THOMPSON v. CINCINNATI INSURANCE COMPANY

Filing 105

ORDER denied w/o prejudice 97 Motion in Limine. Signed by JUDGE RICHARD SMOAK on 5/10/2011. (sea)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
WINNIE THOMPSON,
Plaintiff,
vs.

CASE NO. 3:10-cv-318/RS-EMT

CINCINNATI INS. CO.,
a foreign corporation,
Defendant.
_________________________________________/
ORDER
Before me is Plaintiff’s Motion in Limine (Doc. 97) and Defendant’s Response in
Opposition (Doc. 103).
The touchstone of admissibility is relevance, “having the tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.
Although relevant, evidence may be excluded in situations where “the probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Fed. R. Evid. 403.
Here, Plaintiff seeks to exclude the admission of testimony or evidence relating to
(1) Katie Chavers’ behavior/duties; (2) Katie Chavers’ contacts with her attorney Bob
Kerrigan; and (3) Katie Chavers’ and Dave DeMara’s communications with the Chavers’
insurance carrier.

When an insurer is handling claims against its insured, it “has a duty to use the
same degree of care and diligence as a person of ordinary care and prudence should
exercise in the management of his own business.” Perera v. United States Fid. & Guar.
Co., 35 So. 3d 893, 898 (Fla. 2010) (citations and quotations omitted). Under Florida
law, an insurer’s conduct in bad faith claims is judged by the “totality of the
circumstances.” Snowden v. Lumbermens Mut. Cas. Co., 358 F. Supp. 2d 1125, 1127
(N.D. Fla. 2003). This broad standard makes numerous issues relevant to the trier of
fact’s determination of an insurer’s reasonableness.
Ms. Chavers, the representative of the decedent, is of critical importance to this
case. While Ms. Chavers’ actions are not the focus of an insurance bad faith case, her
actions are nonetheless relevant to the behavior of Defendant in attempting to settle the
claim. Inquiries into a claimant’s prior conduct and motives are not per se irrelevant and
prejudicial. Rather, because the insurer has the burden to show that there was no realistic
possibility of settlement within the policy limits, within the context of the “totality of the
circumstances” test, the conduct of a claimant and her attorney may be relevant and
admissible. Barry v. Geico Gen. Ins. Co., 938 So. 2d 613, 618 (Fla. 4th DCA 2006).
See also Cardenas v. Geico Cas. Co., 2011 U.S. Dist. LEXIS 3475 (M.D. Fla. 2011)
(citing id.) (“Although a bad faith claim derives from and emphasizes the duty of the
insurer to the insured, the conduct of a claimant and the claimant's attorney is relevant to
determining the realistic possibility of settlement.); Mendez v. Unitrin Direct Prop. &
Cas. Ins. Co., 2007 U.S. Dist. LEXIS 98925 (M.D. Fla. 2007).

Likewise, Ms. Chavers’ actions and the actions of Defendant’s agent Mr. DeMara
towards Ms. Chavers’ insurance company are relevant. At a minimum, they speak
towards Ms. Chavers’ ability to conduct discussions with an insurance company during
this difficult time. This is not unfairly prejudicial.
Plaintiff’s Motion (Doc. 97) is DENIED without prejudice. Objections to
specific testimony or evidence not addressed in this Order may be raised at trial. In
addition, the objections above may be renewed at trial as the facts permit.

ORDERED on May 10, 2011.

/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE