Mason v. Allstate Insurance Company

Filing 58

OPINION AND ORDER DENYING 48 Motion to Exclude. Signed by Judge Steven D. Grimberg on 11/15/2023. (tas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GREGORY C. MASON,
Plaintiff,
v.
ALLSTATE INSURANCE COMPANY,

Civil Action No.
1:21-cv-04044-SDG

Defendant.
OPINION AND ORDER
This case is before the Court on Defendant’s motion in limine to exclude
opinion testimony of Plaintiff’s Consulting Contractors [ECF 48]. After careful
consideration, the Court DENIES Defendant’s motion.
I.

Background
This dispute arises from Plaintiff Gregory Mason’s claim that Defendant

Allstate Insurance Company breached the terms of his homeowner’s insurance
policy (the Policy) by failing to fully compensate him for damage to his home
caused by a tree that fell on April 18, 2020. 1 Plaintiff submitted a claim, and Allstate
conducted an investigation to evaluate the damage. 2 Allstate made a payment to
Plaintiff to cover the cost of the damage, but Plaintiff claims he is owed additional
funds for damages to his home’s foundation caused by the falling tree.

1

ECF 1, ¶ 6; ECF 1-1, ¶¶ 6–7; ECF 29-3, ¶ 1.

2

ECF 34, ¶ 3.

The Court denied Defendant’s motion for summary judgment. 3 As part of
its ruling, the Court determined that the testimony of Jason Houp, the owner of
Advanced Property Restoration Services who will testify regarding the cost to
repair the home’s foundation, was not per se inadmissible and did not require
expert disclosure. Defendant now moves to exclude the testimony of Jason Houp
and Plaintiff’s other “Consulting Contractors” through this motion in limine.
II.

Legal Standard
“A motion in limine is ‘any motion, whether made before or during trial, to

exclude anticipated prejudicial evidence before the evidence is actually offered.’”
Benjamin v. Experian Info. Sols., Inc., No. 1:20-CV-2466-RWS, 2022 WL 1697876, at
*1 (N.D. Ga. Mar. 25, 2022) (quoting Luce v. United States, 469 U.S. 38, 40 n.2 (1984)).
In fairness to the parties and their ability to put on their respective cases, a court
should exclude evidence in limine only when it is clearly inadmissible on all
potential grounds. Luce, 469 U.S. at 41. The movant has the burden of
demonstrating that the evidence is inadmissible on any relevant ground. In re
Seroquel Prod. Liab. Litig., No. 606MD-1769-ORL-22DAB, 2009 WL 260989, at *1
(M.D. Fla. Feb. 4, 2009). “Unless evidence meets this high standard, evidentiary
rulings should be deferred until trial so that questions of foundation, relevancy,
and potential prejudice may be resolved in proper context.” Id. Denial of the

3

ECF 46.

motion means the court cannot determine whether the evidence in question
should be excluded outside the trial context. Id. (internal citation omitted). It does
not mean that all evidence contemplated by the motion necessarily will be
admitted at trial. Id. At trial, the court may alter its ruling based on the proceedings
or on its sound judicial discretion. Id.
III.

Discussion
While the Court invited Defendant to raise the issue of expert disclosure

again at the motion in limine stage, it nonetheless finds that opinion testimony from
Jason Houp and Plaintiff’s other witnesses is not per se inadmissible. Thus, their
testimony should not be excluded at this stage. Similar to its motion for summary
judgment, Allstate argues that Plaintiff is seeking to introduce expert testimony
from his Consulting Contractors without having identified them as experts. The
Court disagrees at this stage.
Federal Rule of Evidence 701 permits lay witnesses to testify to an opinion
when it is:
(a) Rationally based on the witness’s perception;
(b) Helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) Not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
According to the committee notes to the rule, subsection (c) is not designed to
prohibit lay witnesses from testifying about matters of “particularized knowledge

that the witness has by virtue of his or her position in the business.” It is generally
accepted that a witness may offer an opinion under Rule 701, “even if it is a
technical one, based on the witness’s personal knowledge and experience.”
Strategic Decisions, LLC v. Martin Luther King, Jr. Ctr. for Nonviolent Soc. Change, Inc.,
No. 1:13-CV-2510-WSD, 2015 WL 4727143, at *9 (N.D. Ga. Aug. 10, 2015); see also
Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1222–23
(11th Cir. 2003).
Defendant has provided numerous out-of-district cases that stand for the
proposition that cost estimates often require expert testimony, but the law in the
Eleventh Circuit is not so clear. The Court need not reiterate its reading of the case
law in this Circuit. 4 However, it will clarify the grounds on which it finds lay
opinion testimony admissible.
A review of the binding case law highlights a couple of factors that
distinguish expert and lay testimony in the relevant circumstances. First, personal
involvement in the project about which the witness seeks to testify is critical. This
was a key factor in Tampa Bay—all employees allowed to testify regarding the
reasonableness of charges actually worked on the project in some capacity.
Further, in United States v. Myers, 972 F.2d 1566, 1577 (11th Cir. 1992), the Eleventh

