Zurich American Insurance Company v. Fluor Corporation et al

Filing 716

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED Zurichs Motion in Limine (No. 11) to exclude Zurichs attorneys recommendations and legal opinions 537 is GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED Zurichs Motion in Limine (No. 12) to exclude legal opinions regarding policy limits 538 is GRANTED. Signed by District Judge E. Richard Webber on 7/25/21. (KJS)

Case: 4:16-cv-00429-ERW Doc. #: 716 Filed: 07/25/21 Page: 1 of 4 PageID #: 49630

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FLUOR CORPORATION,
Plaintiff/Counterclaim Defendant,
v.
ZURICH AMERICAN INSURANCE
COMPANY,
Defendant/Counterclaim Plaintiff.

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No. 4:16CV00429 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Zurich American Insurance Company’s
Motion in Limine (No. 11) to exclude Zurich’s attorney’ recommendations and legal opinions
[537]; and Zurich’s Motion in Limine (No. 12) to exclude legal opinions regarding policy limits
[538].
I.

Zurich’s Motion in Limine (No. 11) to exclude Zurich’s attorneys’
recommendations and legal opinions [537].
Zurich seeks to exclude evidence and argument before the jury regarding

recommendations and legal opinions by Zurich’s coverage attorney, JoLynn Pollard and Randall
Sinnott. Zurich focuses on two attorney-client communications turned over pursuant to the
discovery sanction imposed on Zurich. First, Zurich asks to preclude outside coverage counsel
JoLynn Pollard’s June 30, 2010 Memorandum projecting claim and expense reserves. The Court
has previously addressed the admissibility of evidence of Zurich’s reserves in ruling on Zurich’s
motion in limine number 9. In its ninth motion in limine, Zurich asked the Court to bar Fluor
from “referring to, or presenting evidence or argument regarding, the existence or amount of

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Zurich’s financial reserves and settlement authority. The Court found there was a genuine
dispute as to whether the failure to increase reserves and the lack of settlement authority played a
role in Zurich’s decision making at the time of the mediation in 2010 and denied Zurich’s
motion. Consistent with its prior ruling, the Court finds Ms. Pollard’s June 30, 2010
Memorandum relevant and admissible. Zurich’s motion on this point is denied.
Zurich also seeks to bar the November 7, 2010 Sinnott and Pollard Memorandum from
evidence at trial. In the November 5, 2010 Memorandum, Zurich’s coverage counsel Sinnott and
Pollard analyzed Doe Run’s proposal to facilitate a global settlement of the Bronson-Smoger
Lawsuits. Zurich contends the memorandum does not address Zurich’s legal obligations as to
any settlement duties to its insureds, only whether Doe Run’s proposal makes financial sense for
Zurich based on certain legal assumptions. Zurich claims Fluor has consistently
mischaracterized the nature of this document, alleging it was legal advice given by Zurich’s
counsel framing Zurich’s legal obligations and that Zurich rejected that legal advice, choosing to
not settle in violation of a legal obligation to do so.
The Court will not allow Fluor to argue Zurich had a legal duty to follow outside
coverage counsel’s advice contained in this Memorandum. Moreover, the memo contains an
opinion as to the policy limits available for each plaintiff based upon an erroneous interpretation
of Missouri law that each plaintiff constitutes a separate occurrence. This analysis conflicts with
this Court’s interpretation the Bronson/Smoger plaintiffs’ injuries arose out of one occurrence
and are subject to the per occurrence limit. The Court will exclude evidence and argument
regarding the portions of the memorandum that analyze the policy limits. However, the Court
will not exclude other portions of the Memorandum unrelated to policy limits.

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II.

Zurich’s Motion in Limine (No. 12) to exclude legal opinions regarding policy
limits [538].
Zurich seeks to exclude opinion and legal argument before the jury regarding the limits of

liability established by the Zurich Policies at issue in this case. Zurich anticipates Fluor may
seek to introduce at least three separate attorney opinions regarding what the policy limits were
at the time of the November 18, 2010 mediation. Zurich argues this testimony should be
excluded under Federal Rules of Evidence 401, 403 and 702. Noting under Missouri law the
interpretation of an insurance policy is a question of law for the Court, Zurich contends attorney
opinions and legal argument regarding the limits of liability established by the Zurich Policies
would be irrelevant and present a high risk of jury confusion.
Zurich specifically objects to the following three attorney opinions.
•

The November 7, 2010 Sinnott and Pollard Memorandum discussed above under motion
in limine number 11, which analyzed Doe Run’s proposal to facilitate a global settlement
and stated limits for the 21 potentially covered plaintiffs included in the proposal would
be $45 million.

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The November 22, 2010 letter Marc Halpern wrote to Sinnott and Pollard regarding the
tentative settlement reached by Doe Run for the Bronson-Smoger Lawsuits at the
November 18, 2010 mediation. In this letter, Halpern states his opinion that the policy
limits totaled $90.6 million

•

At his deposition, witness John Wilson, Fluor’s coverage and trial counsel, offered his
opinions regarding the limits established by the Zurich Policies
Zurich argues these opinions regarding policy limits are irrelevant as they are a question

of law for the Court and would be confusing to the jury as well as prejudicial. The Court agrees.

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As the Court has determined the policy limits at issuance in this case, the Court will exclude the
above opinions of Sinnott, Pollard, Halpern, and Wilson, and any other witness,
regarding the limits established by the Zurich Policies.
Accordingly,
IT IS HEREBY ORDERED Zurich’s Motion in Limine (No. 11) to exclude Zurich’s
attorneys’ recommendations and legal opinions [537] is GRANTED, in part, and DENIED, in
part.
IT IS FURTHER ORDERED Zurich’s Motion in Limine (No. 12) to exclude legal
opinions regarding policy limits [538] is GRANTED.
Dated this 25th Day of July 2021.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE