WHITESIDE v. GEICO INDEMNITY COMPANY

Filing 81

ORDER ruling on pending motions in limine 54 , 57 & 76 ; denying Motion to Strike 79 ; ruling on deposition designation objections; setting deadline for supplemental briefing on certain deposition designations; setting deadline for revised proposed jury instructions/verdict forms. Ordered by US DISTRICT JUDGE CLAY D LAND on 03/29/2018. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
FIFE M. WHITESIDE, Trustee in
Bankruptcy,

*
*

Plaintiff,
*
vs.

CASE NO. 4:16-CV-313 (CDL)
*

GEICO INDEMNITY COMPANY,
*
Defendant.
*
O R D E R
This

Order

addresses

unfinished

business

from

the

final

pretrial conference now that the Court has received additional
briefing from the parties.

The Court explains the causation and

damages principles to be applied in this atypical failure to
settle/excess liability case.
Court

decides

the

parties’

Applying these principles, the

motions

in

limine

that

were

not

decided at the pretrial conference.
I.

Background
GEICO rejected a time-limited offer to settle a liability

claim

within

its

insured’s

policy

limits.

coverage existed under the GEICO policy.

At

that

time,

After the time-limited

demand expired without acceptance, the injured person filed an
action against the driver of the vehicle, who for purposes of
the present discussion would have been a covered insured under
the GEICO policy when the lawsuit was filed.

The defendant in

that action allowed the case to go into default, and a default
judgment was entered against her in the amount of $2,916,204.00.
GEICO unsuccessfully sought to have that judgment set aside both
by

the

trial

court

and

the

Georgia

Court

of

Appeals.

The

injured plaintiff subsequently filed an involuntary bankruptcy
petition against the defendant, and the bankruptcy trustee filed
this action against GEICO to recover for bad faith or negligent
failure to settle the underlying personal injury claim.

GEICO

claims that it has no liability for such a claim because it had
no opportunity to defend the underlying action before it went
into

default

and

because

the

actions

of

its

insured

(the

defendant in the underlying action) in allowing the matter to go
into default were the sole proximate cause of any damages she
suffered.

The Court previously denied summary judgment on these

issues, and the case is scheduled for a jury trial.
II.

Causation and Damages
In general, a liability insurer who fails to settle a claim

against its insured within the insured’s policy limits is liable
to the insured for any damages to which the insured is exposed
in excess of those limits, if a reasonably prudent insurer would
have

settled

the

claim

under

similar

circumstances.

E.g.,

Cotton States Mut. Ins. Co. v. Brightman, 580 S.E.2d 519, 521
(Ga. 2003); see Delancy v. St. Paul Fire & Marine Ins. Co., 947
F.2d 1536, 1546-47 (11th Cir. 1991) (explaining Georgia law on

2

this issue).

Thus, the measure of damages is typically the

amount that the final judgment exceeds the insured’s liability
policy

limits.

See,

e.g.,

Brightman,

580

S.E.2d

at

521-22

(affirming jury verdict in the amount of the excess judgment);
McCall v. Allstate Ins. Co., 310 S.E.2d 513, 514–15 (Ga. 1984)
(“Hence, where a person injured by the insured offers to settle
for a sum within the policy limits, and the insurer refuses the
offer of settlement, the insurer may be liable to the insured to
pay the verdict rendered against the insured even though the
verdict exceeds the policy limit of liability.”).

The tort is

the insurance company’s bad faith failure to settle the claim,
which then exposes its insured to an uncovered liability.

GEICO

pointed the Court to no statutory provision or Georgia case
supporting its contention that a jury in a bad faith failure to
settle case may revisit the excess judgment from the underlying
case.1

And the Court is unaware of any principle whereby a jury

in this action could reconsider the reasonableness of the amount
of

the

verdict/default

judgment

in

the

underlying

case,

a

judgment which is final and binding on the person against whom
1

GEICO relies on a number of non-Georgia uninsured motorist insurance
coverage cases addressing the circumstances under which a default
judgment against the uninsured motorist is conclusive of the insured’s
damages and binding on the UM carrier in terms of the amount it must
pay under its contract with its insured.
See, e.g., Burge v. MidContinent Cas. Co., 933 P.2d 210 (N.M. 1996); Champion Ins. Co. v.
Denney, 555 So. 2d 137 (Ala. 1989).
These cases do not address the
issue in this case: whether a jury in a bad faith or negligent failure
to settle tort case may revisit the amount of the excess judgment in
the underlying case.

3

it was rendered and who was a GEICO insured when GEICO had an
opportunity to resolve the claim within the policy limits.
Based on the foregoing, the starting point in this case is:
if a jury finds that GEICO breached its duty to its insured when
it failed to settle the claim within the policy limits, GEICO is
potentially liable for the amount of the excess judgment if
GEICO’s failure to settle the case was the proximate cause of
the excess verdict.

GEICO’s liability can be reduced if the

jury determines that the insured, in allowing the underlying
action to go into default, was “to some degree responsible for
the injury or damages claimed.”

O.C.G.A. § 51-12-33(a).

To be clear about what the jury will have to decide in this
case,

the

Court

a

refresher

to

principles

finds

helpful.

Although

be

on

certain

GEICO

fundamental

contests

that

it

breached any duty, the Court assumes for purposes of this Order
that a jury will find that GEICO breached its duty when it
failed to settle the underlying claim within the policy limits.
The

next

issue

for

the

jury

to

decide

is

causation.

That

analysis begins with the concept of “cause in fact,” or “but-for
causation.”
the

event

This concept simply means that without the breach
would

not

have

occurred.

Cause,

but-for

cause,

Black’s Law Dictionary (10th ed. 2014); see, e.g., Am. Ass’n of
Cab Cos., Inc. v. Parham, 661 S.E.2d 161, 167 (Ga. Ct. App.

4

2008) (explaining the difference between “but-for causation” and
proximate cause).
Thus, for GEICO’s failure to settle the claim within the
policy limits to be the “but-for cause” of the default judgment,
the

jury

must

find

that

without

the

failure

default judgment would not have occurred.

to

settle,

the

It is clear that if

GEICO had settled the case within the policy limits when it had
the opportunity to do so, there would have been no lawsuit filed
and no default judgment.

So, the failure to settle was a “but-

for” cause of the default judgment.
The presence of “but-for” causation, standing alone, does
not mean that GEICO is legally responsible for its insured’s
injury and damages.

To be legally responsible, i.e., liable,

GEICO’s breach must also be the proximate cause, or legal cause,
of the default judgment.
confusion in the law.

This concept has created unnecessary

As one noted treatise explains:

“Proximate cause” — in itself an unfortunate term — is
merely the limitation which the courts have placed
upon the actor’s responsibility for the consequences
of the actor’s conduct. In a philosophical sense, the
consequences of an act go forward to eternity, and the
causes of an event go back to the dawn of human
events, and beyond. But any attempt to impose
responsibility upon such a basis would result in
infinite liability for all wrongful acts, and would
set society on edge and fill the courts with endless
litigation.
As
a
practical
matter,
legal
responsibility must be limited to those causes which
are so closely connected with the result and of such
significance that the law is justified in imposing
liability. Some boundary must be set to liability for

5

the consequences of any act, upon the basis of some
social idea of justice or policy.
Cause, proximate cause, Black’s Law Dictionary (10th ed. 2014)
(internal

quotation

marks

and

citations

omitted)

(quoting

W.

Page Keeton, et al., Prosser & Keeton on Torts § 41, at 264 (5th
ed. 1984)).
Georgia courts have explained that proximate cause means “a
legally attributable causal connection between the defendant’s
conduct and the alleged injury.”

Mayor & Aldermen of Savannah

v. Herrera, 808 S.E.2d 416, 423 (Ga. Ct. 2017) (quoting Riggins
v. City of St. Marys, 589 S.E.2d 691, 694 (Ga. Ct. App. 2003)).
And, the Council of Superior Court Judges of Georgia suggests
the following definition in its pattern jury instructions:
Proximate cause means that cause which, in a natural
and continuous sequence, produces an event, and
without which cause such event would not have
occurred.
In order to be a proximate cause, the act
or omission complained of must be such that a person
using ordinary care would have foreseen that the
event, or some similar event, might reasonably result
therefrom.
Georgia Suggested Pattern Jury Instructions - Civil 60.200.
Consistent

with

the

definition

of

proximate

cause

under

Georgia law and Professor Keeton’s observations, this Court has
previously charged a jury on causation as follows:
Proximate cause is that which, in the natural and
continuous
sequence,
unbroken
by
other
causes,
produces an event and without which the event would
not have occurred.
Proximate cause is that which is
nearest
in
order
of
responsible
causes,
as
distinguished from remote; it is that which stands
6

last in causation, not necessarily in time or place,
but in causal relation. The mere fact that one event
chronologically follows another is alone insufficient
to establish a causal connection between them.
The
proof offered by the Plaintiff must establish a
connection between the act or acts of negligence
charged and the injury alleged before the Plaintiff
can be permitted to recover damages.
GEICO argues that its insured’s failure to respond to the
lawsuit

against

her

and

her

failure

to

inform

GEICO

of

the

lawsuit caused the action to go into default and resulted in the
default

judgment.

Thus,

GEICO

maintains

that

the

insured’s

negligence and failure to comply with the conditions of its
policy were the proximate cause of the default judgment, not
GEICO’s refusal to accept the policy limits demand.

GEICO also

maintains that the insured’s conduct was the superseding cause
of the default judgment.
intervening
override

act

the

responsible,
liability.”

. . .

cause

that

for

thereby

Superseding cause simply means “[a]n
the

which

law
the

exonerating

considers
original
that

sufficient
tortfeasor

tortfeasor

to
was

from

Cause, superseding cause, Black’s Law Dictionary;

see also, e.g., Westbrook v. Atlanta Gas Light Co., 795 S.E.2d
320, 324 (Ga. Ct. App. 2016) (“[T]he general rule is that if,
subsequently

to

an

original

wrongful

act,

a

new

cause

has

intervened, of itself sufficient to stand as the cause of the
misfortune, the former must be considered as too remote[.]”)
(quoting Ontario Sewing Mach. Co. v. Smith, 572 S.E.2d 533, 536
(Ga. 2002))).
7

In denying GEICO’s motion for summary judgment, the Court
found that a genuine factual dispute exists on the issue of
causation.

If

the

negligently

allowed

jury

concludes

that

GEICO’s

insured

the lawsuit to go into default, then it

would be authorized, but not required, to find that

GEICO’s

breach was not the proximate cause of the default judgment or
that her negligence was the superseding cause of the default
judgment.

This

finding

would

verdict in favor of GEICO.

require

the

jury

to

return

a

If the jury finds, however, that the

insured was not negligent or that her negligence was not the
proximate or a superseding cause of the default judgment, then
GEICO would potentially be liable for her entire injury, the
full amount of the default judgment.

But if the jury finds that

the

negligent,

insured

was

contributorily

the

Georgia

apportionment statute, O.C.G.A. § 51-12-33, would apply, and the
recoverable damages would be the amount of the default judgment
less the insured’s degree of fault in allowing the underlying
action to go into default.

If the jury finds that the insured

is more than 50% at fault, Plaintiff can recover nothing on
behalf of the insured’s bankruptcy estate.
The Court intends to submit special interrogatories to the
jury on these issues.

The parties shall submit revised proposed

jury instructions and proposed verdict forms by May 18, 2018.

8

III. Motions in Limine
With

these

principles

in

mind,

the

Court

addresses

the

remaining motions in limine that were not decided orally at the
pretrial conference.
A.

GEICO’s Motion in Limine #1: The Default Judgment (ECF
No. 54)

GEICO seeks to exclude evidence of (1) the amount of the
default judgment and (2) the superior court judge’s findings of
fact regarding the amount of the default judgment.
1.

The Amount of the Default Judgment

GEICO argues that the amount of the default judgment is not
relevant
briefing,
sought

to

on

the

which

issue
relies

recover

of

damages

mainly

under

an

on

in

this

cases

insurance

case.

where

contract,

the

GEICO’s
plaintiff

reveals

that

GEICO is still under the impression that this action is a breach
of contract coverage case.

As discussed above and as the Court

previously explained, it is not; it is a negligent or bad faith
failure to settle tort case.

Whiteside v. GEICO Indem. Co., No.

4:16-CV-313 (CDL), 2017 WL 6347174 (M.D. Ga. Dec. 12, 2017).
And, as explained in § II, the amount of the default judgment is
certainly relevant on the issue of Plaintiff’s damages.

GEICO

nonetheless presses the point.
GEICO continues to argue, as it did in its summary judgment
briefing, that O.C.G.A. § 33-7-15 is dispositive of this entire
action because the insured failed to notify GEICO of the injured
9

plaintiff’s lawsuit against her before the default judgment was
entered.