4

ECF 46, at 10–15.

Circuit held that a police officer’s testimony that a “reddish burn mark on a
victim’s back [was] consistent with marks that would [be] left by a stun gun” did
not fall outside Rule 701 because it was premised on “rational perception” based
in part on the witness’s past experiences. The court rejected the defendant’s
argument that this testimony “went beyond the everyday common knowledge of
a lay person,” instead finding that the officer’s testimony was “rationally based on
his personal perception of [the victim’s] back and his nineteen years of experience
in the police force.” Id.
The type of personal involvement in providing an estimate was also a
distinguishing factor in Armstead v. Allstate Prop. & Cas. Ins. Co., No. 1:14-CV-586WSD, 2016 WL 928722, at *3 (N.D. Ga. Mar. 11, 2016). There, the two witnesses
“were engaged specifically to challenge Allstate’s damages estimate and the
processing of Plaintiff’s claim under the Policy.” Id. They were insurance adjusters
“retained…to advocate on Plaintiff’s behalf in this insurance dispute. [The
witness] performed his professional services for Plaintiff pursuant to a retainer
agreement that Plaintiff entered into with United States Adjusters, the public
adjuster company that employed [the witness].” Id. That is not the case here.
Mr. Houp, for example, is not an adjuster and was not hired to challenge any
previous estimates. He is a contractor who was engaged by Plaintiff to repair his
home, part of which requires providing an estimate.

Second, testimony reflecting information gained through a course of
employment, specifically, as the business owner, is admissible. In Tampa Bay, the
defendant argued that “any testimony as to ‘industry standards’ and
reasonableness are necessarily precluded due to Rule 701’s 2000 amendment.” Id.
at 1217. In overruling the objection, the court noted that “most courts have
permitted the owner or officer of a business to testify to the value or projected
profits of the business without the necessity of qualifying the witness as an
accountant, appraiser or similar expert.” Id. at 1218. Additionally, the court noted
that Rule 701 allowed the testimony “because of the particularized knowledge that
the witness has by virtue of his or her position in the business.” Id. Even more
specifically, the court noted that the business owner was allowed to testify as to
the reasonableness of charges because it was the business he engages in every
day—“he makes estimates, sets prices.” Id. His ability to testify regarding the
reasonableness of prices was admissible because his knowledge of estimates and
prices was gained through the course of his employment and based on his
particularized knowledge. 5 The Circuit likened the testimony to other similar

5

The Court does not interpret this holding as dependent on the fact that work
had already been completed. In fact, one business owner was allowed to testify
to estimates provided:
Q. What was the estimated cost of that work?
A. $30,000.

cases in this district and ultimately concluded that “Tampa Bay’s witnesses
testified based upon their particularized knowledge garnered from years of
experience within the field.” Id. See also Plumbers & Pipefitters Union No. 421 Health
& Welfare Fund v. Brian Trematore Plumbing & Heating, Inc., No. 5:11-CV-221 HL,
2013 WL 2333208, at *5 (M.D. Ga. May 28, 2013) (finding admissible business
owner testimony regarding work typically done on a construction project as well
as work done on the particular project.).
The Court recognizes the fine line here. It also acknowledges the murky and
unsettled nature of case law addressing this issue in this Circuit. Nonetheless, at
this pretrial stage, there is an insufficient basis to categorically exclude Plaintiff’s
witnesses.
IV.

Conclusion
The Court DENIES Allstate’s motion in limine [ECF 48].
SO ORDERED this 15th day of November, 2023.

Steven D. Grimberg
United States District Court Judge
Q. Was that just an estimate or was that an actual quotation from
PG&H for this work?
A. Well, it was an estimate, because whenever you get into
straightening, I will never give a hard dollar estimate for
straightening anything.
Id. at 1219.