KAAPA Ethanol v. Affiliated FM Insurance

Filing 351

ORDER - Plaintiff's motion in limine to preclude evidence or argument relating to alleged lack of cooperation 262 is denied as moot as defendant has represented to the Court that it does not intend to offer such evidence. Plaintiff's mot ion in limine to allow the admission of certain testimony by Donald Malecki 266 is denied as moot, as defendant has represented to the Court that it will not offer designated deposition testimony of Mr. Malecki. Plaintiff's motion in limine t o preclude the designation of deposition testimony of witnesses who can be compelled to appear at trial 270 is denied as moot, as defendant has represented to the Court that it will not seek to introduce designated deposition testimony of witnesses who can be compelled to appear at trial. Defendant's motion in limine to exclude any opinion of or testimony by Michael LoGiudice as to the applicable deductible under the Affiliated FM policy 294 is granted. Defendant's motion in limi ne for the preclusion of testimony from Jim Faulconbridge 298 is denied without prejudice. All other pending motions in limine 278 , 286 , 290 , 302 , 306 , 310 will be denied at this time without prejudice. The parties may renew these motions at the time the evidence is offered at trial. Ordered by Senior Judge Lyle E. Strom. (KBJ)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA KAAPA ETHANOL, LLC, ) ) Plaintiff, ) ) v. ) ) AFFILIATED FM INSURANCE ) COMPANY, ) ) Defendant. ) ______________________________)

7:05CV5010

ORDER

This matter is before the Court on several of plaintiff's and defendant's motions in limine. IT IS ORDERED: 1) Plaintiff's motion in limine to preclude evidence Upon review,

or argument relating to alleged lack of cooperation (Filing No. 262) is denied as moot as defendant has represented to the Court that it does not intend to offer such evidence. Defendant has

indicated that it intends to offer some evidence that may be tangentially related to lack of cooperation for a different purpose. The Court reserves ruling at this time as to whether

such evidence is admissible, and plaintiff may renew its objection at the time the evidence is offered; 2) Plaintiff's motion in limine to allow the admission

of certain testimony by Donald Malecki (Filing No. 266) is denied as moot, as defendant has represented to the Court that it will not offer designated deposition testimony of Mr. Malecki;

3)

Plaintiff's motion in limine to preclude the

designation of deposition testimony of witnesses who can be compelled to appear at trial (Filing No. 270) is denied as moot, as defendant has represented to the Court that it will not seek to introduce designated deposition testimony of witnesses who can be compelled to appear at trial; 4) Defendant's motion in limine to exclude any opinion

of or testimony by Michael LoGiudice as to the applicable deductible under the Affiliated FM policy (Filing No. 294) is granted. Reading the respective briefs of the parties, it

appears that plaintiff does not intend to seek such opinion testimony from Mr. LoGiudice. As he is an expert and did not

include this in his expert report, he would be precluded from testifying as an expert as to the terms of the policy. Beyond

that, the Court does not know what testimony the plaintiff intends to offer in this regard and can only rule on the admissibility of such evidence at the time it is being offered. 5) Defendant's motion in limine for the preclusion of

testimony from Jim Faulconbridge (Filing No. 298) is denied without prejudice. The Court notes from the pretrial conference

order that Judge Kopf has in effect ruled on this matter by providing that Mr. Faulconbridge may be deposed by the defendant prior to trial; deposition costs to be borne by plaintiff. His

name is included on the witness list and he will be permitted to

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testify, provided the parties have complied with Judge Kopf's order. 6) All other pending motions in limine (Filing Nos.

278, 286, 290, 302, 306, 310) will be denied at this time without prejudice. The parties may renew these motions at the time the

evidence is offered at trial. DATED this 12th day of November, 2009. BY THE COURT: /s/ Lyle E. Strom ____________________________ LYLE E. STROM, Senior Judge United States District Court

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