Lopez et al v. Allstate Fire & Casualty Insurance Company
Filing
96
ORDER granting in part and denying in part 49 Motion to Limit Testimony of Expert Witness Donald Dinsmore. Signed by Judge Marcia G. Cooke on 10/26/2015. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-20654-Civ-COOKE/TORRES
FRANK LOPEZ, as personal
representative of the Estate of
Giraldo Lopez, and MAGALY
NUNEZ-DELGADO, individually
and as assignee of Michelle Soto,
Plaintiffs,
v.
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.
__________________________________/
ORDER ON DEFENDANT’S MOTION TO LIMIT TESTIMONY
OF EXPERT WITNESS DONALD DINSMORE
Plaintiffs bring this third-party insurance bad faith action against Defendant Allstate
Fire and Casualty Insurance Company (“Allstate”) for its allegedly unreasonable failure to
settle claims made against Allstate’s insured, Michelle Soto, resulting in an excess judgment
against its insured. Before me now is Allstate Fire and Casualty Insurance Company’s
Motion to Limit Testimony of Expert Witness Donald Dinsmore (ECF No. 49), to which
Plaintiffs have responded (ECF No. 52). I have reviewed the motion, response, the record,
and the relevant legal authorities. For the reasons that follow, Defendant’s motion is
granted in part and denied in part.
I.
BACKGROUND
The background facts relating to the allegations raised in Plaintiffs’ Amended
Complaint are detailed in my Order on Plaintiffs’ Daubert Motion to Exclude the Testimony
of D. James Kadyk. (See ECF No. 82). Defendant seeks to limit the testimony of Plaintiffs’
expert witness, Donald Dinsmore. Plaintiffs proffered Mr. Dinsmore as an expert witness in
the area of insurance claims handling. Mr. Dinsmore has worked in the insurance industry
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in various capacities for over 24 years and has 16 years of insurance litigation experience.
(ECF No. 49-1 at 2 of 42). He has worked, inter alia, as a field claims representative, claims
specialist, special disaster supervisor, agent, independent adjuster, and general adjuster for
insurance companies such as State Farm Group, Prudential of America Group, The
Lumbermens Mutual Insurance Co., and United Services Automobile Association. (Id. at
21 of 42). Mr. Dinsmore then obtained a law degree before spending the next decade and a
half doing consulting work for insurance companies.
Mr. Dinsmore opines as to whether Defendant met industry standards in its claims
handling; as to the type of policy at issue; and as to whether Allstate’s insurance adjusters
and claims managers met their duties to investigate, evaluate, communicate, and settle
within policy limits when doing so is possible and is in their insured’s interest. Mr.
Dinsmore specifically opines that Allstate should have tendered the full policy limits – both
the bodily injury limits and the personal injury protection (“PIP”) limits – in order to protect
its insured from an excess judgment.
Defendant seeks to preclude Mr. Dinsmore from testifying specifically regarding
Plaintiffs’ claims for PIP benefits and Allstate’s handling of those claims. Defendant argues
that Mr. Dinsmore is not qualified to testify competently regarding Allstate’s handling of
Plaintiffs’ PIP claims, that Mr. Dinsmore’s opinions regarding Allstate’s handling of
Plaintiffs’ PIP claims are unreliable, and that Mr. Dinsmore’s testimony regarding Allstate’s
handling of Plaintiff’s PIP claims will not assist the trier of fact.
II.
LEGAL STANDARDS
Rule 702 of the Federal Rules of Evidence provides:
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.
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A district court has the responsibility of acting as a gatekeeper to exclude unreliable
expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This
gatekeeping function applies to “all expert testimony,” whether based on “scientific
knowledge” or “based on technical and other specialized knowledge.” Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 141 (1999). In order to determine the admissibility of expert
testimony, a district court must consider whether: (1) the expert is qualified to testify
competently as to the subject matter he intends to address; (2) the method employed by the
expert is sufficiently reliable; and (3) the testimony assists the trier of fact to comprehend the
evidence through the application of the witness’s expertise. Quiet Tech. DC-8, Inc. v. HurelDubois U.K. Ltd., 326 F.3d 1333, 1340-41 (11th Cir. 2003). The party seeking to introduce
expert testimony bears the burden of satisfying these criteria by a preponderance of the
evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
In performing its gatekeeping function under Daubert, the district court’s role is not
“to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet
Tech., 326 F.3d at 1341. “Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Id. (quoting Daubert, 509 U.S. at 596).
III.
A.
