AMW Sports, LLC et al

Filing 76

RULING denying 44 Motion in Limine to Exclude Settlement Communications. Signed by Magistrate Judge Stephen C. Riedlinger on 1/13/2012. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

AMW SPORTS, LLC D/B/A THE
ATHLETE’S FOOT

CIVIL ACTION

VERSUS

NUMBER 10-651-SCR

STATE FARM FIRE AND CASUALTY
COMPANY
RULING ON MOTION IN LIMINE
TO EXCLUDE SETTLEMENT COMMUNICATIONS
Before the court is the Motion in Limine to Exclude Settlement
Communications Pursuant to Federal Rule of Evidence 408 filed by
defendant State Farm Fire and Casualty Company.
number 44.

Record document

The motion is opposed.1

Defendant seeks an order determining that the April 12, 2011
letter from the plaintiffs’ attorney to the defendant’s attorney is
inadmissible in evidence pursuant to Rule 408(a)(2), Fed.R.Evid.,
as a settlement communication. Subsection (a) of the rule provides
as follows:
(a) Prohibited uses.— Evidence of the following is not
admissible—on behalf of any party—either to prove or
disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a
contradiction:
(1) furnishing, promising or offering—or accepting,
promising to accept, or offering to accept—a
valuable
consideration
in
compromising
or
attempting to compromise the claim; and
(2) conduct or a statement made during compromise
negotiations about the claim—except when offered in
1

Record document number 72.
Record document number 75.

Defendant also filed a reply.

a criminal case and when the negotiations related
to a claim by a public office in the exercise of
its regulatory, investigative, or enforcement
authority.
Defendant characterized the letter as a “settlement demand”
and complained that it contains broad, unsupported assertions made
during compromise negotiations which would be prejudicial to the
defendant if presented to the jury.
Contrary to the defendant’s argument, the letter does not
contain

any

offer

to

settle

or

compromise

any

part

of

the

plaintiffs’ claims.2 The letter demands an unconditional tender of
an unspecified amount owed under the policy.

Defendant asserted

that the letter is part of the parties’ efforts to reach a
compromise.

But the defendant has not offered any evidence to

establish this.

For example, the motion is not supported with

copies of other correspondence preceding the April 12 letter
showing that the parties were engaged in settlement negotiations.
Nor is the motion supported with an affidavit by counsel for the
defendant stating that before the letter was sent the parties were
engaged in settlement negotiations.
Since the defendant has not shown that the letter is a
statement made in compromise negotiations regarding the claim, it

2

The court recently granted summary judgment dismissing the
claims of the individual plaintiffs because they are not insured
under the State Farm insurance policy issued to plaintiff AMW
Sports, LLC. Record document number 58. Since the letter was sent
when the individual plaintiffs were still asserting that they had
claims, this ruling refers to the plaintiffs collectively.
2

is not barred from evidence by Rule 408.
Plaintiffs also argued that the letter is admissible as a
McDill

demand.3

Plaintiffs

argued

that

the

demand

for

an

unconditional tender is relevant because the plaintiffs has alleged
bad faith.

Defendant argued in its opposition memorandum that the

letter

not

is

a

McDill

demand

letter

and

the

plaintiff

is

attempting to use the letter to paint it in a bad light in front of
the jury.
McDill

itself

does

not

require

a

formal

demand

for

an

unconditional tender of payment of the undisputed amount of the
claim.

A demand for payment is required by LSA-R.S. 22:1892(B) as

a predicate to a claim for penalties and attorney’s fees.4
It is not appropriate to determine whether the April 12 letter
is relevant and admissible as a McDill demand at this time.
Defendant’s objection to the April 12 letter is that it contains
unsupported assertions of fact that have not been proved, namely
that

the

plaintiffs

suffered

“losses

sustained

by

looters.”

Clearly, whether the plaintiffs suffered “losses sustained by

3

McDill v. Utica Mutual Ins. Co., 475 So.2d 1085 (La. 1985).

4

But at least on Louisiana appellate court has held that a
formal demand for payment is not required where the insurer has
already denied the claim or refused to pay. Wilkins v. Allstate
Ins. Co., 173 So.2d 199 (La.App. 1st Cir. 1965). It is undisputed
in this case that the defendant formally denied all of the
plaintiffs’ claims by letter dated November 24, 2009.
Record
document number 19-10, Exhibit H. A formal demand for payment is
not a prerequisite to a recovery of penalties under LSA-R.S.
22:1973.
3

looters” (emphasis added) are both disputed issues, and the letter
will not be offered - and certainly not admitted - as proof of
either fact.
prove

that

Rather, it appears the letter will be offered to
the

plaintiffs

unspecified amount.

made

a

demand

for

payment

of

an

Moreover, it is clear from the pretrial order

that the plaintiffs will offer other evidence to prove that a theft
occurred and the amount of the loss.

And if the defendant

stipulates that on April 12, 2009 the plaintiffs made a formal
demand for payment of an unconditional tender, the letter may not
be admitted since it would not be relevant to any disputed fact
issue.

If the letter is admitted into evidence, and if requested

by the defendant and warranted at that time, the court will
instruct the jury that the letter may be considered only for the
limited purpose of proving that the plaintiffs made a formal demand
for payment and when the demand was made.
Accordingly, the defendant’s Motion in Limine to Exclude
Settlement Communications Pursuant to Federal Rule of Evidence 408
is denied.

This ruling only determines that the April 21, 2011

letter is not barred by Rule 408.

It is not a determination that

any other objections to it being admitted into evidence have, or do
not have, merit or that the letter will be admitted into evidence.
Baton Rouge, Louisiana, January 13, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
4