Utica Mutual Insurance Company v. Fireman's Fund Insurance Company

Filing 414

MEMORANDUM-DECISION & ORDER that Utica Mutual Insurance Company's 364 Motion in Limine to preclude certain expert testimony by Garrett Rdmond is GRANTED; that deft Fireman's Fund Insurance Company's 383 Omnibus Motion in Limine to preclude five specific matters is GRANTED in part and DENIED in part; and that Plaintiff Utica Mutual Insurance Company's 384 omnibus motion in limine to preclude fourteen specific matters is GRANTED in part and DENIED in part. Signed by Judge David N. Hurd on 11/16/2017. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------UTICA MUTUAL INSURANCE COMPANY,
Plaintiff,
-v-

6:09-CV-853

FIREMAN'S FUND INSURANCE COMPANY,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

SIDLEY AUSTIN LLP
Attorneys for Plaintiff
One South Dearborn Street
Chicago, IL 60603

DANIEL R. THIES, ESQ.
THOMAS D. CUNNINGHAM, ESQ.
WILLIAM M. SNEED, ESQ.

WILLIAMS LOPATTO PLLC
Attorneys for Defendant
1707 L Street NW
Suite 550
Washington, DC 20036

JOHN B. WILLIAMS, ESQ.
MARY A. LOPATTO, ESQ.
FARA N. KITTON, ESQ.

DAVID N. HURD
United States District Judge

MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff Utica Mutual Insurance Company ("Utica" or "plaintiff") filed this action on July
29, 2009 against defendant Fireman's Fund Insurance Company ("Fireman's Fund" or
"defendant"). One breach of contract claim, and two counterclaims for knowing or reckless
misrepresentation or concealment and negligent misrepresentation or nondisclosure, remain.

Trial is scheduled for Monday, November 27, 2017, in Utica, New York. The parties
have now moved in limine for various pre-trial rulings. Oral argument was held on Thursday,
November 2, 2017, in Utica, New York. A pre-trial conference followed.
II. FACTS
The parties' familiarity with the facts and history of this case is presumed, and only
those facts necessary for the disposition of the pending matters will be recited.
Utica issued seven primary general liability policies to Goulds Pumps Inc. which were
in effect for annual periods between July 1, 1966 and July 1, 1973 (the "primary policies").
Utica also issued seven umbrella liability policies to Goulds which were in effect for
annual periods between July 1, 1966 through July 1, 1973 (the "umbrella policies").
Fireman's Fund issued seven facultative reinsurance policies to Utica which were in
effect for annual periods between July 1, 1966 through July 1, 1973 (the "certificates").
Simply stated, Utica insured Goulds on the primary and umbrella levels, and Fireman's
Fund reinsured Utica. Fireman's Fund also reinsured that reinsurance themselves.
Following claims in the late 1990s for bodily injury due to asbestos in Goulds
pumps, litigation ensued in California and New York to determine the rights of Goulds and
its insurers, including Utica (the "coverage litigation"). Goulds and Utica settled in
February 2007 for $325 million (the "Settlement Agreement").1
In July 2008, Utica provided notice to Fireman's Fund of the Goulds loss and
submitted a reinsurance claim under the seven certificates. As of July 2009, Fireman's
Fund had not paid the claims and Utica initiated this suit.

1

The agreement was specifically memorialized in four documents. For ease of reference, the
settlement will be referred to merely as the Settlement Agreement.
-2-

III. PROCEDURAL HISTORY
Following limited discovery, Utica moved (in two separate motions) for partial
summary judgment disposing of two of Fireman's Fund's affirmative defenses: (1) its late
notice defense, and (2) its bad faith notice defense. On February 9, 2015, a
Memorandum-Decision and Order was issued denying both of Utica's motions for partial
summary judgment. It was held that if, at trial, Fireman's Fund can establish that it suffered
actual prejudice from Utica's late notice (in the form of lost commutations), it would be
entitled to complete relief from its duty to indemnify Utica. It was further held that disputed
issues of fact exist as to whether Utica acted in bad faith in failing to provide timely notice,
but that if a jury found it did act in bad faith, Fireman's Fund would be relieved of its duty to
indemnify Utica.
Discovery continued and later, the parties filed a combined total of eight additional
motions. On February 24, 2017, a Memorandum-Decision and Order was issued:
(1) granting in part and denying in part Fireman's Fund's motion for judgment on the
pleadings on Counts II and III, and dismissing Count III as duplicative of Count I; (2) denying
Fireman's Fund's motion for partial summary judgment on Count I (Utica's "Aggregate Limits"
contention), finding that the contracts required to resolve that issue were incomplete and not
fully provided; (3) granting Fireman's Fund's motion for partial summary judgment on Count
II, and dismissing the bad faith claim (Count II) because on no set of facts could Utica show
that Fireman's Fund acted in bad faith and/or had no arguable basis to challenge its claim,
nor could Utica prove that no reasonable carrier would, under the given facts, challenge its
claim; (4) denying Fireman's Fund's motion for summary judgment to dismiss Count I on the
follow the settlement doctrine because factual disputes remain; (5) denying Fireman's Fund's
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motion in limine to preclude testimony of Utica expert Dennis R. Connolly; (6) denying Utica's
motion for partial summary judgment on the follow the fortunes doctrine because factual
disputes remain; (7) denying Utica's motion for partial summary judgment that FFIC is not
entitled to rescission on its counterclaims because factual disputes remain; and (8) denying
Utica's motion for partial summary judgment that notice was not due before February 1999
because factual disputes remain.
The pending motions in limine are now ripe for consideration.
IV. DISCUSSION
First, plaintiff moved to preclude defendant's expert Garrett Redmond. Defendant
opposed and plaintiff replied.
Next, defendant moved to preclude five specific evidentiary matters. Plaintiff opposed
and defendant replied.
Finally, plaintiff filed a letter advising of fourteen distinct evidentiary matters expected
to arise at trial and stated its position on same. The letter was construed as an omnibus
motion in limine and briefing was ordered. Defendant opposed and plaintiff replied.
A. Plaintiff Utica's Motion to Preclude Fireman's Fund Expert Garrett
Redmond
Utica moves to preclude certain testimony of Garrett Redmond ("Redmond").
Redmond was employed by Fireman's Fund from 1957 through 1975.2 It is undisputed that
he did not work on the specific insurance policies at issue in this case. His proposed
testimony relates to the existence of aggregate limits on Utica's primary policies. Specifically,

2

He was the chief underwriter for some or all of this time period.
-4-

Utica seeks to preclude Redmond from offering testimony at trial3 on the following two
propositions: (1) that Utica misrepresented or omitted facts to Fireman's Fund in 1966
through 1972 respecting whether the primary policies it issued to Goulds for those policy
years had aggregate limits, and (2) that the primary policies Utica issued to Goulds during
that time period did not have aggregate limits.
First, it is noted that the ruling made in the February 24, 2017 Memorandum-Decision
and Order as to Redmond was under the summary judgment standard and his testimony was
not ruled admissible or inadmissible per se at trial. It is undisputed that Redmond lacks
personal knowledge as to the above specific propositions and therefore he cannot testify as
to those matters as a fact witness under Federal Rule of Evidence ("FRE") 602. See, e.g.,
John Hancock Prop. & Cas. Ins. Co. v. Universale Reinsurance Co., 147 F.R.D. 40, 44-45
(S.D.N.Y. 2003) (rejecting reinsurer's attempt to have a person not involved in the
underwriting testify as to what the actual underwriters knew, intended, or would have done).
He may however testify as a fact witness as to what Fireman's Fund's standard practices and
policies were at the time, and based on that, counsel is free to present the theory that those
policies were followed during the time in question. Opposing counsel is free to point out that
standard procedures may not always be followed and may be modified, and that Redmond
has no knowledge as to whether those procedures were in fact followed in this case.
Nor can Redmond testify as an expert witness, a hybrid fact/expert witness, or render
a lay opinion on those specific issues. He was not designated as an expert witness under
Federal Rule of Civil Procedure ("FRCP") 26(a)(2)(B). He was designated as a hybrid

