Lovell et al v. Childs et al

Filing 55

ORDER granting in part and denying in part 43 MOTION in Limine filed by Kathy M. Lovell, Jody M. Lovell. (GEC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KATHY M. LOVELL, ET AL

CIVIL ACTION

VERSUS

NO. 07-568

MARVIN CHILDS, ET AL

SECTION “K”(5)

ORDER AND OPINION

Before the Court is the “Motion in Limine” filed on behalf of plaintiffs Kathy and Jody
Lovell (Doc. 43). Having reviewed the pleadings, memoranda, and relevant law, the Court, for the
reasons assigned, grants the motion in part and denies it in part.
Background
This suit involves a claim arising from an automobile accident. While the vehicle operated
by Jody Lovell was stopped at a red light, a vehicle operated by Marvin Childs struck Mr. Lovell’s
vehicle from the rear. At the time of the accident, Empire Fire and Marine Insurance Company
(“Empire”) insured the vehicle operated by Mr. Childs, and Progressive Insurance Company
(“Progressive”) provided uninsured/underinsured coverage for the vehicle operated by Mr. Lovell.
Following the accident, Progressive took the unsworn recorded statement of Mr. Childs.
Jody and Kathy Lovell filed suit against Mr. Childs, Empire, and Progressive for damages
sustained as a result of the accident. During the discovery phase of this litigation, counsel for
defendant deposed Mr. Lovell concerning the accident. During that deposition the following
colloquy took place:
Q. Okay. You stopped there and what?
A. I stopped and I was sitting at the red light, and you know, sitting
there, and my wife, like she said, she was leaning over to get

something out of the glove compartment.
The light sort of changed, getting ready to change. I took my foot off
the brake and noticed a car was coming and he was trying to beat the
red light. So I put my foot back on the brake. I might have moved
about two, maybe two feet. As soon as I put my foot back on the
brake, I heard a skid behind me, and the other fellow ran into the
back of us. It’s that simple.
I imagine he was just looking at the light, you know, changing or
whatever. I’m not sure.
Q. You are sitting at the light. You sat through the light, the light
turned green for you.
A. It was getting ready to turn green. It hadn’t turned green yet. I
took my foot off the brake.
Q. And rolled forward a couple of feed?
A. Right. Looking at the traffic, the oncoming traffic, and I seen this
guy sort of speed up instead of getting ready to stop for the light. So,
I reapplied my brake. He shot across the light. I’m not sure if he ran
the red light or if it was a yellow light he ran.
But I seen he wasn’t, you know, I seen him coming and I seen he wasn’t
going to stop. So, I reapplied my brakes.
Doc. 54-1, p. 9-10.
Plaintiff seeks to exclude from the trial in this matter: 1) any evidence and argument in
support of Empire’s defense of third party fault; 2) any evidence of or reference to the unsworn
statement of Marvin Childs; and 3) any evidence of the investigating officer’s estimate of speed of
the Mr. Child’s vehicle at the time of the accident. Empire opposes the motion.

Third Party Fault

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Empire specifically pleaded the affirmative defense of fault of a third party as a cause of the
accident and injuries sustained by plaintiffs. Plaintiffs contend that Mr. Lovell, the only witness to
the accident who will testify at trial, will testify that “he was at a complete stop at a red light, then,
he let his foot off the brake allowing the vehicle to roll a few feet forward and he reapplied the
brake. Then his vehicle was rear ended.” Doc. 43-1, p. 1. Plaintiffs assert that based on these facts
Mr. Lovell “actually increased the distance available for Empire’s insured to bring his dually truck
which was towing a large piece of equipment to a stop on a wet roadway” and that the vehicle which
crossed the intersection did not have any potential impact on the cause of the accident. Id. at p. 1-2.
At trial defendant may attempt to prove the affirmative defense of fault of a third party
through the testimony of Mr. Lovell. It is for the jury to determine whether any fault for the accident
may be attributed to the vehicle that crossed the intersection. Therefore, the motion in limine is
denied to the extent that it seeks to exclude argument by Empire concerning the fault of a third party.
However, the evidence of fault of a third party shall be limited to the deposition and trial testimony
of the Lovells.
Mr. Child’s Statement
Plaintiffs seeks an order excluding as hearsay the unsworn statement given by Marvin Childs
to the Progressive insurance adjuster. Empire contends that the statement is admissible under the
“Residual Exception” to the hearsay rule. Under the residual exception to the hearsay rule, hearsay
may be admissible if (1) the statement has equivalent circumstantial guarantees of trustworthiness”;
(2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it
offered than any other evidence which the proponent can procure through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.” Fed. R. Evid.

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807.

“Congress believed that the residual exception was necessary to avoid the distortion of the
specific exceptions beyond the reasonable circumstances they were intended to include. This
exception was designed to protect the integrity of the specifically enumerated exceptions by
providing the courts with the flexibility necessary to address unanticipated situations and to facilitate
the basic purpose of the Rules: ascertainment of the truth and fair adjudication of controversies.”
Dartez v. Fibreboard Corp., 765 F.2d 456, 462 (5th Cir. 1985), citing Sen. Comm. on the Judiciary,
S.Rep. No. 1277, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 7051,
7065-66; 11 J. Moore, Moore's Federal Practice, § 803(24)[7] (2d ed. 1982).
The exception is to be “used only rarely in truly exceptional cases.”
United States v. Thevis, 665 F.3d 616, 629 (5th Cir. 1982). “[T]he
proponent of the statement bears a heavy burden to come forward
with indicia of both trustworthiness and probative force.” United
States v. Washington, 106 F.3d 983, 1001-02 (D.C. Cir. 1997). “[I]n
order to find a statement trustworthy, a court must find that the
declarant of the . . . statement ‘was particularly likely to be telling the
truth when the statement was made.’” Id. (citing United States v.
Tome, 61 F.3d 1446, 1453 (10th Cir. 1995).
United States v. Phillips, 219 F.2d 404, 419 n. 23 (5th Cir. 2000).
Empire has not satisfied its “heavy burden” of coming forward with indicia of
trustworthiness. Empire urges that the Mr. Child’s statement is trustworthy because Progressive’s
interests were aligned with those of plaintiffs. Alignment of interests standing alone, is an
insufficient indicia of trustworthiness. Mr. Childs’s statement was brief and informal. Moreover,
Mr. Childs was not subject to cross examination during that statement, which is significant because
Mr. Childs was not an impartial witness to the accident. Because of the lack of indicia of

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trustworthiness, the Court grants plaintiffs’ motion insofar as it seeks to exclude Mr. Child’s
statement.

Investigating Officer’s Estimate of Speed
Deputy Timothy May competed the accident report. In that report Deputy May estimated
that Mr. Child’s vehicle was driving at five miles per hour at the time of the accident.
Empire, which has listed Deputy May as a witness to testify concerning his investigation of
the accident, represented in its opposition to the motion that it is not “seeking to have Deputy
Timothy May give opinion testimony.” Doc. 54, p. 4. Based on that representation, the Court grants
the motion to the extent that it seeks to exclude any testimony concerning Deputy May’s estimate
of the speed of Mr. Child’s vehicle at the time of the accident. Additionally, the Court orders that
the accident report be redacted to omit Deputy May’s estimate of the speed of Mr. Child’s vehicle
at the time of the accident.
New Orleans, Louisiana, this 22nd day of March, 2012.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE

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