ANALYSIS
Mr. Dinsmore’s is Qualified to Opine About Plaintiff’s PIP Claims and
Allstate’s Handling Thereof.
Allstate argues that Mr. Dinsmore should not be permitted to opine on Allstate’s
handling of Plaintiffs’ PIP claims because, while he is experienced in the insurance claims
handling industry generally, he has limited experience handling Florida PIP claims
specifically and is not knowledgeable regarding the applicable standards for handling
Florida PIP claims. I disagree. Mr. Dinsmore is qualified to opine on Allstate’s handling of
Plaintiffs’ claims against Allstate’s insured by including PIP benefits in its settlement offers.
A witness may be qualified as an expert by scientific training, education, or
experience in a pertinent field or occupation. United States v. Frazier, 387 F.3d 1244, 1261
(11th Cir. 2004). Here, Mr. Dinsmore is qualified to provide expert opinions on insurance
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industry standards and practices by his more than 40 years of professional experience within
the insurance industry. Mr. Dinsmore has been employed as an insurance adjustor, agent,
supervisor and consultant for numerous nationally prominent insurance companies. (ECF
49-1 at 21). He has handled claims arising from all types of insurance policies, including
bodily injury claims arising under automobile policies and catastrophic claims. (ECF No.
49-2 at 29:3-8, 30:2-7, 30:20-23, 31:2-7). Mr. Dinsmore also handled PIP claims in Florida,
though only on severe claims, and on a limited basis (less than 100). (Id. at 105:3 – 106:6).
At various times, Mr. Dinsmore has been licensed as an insurance adjustor in five states,
including Florida, and has held numerous licenses for the State of Florida (General Lines,
All-Lines, and Insurance Agent). (Id. at 23:12 - 24:6). Mr. Dinsmore holds an Associate in
Claims (“AIC”) designation from the Insurance Institute of America (“IIA”) as well as
designations as a Casualty Claims Law Associate (“CCLA”) and Property Claim Law
Associate (“PCLA”). (Id. at 25:1-24). Mr. Dinsmore, a licensed lawyer, has also taught
courses in insurance and bad faith, and has published articles in these areas. (Id. at 26:12 27:16; ECF No. 49-1 at 22, 40). I find this experience to be more than adequate to qualify
Mr. Dinsmore as an expert in insurance industry claims handling standards.
Defendant nevertheless argues that Mr. Dinsmore’s experience in handling PIP
claims specifically is insufficient to qualify him to opine on Allstate’s handling of Plaintiffs’
PIP claims in this case. I disagree. Mr. Dinsmore’s opinion is that Allstate should have,
under the circumstances presented, included the available PIP benefits in its settlement
offers so as to protect its insured from an excess judgment. Mr. Dinsmore does not opine on
whether Plaintiffs complied with all the requirements under Florida PIP law for obtaining
PIP benefits. In other words, Mr. Dinsmore’s expert opinion is that Allstate should have
handled Plaintiffs’ claims as a global settlement opportunity, rather than treat the bodily
injury claim in a manner entirely divorced from the PIP claims, under the circumstances of
which Allstate was aware. I find that Mr. Dinsmore’s experience with adjusting severe
claims involving PIP benefits is adequate to admit his expert opinions. Defendant can
address any deficiencies it perceives in Mr. Dinsmore’s experience through crossexamination and the presentation of contrary evidence.
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B.
Mr. Dinsmore’s Opinions Regarding AllState’s Handling of PIP Claims
are Reliable.
Allstate argues that Mr. Dinsmore’s opinions regarding Allstate’s handling of PIP
claims in this case are unreliable because Mr. Dinsmore lacks experience and knowledge
regarding PIP claims in Florida, and because Mr. Dinsmore fails to consider components of
Florida’s PIP statute. More specifically, Allstate argues that Mr. Dinsmore’s “testimony
infers that PIP claims are governed by the same standards as bodily injury liability claims.”
(ECF No. 49 at 7). I disagree.
When an expert depends on his experience and education to opine on a matter, he
must explain how that experience led to his conclusions, why that experience was a
sufficient basis for the opinions, and how that experience was reliably applied to the facts of
the case. Frazier, 387 F.3d at 1265. Rather than attack Mr. Dinsmore’s methodology head
on, Allstate’s argument relies on misconstruing Plaintiffs’ legal theory and Mr. Dinsmore’s
expert opinions. Mr. Dinsmore is not opining on whether Plaintiffs or Defendant complied
with Florida PIP statutes, but rather, on whether, under the circumstances known or
capable of being known, Allstate met its duty of good faith to its insured when it treated
Plaintiffs’ demand for the full $65,000 available policy limits as two separate claims for
bodily injury limits and PIP limits, and required Plaintiffs to submit certain PIP-related
paperwork, rather than considering the opportunity for a global settlement. Mr. Dinsmore’s
methodology for opining on this subject matter is sufficiently reliable. He identifies industry
standards for claims handling based on his extensive experience working within the
insurance industry, as detailed above, and based on his review of applicable laws,
regulations, publications, and manuals, and applies those standards to the case at bar after
reviewing the claims file.
