JCKP, LLC v. Berkley Regional Specialty Insurance Company et al

Filing 171

ORDER granting Defendant Berkley Regional Specialty Insurance Company's 157 159 161 Motions in Limine. Signed by District Judge Keith Starrett on July 18, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JCKP, LLC

PLAINTIFF

V.

CIVIL ACTION NO. 2:14-CV-117-KS-MTP

BERKLEY REGIONAL SPECIALTY
INSURANCE COMPANY

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Berkley Regional Specialty Insurance Company’s
Motions In Limine [157][159][161]. After considering the submissions of the parties, the record, and
the applicable law, the Court finds that these motions are well taken and should be granted.
I. BACKGROUND
This action involves a dispute over the commercial insurance coverage of roof damage to a
commercial building owned by Plaintiff JCKP, LLC (“Plaintiff”), at 215 Broadway Drive in
Hattiesburg, Mississippi (the “Property”). At all relevant times, the Property was insured by Defendant
Berkley Regional Specialty Insurance Company (“Defendant”). In April 2011, Plaintiff submitted a
claim stating that the roof of the Property was damaged by wind. Defendant, though, denied the claim
on the basis that the damage was not done by wind, but rather by the improper installation of the roof
and the poor repairs it subsequently underwent.
Plaintiff filed this action on April 10, 2014 in the Circuit Court of Forrest County, Mississippi,
bringing claims of breach of contract, intentional breach of contract, breach of implied covenant of
good faith and fair dealing, unjust enrichment, bad faith, intentional, gross, and/or negligent infliction
of damages, and negligence. The action was removed to this Court on July 25, 2014.

In its previous Order [154], the Court granted Defendant’s Motion for Partial Summary
Judgment [131], and dismissed Plaintiff’s claims of intentional breach of contract, breach of implied
contract of good faith and fair dealing, bad faith, and intentional and gross negligent infliction of
damages. Plaintiff’s claims of breach of contract, unjust enrichment, negligent infliction of damages,
and negligence remain pending.
Defendant has brought three motions in limine before the Court, and the Court will consider
each one in turn.
II. DISCUSSION
A.

Motion In Limine to Exclude Certain Damages [157]

Defendant brings this motion to exclude the Plaintiff from presenting certain elements of
damages originally stated in its responses to Defendant’s interrogatories. Plaintiff has agreed that these
elements are not appropriate to be presented as damages to the jury. Because Plaintiff has conceded
this issue, the Court will grant Defendant’s Motion In Limine to Exclude Certain Damages [157].
B.

Motion In Limine to Preclude Certain Testimony from Mark Silvestain [159]

Defendant brings this motion asking the Court to preclude Mark Silvestain, who Plaintiff has
designated as an expert in the fields of installation, maintenance, repair, and replacement of
commercial roofing, from offering opinion testimony as to the insurance coverage issues in the case.
Plaintiff has stated that such opinions will not be presented as testimony at trial. Because Plaintiff has
agreed to not introduce this testimony, the Court will grant Defendant’s Motion In Limine to Preclude
Certain Testimony from Mark Silvestain [159].
C.

Motion In Limine to Exclude Opinion Testimony from Ken Cooley, Shane Neely,
and Billy Parker [161]

Defendant brings this motion to request that Ken Cooley, Shane Neely, and Billy Parker be
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excluded from offering opinion testimony at trial. Plaintiff has stated that it does not intend to call
Neely and Parker as witnesses. While Plaintiff does intend to call Cooley, it has stated that Cooley’s
testimony will be limited to his own personal observations as required by Federal Rule of Evidence
701. Plaintiff contends that Cooley will testify that he personally observed a storm with high winds
and that, after the storm, he observed the damage to the roof of the Property. Because Plaintiff does
not, however, argue that Cooley should be allowed to present expert testimony, the Court assumes that
it concedes this issue as well. Therefore, because Plaintiff does not intend to call Neely or Parker as
witnesses, and because Plaintiff does not intend to offer any expert opinion testimony from Cooley,
the Court will grant Defendant’s Motion In Limine to Exclude Opinion Testimony from Ken Cooley,
Shane Neely, and Billy Parker [161]. The Court will, however, allow Cooley to testify as a lay
witness.
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion In Limine to
Exclude Certain Damages [157] is granted.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant’s Motion In Limine to
Preclude Certain Testimony from Mark Silvestain [159] is granted.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant’s Motion In Limine to
Exclude Opinion Testimony from Ken Cooley, Shane Neely, and Billy Parker [161] is granted.
Cooley will be allowed to testify as a lay witness only.
SO ORDERED AND ADJUDGED this the 18th day of July, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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