3

Redmond's deposition testimony has been videotaped and is expected to be played at trial.
-5-

fact/expert witness pursuant to FRCP 26(a)(2)(C), but he still cannot offer an expert opinion
based on facts beyond his personal knowledge. His expert opinion under FRCP 26(a)(2)(C)
must be based on facts within his personal knowledge. The typical scenario of a hybrid
fact/expert witness under that rule is a treating physician who has personal knowledge of the
facts, testifies to same, and based on those facts, renders an expert opinion. That is not the
situation in this matter. Redmond's testimony on those propositions likewise does not fit
within FRE 701.
Due to how much time has passed since these policies were issued, there are no
witnesses who were personally involved with negotiating or writing the policies. As a result,
both sides will attempt to offer circumstantial evidence and testimony regarding the usual
practices at that time in order to support their positions on the existence of aggregate limits.
They may also present traditional expert testimony on these issues pursuant to FRE 702 and
703
Accordingly, plaintiff's motion to preclude Redmond's testimony will be granted to the
extent he will be prohibited from testifying that Utica did in fact make misrepresentations to
Fireman's Fund in obtaining the reinsurance policies and that the primary policies in question
did in fact lack aggregate limits. His testimony on other grounds will be admitted subject to
the laying of a proper foundation and resolution of the pending objections to his deposition
designations.
B. Defendant Fireman's Fund's Motion to Preclude
Fireman's Fund moves to preclude the following five pieces of evidence: (1) plaintiff's
constructive notice argument; (2) evidence of other Utica legal decisions and/or settlements
regarding the Goulds loss; (3) evidence of its own settlements and litigation with third parties;
-6-

(4) reference to Brian Gagan's expert testimony; and (5) Andrew Maneval's late notice
testimony.
1. Constructive notice
Fireman's Fund argues that Utica should be precluded from making the argument that
because Fireman's Fund was a direct insurer of Goulds under other policies, it had
constructive notice of Utica's reinsurance claims prior to 2008.
While the law in New York requires actual notice and not constructive notice, any facts
showing that Fireman's Fund had prior knowledge of the Goulds loss are relevant to
Fireman's Fund's claimed prejudice (caused by Utica's late notice).
Therefore, Fireman's Fund's motion to preclude this evidence will be denied, and the
parties are reminded that the jury will be instructed on the proper legal standard for notice.
2. Other Utica disputes
Fireman's Fund argues that Utica should be precluded from introducing judicial
decisions involving other insurer's challenges to Utica's aggregate limit position.
Matters such as Goulds Pumps, Inc. v. Travelers Casualty and Surety Co., No.
B255439, 2016 WL 3564244 (Cal. Ct. App. June 22, 2016) (unpublished decision) and Utica
Mutual Insurance Co. v. Clearwater Insurance Co., No. 613-CV-1178, 2016 W L 254770,
(N.D.N.Y. Jan. 20, 2016) (Sharpe, S.J.) are irrelevant in this matter. As explained in the
February 2017 Memorandum-Decision and Order, those cases involve different years of
coverage, with different policies, between different parties, and no extrinsic evidence was
offered. That another court agreed or disagreed with Utica's aggregate limit position in a
factually distinct matter does not dictate whether Fireman's Fund is obligated to, pursuant to

-7-

the follow the fortunes doctrine, pay in this case. Disputes between Utica and other
reinsurers are irrelevant and inadmissible.
Accordingly, Fireman's Fund's motion to preclude evidence of other Utica disputes will
be granted.
3. Fireman's Fund's litigation with other parties
Fireman's Fund moves to preclude evidence of its own settlements and litigation with
third parties. For example, Fireman's Fund has a dispute with one of its own reinsurers.
Fireman's Fund put Utica's proof of loss at issue by arguing that the proof of loss Utica
tendered was insufficient to pay. However, what Fireman's Fund deemed sufficient proof of
loss in a wholly unrelated matter, under what can only be assumed to be different policies,
coverage, and terms, is irrelevant to what constituted adequate proof of loss under the
certificates in this case.
For these reasons, Fireman's Fund's motion to preclude this evidence will be granted
4. Brian E. Gagan
Fireman's Fund moves to preclude evidence of testimony in another matter by Brian
E. Gagan ("Gagan"). Gagan is a former insurance executive who offered expert testimony in
two California cases. Gagan was retained by Fireman's Fund in those matters and at a
certain time, rendered an opinion now unfavorable to Fireman's Fund. Gagan is not a
designated expert in this case, but Utica seeks to allow its own expert Dennis Connolly
("Connolly"), to refer to the Gagan excerpts to bolster its Connolly's present opinion.
While it may be somewhat prejudicial to introduce this evidence, Gagan's opinion will
be admissible as an admission of a party opponent if Utica can satisfy the requirements of