C.
Mr. Dinsmore’s Opinions will Largely Assist the Jury.
Finally, Allstate argues that Mr. Dinsmore’s opinions regarding personal injury
protection will not assist the jury because Ms. Nunez-Delgado’s claim for PIP benefits was a
first-party claim against Allstate pursuant to the insurance policy, whereas the instant case is
for common law bad faith against Allstate arising out of Allstate’s handling of the bodily
injury liability claims against Allstate’s insured, Ms. Soto. In other words, Allstate argues
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that its “handling of the PIP claims has no bearing on the handling of the bodily injury
liability claims and, therefore, is not part of the totality of the circumstances” the jury will
consider in determining whether Allstate acted in bad faith. (ECF No. 49 at 13).
Defendant’s argument was the same argument it made when it moved for summary
judgment in this case. (ECF No. 57). For the same reasons set forth in my Order on
Defendant’s Motion for Summary Judgment (ECF No. 72), I find Allstate’s argument
unpersuasive. See Geico Cas. Co. v. Beauford, No. 8:05-cv-697-T-24EAJ, 2007 WL 2412974, at
*2 (M.D. Fla. Aug. 21, 2007) (“Florida case law states that an insurer has the discretion to
reasonably determine how to best limit the insured’s liability, and that whether the insurer
could have minimized the insured’s exposure to excess judgment through wiser settlement
practices (such as a global settlement conference) is a question for the jury.”). Defendant’s
citation to Altheim v. GEICO Gen. Ins. Co., No 8:10-CV-156-T-24 TBM, 2011 WL 1429735
(M.D. Fla. Apr. 14, 2011) is unavailing. In Altheim, the Court held that an insurer’s
payment of PIP benefits could not be used as evidence that the insurer should have also paid
the plaintiff’s uninsured/underinsured motorist (“UM”) claim. Id. at 7. The facts of Altheim
are simply inapposite to this case. The plaintiff in that case sought to settle her UM claim
with her insured for the per person policy limits. Id. at *1. There is no indication in that case
that the insured sought to settle for an amount that included different types of insurance
benefits, or that she faced the prospect of an excess judgment against her. As such, I simply
do not find Altheim to be persuasive.
I do, however, agree with Defendant that some of Mr. Dinsmore’s proffered
opinions are not helpful to the jury because the jury is capable of discerning those facts for
themselves. See Frazier, 387 F.3d at 1262 (“[E]xpert testimony is admissible if it concerns
matters that are beyond the understanding of the average lay person.”). Those opinions are
as follows: (1) “Of the various Allstate claims persons, Muniz was the most empathetic to
Soto”; (2) “[Plaintiff’s attorney Joseph Kalbac’s] deposition shows him to be both zealous
and passionate on behalf of his clients”; (3) “Listening to [Ms. Soto’s] recorded statement
reveals just basic facts with little emotion. This reporter was not able to tell if she
experienced the emotions others experience in this situation, including guilt, fear, and
anxiety”; (4) opinions regarding factors that made Mr. Kalbac “mad,” vexed, or upset; and
(5) “The Allstate form letters used in this case were impersonal . . . .” (ECF No. 49-1).
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These opinions do not rely on Mr. Dinsmore’s expertise and are among the factual
determinations that the jury is capable of making without an expert’s assistance. Moreover,
to the extent that Mr. Dinsmore seeks to opine on the standard for bad faith in Florida,
those opinions are excluded because the Court alone is tasked with instructing the jury as to
the applicable law. See Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.
1990) (“A witness may not testify to the legal implication of conduct; the court must be the
jury’s only source of law.”).
IV.
CONCLUSION
For the reasons set forth herein, Defendant’s Motion is GRANTED IN PART and
DENIED IN PART. Mr. Dinsmore’s expert opinions are admissible, except to the extent
that he opines on the applicable law in this case, or his perceptions about empathy,
zealousness, passion, emotion, antagonism, vexatiousness, and familiarity of the parties and
their actions.
2015.
DONE and ORDERED in chambers, at Miami, Florida, this 26th day of October
Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record
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