

characterize,

through

his

opening,

questioning of lay witnesses, and closing, the standard for
bad faith in Florida.” (Id.).
GEICO states that the “standard for bad faith in Florida
requires specialized knowledge from an attorney, and is not
within the knowledge of a lay witness.” (Id. at 11). The issue
in this case is whether GEICO acted in bad faith in handling

18

the

claim

against

Hayas

and

whether

a

“GEICO

adjuster

understands the legal concept of bad faith has no bearing on
how the claim was handled.” (Id.). GEICO avers that even if
this testimony is relevant, it is so “highly prejudicial that
it should be excluded.” (Id.). Additionally, GEICO argues
that “testimony and questioning regarding the standard of bad
faith in Florida is impermissible as it invades the purview
of the Court, which is tasked with instructing the jury on
the law.” (Id. at 11).
Hayas responds that “the law that will be applied to the
facts of this case will come from this Court, and both [Hayas]
and [GEICO] should be free to make argument at the appropriate
time about how the law as given by this Court applies to the
facts of this case.” (Doc. # 85 at 2). Furthermore, Hayas
contends

that

GEICO’s

request

is

overbroad

as

GEICO’S

employees “. . . may fairly give factual testimony with regard
to their training and experience, and the duties that they
believe that they had in the handling of this claim.” (Id. at
3).

Since

factors”

GEICO’s

necessary

duties
in

the

to

Hayas

are

presentation

“seminal
of

Hayas’

factual
claims

against GEICO, Hayas argues that he should not be precluded
from presenting such evidence at trial. (Id.). This Court
agrees.

19

It is permissible for Hayas to inquire of the GEICO
employees

regarding

training,

experience,

and

duties

in

accord with Rule 701, which governs lay witness testimony.
However, as stated above, this Court will not allow any
witness to offer impermissible legal conclusions, testimony
of which the person is not qualified to opine, whether lay or
expert,

redundant

testimony,

irrelevant

testimony,

and

testimony based on speculation as to the parties’ intent.
Therefore, GEICO’s Motion is denied.
B.

Exclusion
Materials

of

argues

that

GEICO

GEICO

Hayas

Claims

Manuals

should

be

or

Training

precluded

from

introducing GEICO’s “claims manual, code of conduct, and
training

materials”

into

evidence

and

should

also

be

precluded “from presenting any evidence of alleged breaches
of

internal

company

policies

and

procedures

by

GEICO

employees.” (Doc. # 79 at 3). GEICO asserts that such evidence
will be used by Hayas to “mislead the jury as to the issue to
be

decided

in

this

case

and

to

unduly

prejudice

GEICO.

Specifically, GEICO believes that [Hayas] will attempt to
improperly

equate

any

deviation

from

GEICO’s

corporate

policies or claims handling guidelines to a breach of the
duty of good faith.” (Id.). It is GEICO’s position that such

20

evidence is improper in that “whether GEICO followed its own
internal policies and procedures is not relevant to whether
GEICO fulfilled its duty of good faith” to Hayas. (Id.).
Specifically,

GEICO

highlights

that

evidence

or

testimony of alleged breaches of internal company policies
and procedures by GEICO employees is not evidence of bad
faith,

as

“GEICO

is

free

to

structure

its

own

company

guidelines in a manner which goes above and beyond what is
required by Florida law, such that non-compliance cannot be
evidence of bad faith.” (Id. at 13). In turn, GEICO argues
that,

by

allowing

presentation

of

evidence

of

GEICO’s

internal procedures, it would create a danger of unfair
prejudice to GEICO and “would invite the jury to find against
GEICO on impermissible grounds.” (Id.).
GEICO alleges that “the risk of unfair prejudice and
confusion is so great that same cannot be alleviated by a
proper jury instruction.” (Id.). Finally, GEICO sets forth
that GEICO’s claims manual, code of conduct, and training
materials contain confidential business information, which is
protected from disclosure pursuant to Section 90.506, Florida
Statutes.” (Id. at 15). To that end, GEICO notes that “the
parties in the instant action executed a confidentiality
agreement in regards to these documents during the discovery

21

phase of this litigation which specifically recognizes the
confidential nature of the documents and protects them from
disclosure to third parties.” (Id.). Therefore, according to
GEICO, Hayas should be precluded from presenting confidential
and proprietary information to the jury. (Id.).
Hayas argues that “portions of GEICO’s claims manual and
training materials are relevant to Hayas’ bad faith claim,
and should not be excluded under Rule 403, and fail the test
for

protection

of

trade

secrets.”

(Doc.

#

85

at

3).

Specifically, Hayas asserts that “evidence that an insurer
violated § 626.9541 may be used to support a claim of bad
faith even when the plaintiff has not brought a separate claim
for unfair claims settlement practices.” (Id. at 3-4). Hayas
notes that “GEICO has not shown that all portions of the
claims manual and training materials are clearly inadmissible
on all potential grounds.” (Id. at 4-5). Although Hayas agrees
that violations of the procedures are not determinative, the
violations may be used as “some evidence” of bad faith. (Id.
at 5). It is Hayas’ position that any risk of unfair prejudice
with regard to use of the claims manual or materials “can be
alleviated with appropriate jury instructions.” (Id.).
Upon consideration, the Court finds that the proper
inquiry

at

trial

will

be

whether

22

GEICO's

conduct

was

reasonable and proper under the circumstances. Altheim v.
GEICO

Gen.

1429735,

at

Ins.
*5

Co.,
(M.D.

No.
Fla.

8:10-CV-156-T-24TBM,
Apr.

14,

2011).

An

2011

WL

insurance

company's failure to have appropriate procedures in place, as
well as general business practices of improper conduct, may
be evidence of bad faith. Id. However, the Court cannot say
that failure to comply with company policies, manuals, and
training materials will always be evidence of bad faith, since
those materials may contain guidelines that go “above and
beyond”

what

is

reasonable

and

proper

under

the

circumstances, such that non-compliance may not be evidence
of bad faith. Id.
However,

if

the

company's

policies,

manuals,

and

training materials contain guidelines that are consistent
with industry standards, then non-compliance may be evidence
of

bad

faith.

Altheim,

No.

8:10-CV-156-T-24TBM,

2011

WL

1429735, at *5. Thus, this Court cannot say at this time that
all evidence of GEICO’s internal policies and procedures
should be excluded, and it is likely that any risk of unfair
prejudice and confusion can be alleviated with proper jury
instructions.

Accordingly,

the

Court

denies

the

Motion

without prejudice, and Defendant can make objections at trial
if and when the need arises. As the Court is denying this

23

motion and inviting GEICO to raise objections at trial, if
necessary, the Court also notes that Hayas should be prepared
to address GEICO’s “privilege argument and be ready to explain
why non-disclosure of these documents at trial will result in
injustice.” Id.
C.

Exclusion of Personal Opinions About
Experiences with Insurance Companies

and

Prior

GEICO seeks to preclude Hayas from “presenting evidence,
testimony,

or

argument

insurance

companies,

campaigns,

and

regarding

referring

offering

evidence,

personal

to

GEICO’s

testimony,

opinions

of

advertising
or

argument

regarding the payment or non-payment of insurance premiums.”
(Doc. # 79 at 4). GEICO asserts that Hayas will elicit
testimony

from

his

expert

regarding

their

previous

experiences with insurance companies and GEICO, which is
improper. (Id.).
Additionally, GEICO contends that references to GEICO’s
advertising campaigns are improper and “not relevant to the
issue of whether GEICO acted in bad faith in handling the
wrongful

death

claim

brought

by

Ryan’s

[Estate]

against

Hayas.” (Id. at 16). It is GEICO’s position that Hayas will
use GEICO’s name and brand recognition to unduly prejudice
the jury against it. (Id. at 17). GEICO further avers that

24

Hayas will attempt to proffer evidence that “Hayas faithfully
paid insurance premiums to GEICO in an effort to prejudice
the jury” even though “[n]o party to the present matter has
raised a claim or defense related to the payment or nonpayment of insurance premiums.” (Id.). The introduction of
such evidence would prejudice GEICO and confuse the jury as
to the “true issues” present in this case. (Id. at 18).
Hayas responds that GEICO’s request is overbroad and
should be denied. (Doc. # 85 at 9). Additionally, Hayas states
that testimony regarding payment of insurance premiums is
relevant and admissible when offered not to prejudice GEICO
but to show “a nexus between Hayas’ payment of the insurance
premiums and the duties and obligations then imparted unto
GEICO pursuant to the policy of insurance those premiums
maintained.” (Id. at 10). Hayas intends to use this evidence
to “properly reveal GEICO’s position and interest as the
insurance company, and the fiduciary duty manifested under
Florida law in exchange for the faithful payment of these
premiums and how Hayas was entitled to maintain trust in GEICO
that it would fulfill its fiduciary duties.” (Id. at 11).
This Court finds that expert witness testimony will be
relevant