The

Court

rejected

rejects that argument now.
Georgia

car

insurance

that

argument

before,

and

it

All the statute says is that a

policy

shall

not

be

issued

unless

it

“specifically requires the insured to send his insurer, as soon
as

practicable

after

the

receipt

thereof,

a

copy

of

every

summons or other process relating to the coverage under the
policy and to cooperate otherwise with the insurer in connection
with the defense of any action or threatened action covered
under the policy.”

O.C.G.A. § 33-7-15(a).

The statute further

states that if the insured does not comply with that provision
and if that noncompliance is prejudicial to the insurer, then
the

insurer

insureds

is

under

relieved
the

policy

of

“its

and

of

obligation
any

to

liability

defend
to

pay

its
any

judgment or other sum on behalf of its insureds,” unless a third
party sends the documents to the insurer at least thirty days
before a judgment is entered against the insured.

Id. § 33-7-

15(b)-(c) (emphasis added).
GEICO asserts that the phrase “relieve the insurer of . . .
any liability to pay any judgment or other sum on behalf of its
insured” should be interpreted to relieve the insurer not just
of its obligations under the contract but also to relieve the
insurer of any liability in tort.

But under the plain language

of the statute, an insured’s breach of the policy only relieves

10

the insurer of its obligations under the policy, including any
obligation to pay money on behalf of an insured.

The statute

simply does not address the damages issue in this tort case.
GEICO

contends,

however,

that

two

Georgia

cases

suggest

that O.C.G.A. § 33-7-15 should be interpreted to address damages
in this tort case.

First, GEICO relies on a Dekalb County

Superior Court case, Atlanta Casualty Co. v. Maestas, No. 999388-2, 2001 WL 35834883 (Dekalb Cty. Super. Ct. Jan. 22, 2001).
GEICO asserts that Atlanta Casualty was a negligent failure to
settle tort case, but it was not.
concluded

that

the

insurance

Rather, the superior court

company

had

no

duty

under

the

insurance policy to defend or indemnify the insured because the
insured did not provide the insurance company with notice of the
lawsuit against her as required by the policy.

GEICO latches on

to one snippet of dicta where the superior court judge, without
any discussion, stated that if the insured was trying to recover
for negligent failure to settle, that claim was also barred
because she did not comply with her contractual obligations,
“relieving [the insurance company] of any obligation under the
policy.”

Id. at 3 (emphasis added).

Significantly though, the

judge noted that there was no evidence the insurance company
ever received an offer from the injured person to settle within
policy limits, so it appears that the judge found that there was
no bad faith or negligent failure to settle the tort claim at

11

all.2

Thus, he could not have reached a holding on whether

O.C.G.A. § 33-7-15(b) applies in such cases.
the

superior

holding.

court

judge

provided

no

Even if he had,

rationale

for

such

a

For these reasons, Atlanta Casualty is not persuasive

authority that supports GEICO’s argument.
Second, GEICO argues that the case of Chadbrooke Insurance
Co.

v.

Fowler,

dispositive.

426

It is not.

policy coverage.
insurance
required

contract
by

S.E.2d

The

578

(Ga.

Ct.

App.

1992)

is

Chadbrooke is another action regarding
Chadbrooke

contains

O.C.G.A. §

a

33-7-15

court explained that if an

notice-of-suit
and

if

the

requirement

insured

fails

as
to

comply with the notice requirement, then that can “operate to
‘relieve the insurer of its obligation to defend its insureds
under the policy and of any liability to pay any judgment or
other

sum

on

behalf

of

its

insureds.’”

Id.

at

580

(quoting

Mahone v. State Farm Mut. Auto. Ins. Co., 373 S.E.2d 809, 811
(Ga.

Ct.

App.

1988)).

In

Chadbrooke,

the

insured

did

not

satisfy the notice requirement, so the insurer was “relieved of
its obligation to pay the judgment entered against” its insured.

2

The opinion of the Georgia Court of Appeals tells a dramatically
different story of the facts on appeal: the plaintiff did assert a bad
faith failure to settle claim, there was evidence of a settlement
demand, and there was evidence that the insurer had notice of the suit
before the default judgment was entered.
See generally Thomas v.
Atlanta Cas. Co., 558 S.E.2d 432 (Ga. Ct. App. 2001).
Based on the
fact disputes regarding the insurer’s notice and opportunity to
settle, the Court of Appeals found that the superior court judge erred
in dismissing the plaintiff’s counterclaims. Id. at 439-40.