to

this

case

and

GEICO

can

raise

any

specific

objection to testimony provided at trial. Furthermore, this

25

Court finds that GEICO’s advertising campaigns are irrelevant
to the issues before this Court and grants the Motion as to
advertising

campaigns.

Therefore,

neither

party

may

use

evidence of GEICO’s advertising campaigns at trial. The Court
also grants the Motion as to evidence of payment of insurance
premiums because it is irrelevant to the bad faith case.
D.

Exclusion of References to Underlying
Counsel for Hayas as Representing GEICO

GEICO

seeks

to

preclude

Hayas

from

Defense

presenting

any

evidence regarding attorney Todd Miller, or his firm, as
representing GEICO in the underlying tort action. (Doc. # 79
at 5). GEICO provides that “in the underlying action filed by
[Ryan’s

Estate]

against

Hayas,

Todd

Miller,

represented

Hayas” and there is no evidence to the contrary. (Id. at 6).
GEICO states that referring to Miller as GEICO’s attorney
“would mislead the jury and unduly prejudice GEICO,” and
therefore

it

should

be

prohibited.

(Id.).

“While

GEICO

provided Hayas with an attorney, at no time did Miller ever
serve as GEICO’s counsel in the underlying action. In fact,
GEICO, as Hayas’ liability insurer, was not a party to the
underlying action.” (Id. at 19).
Hayas states that he has no intention of misrepresenting
that Miller represented GEICO in the underlying claim. (Doc.

26

# 85 at 12). However, should Miller testify at trial, Hayas
requests this “Court preserve his right to inquire as to
[Miller’s] long-standing and current relationships with GEICO
in accordance with the Federal Rules of Civil Procedure, as
same may be fairly considered to evaluate bias.” (Id.).
In the instance that Hayas attempts to provide testimony
or

evidence

at

trial

which

contradicts

the

contractual

relationship between Miller and Hayas, GEICO should bring the
matter

to

the

Court’s

attention.

The

Court

declines

to

completely exclude testimony by Miller but remains cognizant
that this testimony may be subject to appropriate objection
by GEICO. At this juncture, the probative value of this
testimony outweighs any prejudice.
E.

Exclusion
of
Evidence
Regarding
Proposed
“Cunningham Agreements” or Consent Judgments

GEICO seeks to preclude any evidence, testimony, or
reference to “any consent judgment or ‘Cunningham Agreement’
proposed by Ryan’s Estate to Hayas or by Hayas to Ryan’s
Estate in the underlying action.” (Doc. # 79 at 6). GEICO
argues that Hayas will “attempt to infer, reference, or argue
that GEICO should have agreed to be a party to the proposed
‘Cunningham Agreement’ and/or should have authorized Hayas to
accept Ryan’s [Estate’s] proposed consent judgment, and that

27

any alleged failure to do so is evidence of bad faith.” (Id.
at 7). GEICO contends that testimony or argument regarding
such agreements would be inappropriate, “as it is irrelevant
to the central issue of whether GEICO acted in bad faith in
failing to settle the case within $100,000 policy limits.”
(Id.).
Furthermore, “any testimony or argument regarding the
proposed ‘Cunningham Agreement’ or consent judgment would
confuse and mislead the jury into believing that GEICO had a
duty to negotiate in excess of the policy limits, a duty to
enter into a ‘Cunningham Agreement’ and/or a duty to authorize
Hayas to enter into a $6,000,000.00 consent judgment.” (Id.
at 19). GEICO argues that “there is no duty requiring GEICO
to agree to be a party to a ‘Cunningham Agreement’, to
authorize an insured to enter into a consent judgment, to
forfeit its own rights, and to expose itself to amounts above
the policy limits.” (Id. at 20). Thus, according to GEICO,
presenting such testimony would impose duties and obligations
upon GEICO that do not exist as a matter of law and would
mislead the jury into thinking otherwise. (Id.).
Hayas

argues

that

“by

agreeing

to

the

proposed

settlement opportunity approved by all other entities in the
underlying claim, GEICO could have protected [Hayas] from a

28

judgment in excess of policy limits regardless of the outcome
of the bad faith case against GEICO.” (Doc. # 85 at 12).
Furthermore, Hayas asserts that “had [GEICO] accepted the
opportunity presented . . . GEICO would still have ended up
defending its claim handling, but win or lose, [Hayas] would
have been protected.” (Id.).
The Court agrees with GEICO and the various cases cited
for

their

proposition

that

evidence

or

testimony

about

proposed “Cunningham Agreements” or consent judgments are
excludable. See, e.g., Keifer v. Gov't Emps. Ins. Co., No.
01–15545, 2002 WL 34924509 (11th Cir. 2002). Since Hayas has
not cited any Florida precedent that suggests that an insurer
must enter into such an agreement to avoid claims of bad
faith, this Court grants GEICO’s Motion as to this issue.
F.

Exclusion of Testimony Regarding Ryan’s Estate’s
Basis for Refusing to Settle

GEICO seeks exclusion of evidence, testimony, argument
or reference to “alleged statements made by GEICO personnel
regarding William Ryan allegedly having drugs in his system
as the basis for Ryan’s [Estate’s] refusal to negotiate a
settlement with GEICO.” (Doc. # 79 at 7). GEICO asserts that
Hayas will attempt to introduce evidence of an alleged October
13, 2009, conversation between a representative from State

29

Farm and a paralegal from the office of Ryan’s Estate’s
counsel in which the representative stated that “William Ryan
was taking some sort of medication that may have been a factor
[in the accident].” (Id. at 8). During the deposition of Vicki
Ryan, she testified that “the reason she was unwilling to
attempt to negotiate a settlement of the Ryan wrongful death
claim against Hayas was because she was upset with GEICO when
she

was

advised

of

the

foregoing

alleged

conversation”

outlined above. (Id.)(Vicki Ryan Dep. at 25-27). It is GEICO’s
position that eliciting such testimony or presenting such
evidence would be inappropriate as it is irrelevant to the
central issue of whether GEICO acted in bad faith in failing
to settle the case within the $100,000.00 policy limit. (Id.
at 8).
In support, GEICO states that it is the jury that must
decide “whether GEICO fulfilled its duty of good faith based
solely upon Florida law and not whether or not GEICO made the
alleged statement to a representative of State Farm or whether
Vicki Ryan considered such an alleged statement in refusing
to negotiate a settlement of the Ryan wrongful death against
Hayas.” (Id. at 22). Here, GEICO urges this Court not to allow
Hayas

to

present

evidence

which

“could

be

viewed

as

‘besmirching the memory’ of Mr. Ryan in suggesting that he

30

may have taken medication which contributed to the accident
at issue.” (Id. at 23).
Hayas responds that the evidence “GEICO is attempting to
eliminate from this trial explains Ryan’s [Estate’s] decision
making and motives.” (Doc. # 85 at 14). Hayas argues GEICO
will put forth evidence that Ryan’s Estate’s conduct was
“unreasonable” and “motivated by pecuniary gain.” (Id.). It
is Hayas’ position that “the statement GEICO is attempting to
exclude should be weighed by the jury as it considers the
totality

of

the

circumstances

in

this

matter.”

(Id.).

Therefore, according to Hayas, the probative value of what
GEICO seeks to exclude is high and the danger of unfair
prejudice to GEICO is negligible. (Id.). This Court agrees.
Ryan’s Estate’s decision making motivations goes directly to
its willingness or unwillingness to settle this claim. The
Court

thus

finds

that

evidence

of

the

basis

for

Ryan’s

Estate’s refusal to settle to be relevant under Rule 401 and
further finds that the probative value of this evidence is
not substantially outweighed by the concerns enumerated in
Rule 403. For the foregoing reasons, this Motion is denied.
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Kenneth E. Hayas’ Motion in Limine (Doc. # 80)
is DENIED.

31

(2)

Defendant GEICO General Insurance Company’s Motions in
Limine (Doc. # 84) are GRANTED in part and DENIED in
part as detailed herein.
DONE and ORDERED in Chambers in Tampa, Florida, this 3rd

day of November, 2014.

Copies: All Counsel of Record

32