12

Id. at 581.

In other words, the insurer was not contractually

obligated to pay the judgment against its insured.

Like Atlanta

Casualty,

before

this

case

does

not

address

the

issue

this

Court—the measure of damages in a bad faith or negligent failure
to settle case.
For all of these reasons, the Court denies GEICO’s motion
to exclude the amount of the default judgment.
2.

Text of the Default Judgment

In addition to the amount of the default judgment, GEICO
objects to the text of the default judgment, particularly the
superior court judge’s findings of fact that explain the basis
for the amount of the default judgment.
motion is granted.

This portion of GEICO’s

The default judgment order is hearsay, and

it is not admissible under the public records hearsay exception
of Federal Rule of Evidence 803(8).
F.3d 1549, 1554 (11th Cir. 1994).

United States v. Jones, 29
Therefore, P-29 is excluded,

except Plaintiff shall be permitted to introduce the amount of
the default judgment.
B.

GEICO’s Motion in Limine # 2: Post-May 23, 2012
Evidence of the Injured Plaintiff’s Bodily Injury
Claim (ECF No. 54)

GEICO seeks to exclude post-May 23, 2012 medical evidence
regarding the injured plaintiff’s bodily injury claim.

GEICO

contends that such evidence is not relevant on the issue of
whether

GEICO

acted

reasonably

13

in

rejecting

the

injured

plaintiff’s settlement demand on May 23, 2013.

That is true.

As discussed above, the jury in this case shall not be permitted
to reconsider the amount of the default judgment; the jury’s job
is to determine whether that injury was caused by GEICO, its
insured, or some combination of the two.
Plaintiff nonetheless argues that evidence from after May
23,

2012

is

relevant

to

show

what

medical

treatment

was

foreseeable when GEICO considered and rejected the settlement
demand.

But

GEICO

had

to

determine

whether

future

medical

treatment was foreseeable at the time of its decision—not with
the benefit of 20/20 hindsight six years later.

Therefore, the

injured

not

plaintiff’s

medical

records

that

were

reasonably

available to GEICO as of May 23, 2012 are irrelevant.

If any

portions of P-44, P-45, P-46, and P-47 are dated after May 23,
2012, they are excluded.
C.

GEICO’s Motion in Limine ## 3 & 4: Evidence of Events
After July 31, 2012 (ECF Nos. 54 & 76)3

GEICO seeks to exclude evidence of its conduct after July
31, 2012 (the day before the default judgment was entered on
August 1, 2012), including evidence of how GEICO handled the
claim after it learned of the default judgment and evidence that
GEICO

3

hired

Plaintiff
issue (ECF
“motion” to
Plaintiff’s

an

attorney

to

represent

moved to strike GEICO’s
No. 76) as untimely.
be a supplement that was
motion to strike (ECF No.

14

its

insured

in

the

second motion in limine on this
The Court considers the second
submitted at the Court’s request.
79) is therefore denied.

involuntary bankruptcy action.4
is

irrelevant

whether

to

GEICO

the

acted

two

GEICO argues that such evidence

issues

the

unreasonably

jury

in

must

rejecting

decide:
the

(1)

injured

plaintiff’s policy limits settlement demand, and (2) if so, the
amount

of

damages

proximately

caused

by

GEICO’s

failure

to

settle the claim within policy limits.
Plaintiff contends that the evidence is relevant to show a
breach

of

GEICO’s

insured.

continuing

duty

of

good

faith

toward

its

Plaintiff asserts that GEICO’s duty of good faith

extended beyond its decision of whether to accept an offer to
settle a claim within policy limits, but the cases Plaintiff
relies on do not support this argument.
First, Plaintiff relies on U.S. Fidelity & Guaranty Co. v.
Evans, 156 S.E.2d 809 (Ga. Ct. App. 1967).

In that case, the

insurance company rejected a settlement demand for $9,500.00.
The

case

went

$25,000.00.

to

trial

After

the

and

the

verdict

jury
but

awarded

before

the

the

plaintiff

appeal,

the

plaintiff made a second settlement demand for the policy limit
of

$10,000.00,

and

the

insurance

company

rejected

it.

The

Georgia Court of Appeals affirmed the jury’s verdict, and then
the insured sued based on the insurer’s refusal to accept the
settlement demands.

A jury concluded that the second refusal

was in bad faith and awarded the insured $15,000.00 (the amount
4

GEICO does not seek to exclude post-August 1, 2012 evidence if it is
relevant bias, interest, or impeachment evidence.

15

of the excess verdict).

The question before the Georgia Court

of Appeals was whether there was enough evidence for a jury to
conclude that the insurer, in refusing the second settlement
demand,

breached

its

duty

“to

refrain

from

taking

an

unreasonable risk on behalf of its insured”—a risk that the
“trial

would

involve

chances

of

unfavorable

results

out

reasonable proportion to the chances of favorable results.”

of
Id.

at 811-12 (quoting Robert E. Keeton, Liability Insurance and
Responsibility
(1954)).

for

Settlement,

The answer was yes.

67

Harv.

L.

Rev.

Id. at 811-12.

1136,

1147

In sum, Evans

teaches that an insurer must “give at least equal consideration
to the interest of the insured” in deciding whether to accept or
reject a policy limits settlement demand.

Id. at 812.

Second, Plaintiff relies on Thomas v. Atlanta Casualty Co.,
558 S.E.2d 432 (Ga. Ct. App. 2001).5

In that case, an injured

person filed an action against the insured;

the insurer was

notified, but that action was dismissed without prejudice.

The

injured person filed a renewal action and served the insured.
The insured did not notify the insurer of the renewal action,
but there was evidence that the injured person did notify the
insurer.

Neither

the

insured

nor

the

insurer

defended

the

lawsuit, and a default judgment was entered against the insured.
The insurer argued that it was relieved of its obligation under
5

This case is the appeal of Atlanta Casualty Co. v. Maestas, discussed
supra § III.A.1.

16

the policy to pay any judgment on behalf of the insured based on
O.C.G.A. §
however,

33-7-15(b).

that

because

The
there

Georgia
was

Court

evidence

of

Appeals

that

the

found,
insurer

received a copy of the renewed complaint from the injured party
before

the

whether

default

O.C.G.A. §

judgment,
33-7-15(c)

there

was

applied

to

a

fact

prevent

question
the

on

insurer

from relying on the insured’s failure to forward a copy of the
complaint to bar coverage.

Thomas, 558 S.E.2d at 437-38.

And,

there was evidence that after the default judgment was entered,
the insured’s attorney made a demand on the insurer to settle
the case within policy limits.
The

Thomas

Id. at 438.

court explained that if there is a “default

judgment already in excess of the policy limits, the insurer has
the duty to act with the utmost good faith on behalf of the
insured to dispose of the judgment against her without exposing
her to the risk of excess liability inherent in the default
judgment.”

Id. at 439.

“In deciding whether to accept an offer

to settle a claim within policy limits, the insurer must accord
the interest of its insured the same faithful consideration it
gives its own interest.”

Id. (emphasis added) (quoting Southern

Gen. Ins. Co. v. Holt, 409 S.E.2d 852, 856 (Ga. Ct. App. 1991)).
“When

the

whether

or

insurer
not

to

considers
settle

a

its
case

own

self-interest

within

policy

regarding

limits,

the

insurer must give at least equal consideration to the interests

17

of its insured under the facts and circumstances of the case.”
Id. (emphasis added).

Therefore, Thomas establishes that if the

insurer arguably has some duty to entertain a settlement demand
after a default judgment is entered (e.g., because it had notice
of

the

underlying

lawsuit

before

the

default

judgment

was

entered) but refuses to do so, then there is generally a genuine
factual dispute on whether the insurer acted in bad faith.

Id.

Based on Evans and Thomas, it is clear that an insurer has
a duty to exercise good faith in deciding whether to accept a
settlement offer within policy limits so that its insured is not
exposed to an unreasonable risk of an excess judgment.

That

duty does not end with an initial settlement demand: if the
insurer has an opportunity to settle the case within policy
limits after an excess judgment is entered against the insured,
then

the

insurer

consideration

it

settlement demand.
authority

for

must

give

its

insured’s

gives

its

own

interest

interest
in

the

same

evaluating

that

But Evans and Thomas do not provide any

finding

that

further, as Plaintiff argues.

this

“continuing

duty”

extends

Here, unlike in Evans and Thomas,

there is no evidence of a policy limits demand after the default
judgment, and the Court is unaware of any evidence that GEICO
rejected an opportunity to settle for the policy limits after
the default judgment was entered against the insured.

Without

an opportunity to settle after the default judgment, GEICO could

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not eliminate the risk of an excess verdict (except, perhaps, by
seeking to

have the default judgment set aside, which GEICO

tried and failed to do), so GEICO’s actions after the default
judgment

are

irrelevant.

Accordingly,

evidence

of

GEICO’s

actions after July 31, 2012, including evidence that it hired an
attorney

to

represent

its

insured

in

the

bankruptcy

action,

shall be excluded unless it is relevant to show bias or interest
or is used as impeachment evidence.
D.

GEICO’s Motion in Limine # 4: Evidence that GEICO
Hired Ted Theus to Challenge the Default (ECF No. 54)

GEICO also seeks to exclude as irrelevant evidence that it
hired attorney Ted Theus to represent its insured in seeking to
set aside the default.

Plaintiff argues that this evidence is

relevant on the issue of proximate cause because Theus will
testify that he believed, based on his conversation with the
insured, that she did not know that she needed to inform GEICO
of the lawsuit against her.

In other words, Plaintiff wants to

offer as evidence Theus’s testimony regarding what the insured
told

him.

Plaintiff

offered

no

basis

for

admitting

this

hearsay, so it will not be admitted.
E.

Plaintiff’s Motion in Limine # 16: Evidence or
Argument Regarding the Default Judgment’s Alterability

Plaintiff
that

the

argues

amount

of

that
the

the

Court

default

19

should

judgment

exclude

can

be

argument

changed

or

altered.

For

the

reasons

set

forth

in

§ II,

this

motion

is

granted.
IV.

Deposition Designations
Plaintiff and GEICO designated deposition testimony to be

played at trial.

They each filed objections to the other’s

designations.
A.

GEICO’s Objections (ECF No. 68)
1.

Depositions of Barry Heitin and Steve Fike

GEICO objects to all of Plaintiff’s designations from the
deposition of Barry Heitin and most of the designations from the
deposition of Steve Fike.6
to

GEICO’s

above,

such

post-default
evidence

The objected-to designations relate
judgment

is

activities.

irrelevant.

The

As

discussed

Court

therefore

sustains GEICO’s objections to these designations.
2.

Deposition of Charlie Goodroe

GEICO objects to all of Plaintiff’s designations from the
deposition

of

Charlie

Goodroe

because

Plaintiff

established that Goodroe will be unavailable for trial.
pretrial

conference,

the

Court

emphasized

that

it

has

not

At the
follows

Federal Rule of Civil Procedure 32 regarding permissible use of
depositions at trial.

Therefore, the Court sustains GEICO’s

objections to these designations at this time.

6

If Plaintiff can

GEICO did not object to the following designations from Steve Fike’s
deposition: 4:1-25, 5:1-10, 40:1-8.

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show a basis for using this deposition at trial, the Court will
reconsider this ruling.
B.

Plaintiff’s Objections (ECF No. 69)

Plaintiff
deposition

of

objects
Bonnie

to

GEICO’s

Winslett

and

designations
also

asks

from

that

the

certain

portions of her deposition be played if her video deposition is
used in lieu of live testimony at trial.

Before the Court

evaluates the propriety of these designations, the Court would
like

to

know

if

such

an

exercise

is

necessary.

Therefore,

within seven days of today’s order, each party shall file a
short

supplemental

brief

that

states

expected to testify live at trial.

whether

Winslett

is

GEICO may also respond to

Plaintiff’s objections and additional designations.
CONCLUSION
As discussed above, the Court intends to submit special
interrogatories to the jury on the causation and damages issues
addressed

in

this

Order.

The

parties

shall

submit

revised

proposed jury instructions and proposed verdict forms by May 18,
2018.

GEICO’s Motion in Limine #1 (ECF No. 54) is granted in

part and denied in part; GEICO’s Motion in Limine #2: (ECF No.
54) is granted; GEICO’s Motions in Limine # 3 and # 4 (ECF Nos.
54 & 76) are granted; Plaintiff’s Motion in Limine # 16 (ECF No.
57) is granted; and Plaintiff’s Motion to Strike (ECF No. 79) is
denied.

The Court sustains GEICO’s objections to Plaintiff’s

21

deposition designations.

The Court defers ruling on Plaintiff’s

objections to GEICO’s deposition designations; within seven days
of today’s Order, each party shall file a short supplemental
brief as instructed supra § IV.B.
IT IS SO ORDERED, this 29th day of March, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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