-8-

FRE 801(d)(2). Gagan is not testifying himself, he was retained by Fireman's Fund and his
opinion will be admitted for the limited purpose of Connolly's opinion.
Therefore, Fireman's Fund's motion to preclude Connolly's reliance on or reference to
Gagan's testimony is denied.
5. Andrew Maneval
Fireman's Fund moves to preclude Utica's expert Andrew Maneval ("Maneval") on the
basis that he is not permitted to render an opinion on a legal standard and further, that the
standard he articulates is wrong. Maneval is designated as an insurance expert to provide
his opinion regarding when Utica was obligated to provide notice to Fireman's Fund of the
Goulds loss. Maneval will opine that pursuant to the applicable notice provision in the
certificates, a ceding insurer (Utica) must make a subjective determination when it appears
likely that there will be a loss involving the reinsurance.
Interpreting the notice provision in a contract is a task reserved for the court. Further,
as laid out in Christiania General Insurance Corp. of N.Y. v. Great American Insurance Co.,
979 F.2d 268, 274 (2d Cir. 1992), the determ ination of when notice is due requires an
objective assessment of when there is a reasonable possibility that the reinsurance will be
involved. However, information known to Utica is relevant to when a reasonably diligent
insurance company in Utica's position would have thought itself required to provide notice to
Fireman's Fund under the certificates.
Accordingly, Fireman's Fund's motion to preclude Maneval's testimony will be denied.
C. Plaintiff Utica's Motion to Preclude
Utica moves in limine to preclude the following fourteen pieces of evidence/testimony:
(1) any of Utica's disputes with other reinsurers; (2) notice to other reinsurers; (3) settlement
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negotiations between Goulds and Utica after 2005; (4) speculation on Utica's relationship
with its California counsel, Berkes Crane Robinson & Seal LLP; (5) Utica's f ee dispute with
that counsel; (6) Utica's post-settlement disputes with Goulds; (7) underwriting files produced
by the broker from this case; (8) a 1960s unsigned letter to Fireman's Fund; (9) the content of
commutation agreements which Fireman's Fund has not produced in this case; (10) Rahul
Mehta's testimony that is not based on personal knowledge; (11) Robert Hall's testimony on
ultimate issues, legal matters, and speculation; (12) John Griffin's irrelevant testimony; (13)
characterization of Utica's position during mediation as a lie; and (14) mention of Utica's
(deep pocket) affiliates.
1. Other Utica disputes
Utica moves to preclude evidence regarding its own disputes with other reinsurers.
Utica contends this includes reliance by Fireman's Fund's expert Robert Hall ("Hall") on such
disputes. Fireman's Fund does not opposite this request, as this is essentially the same
argument that it made in its motion in limine. For the reasons previously explained, Utica's
disputes with other reinsurers under different facts are irrelevant and inadmissible.
Therefore, Utica's motion to preclude evidence of other disputes will be granted.
2. Notice given to other reinsurers
Utica moves to preclude evidence of when other reinsurers received notice.
It is generally true that when other reinsurers received notice has no bearing on when
notice was due to Fireman's Fund because different reinsurers have different contracts with
different notice provisions and participate on different years and/or different levels of
coverage. However, Fireman's Fund contends that Utica did not give notice to other
reinsurers at different times based on different coverage and instead provided notice to all
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reinsurers in 2001 (except for General Reinsurance Corporation which received notice years
earlier). Further, information known to Utica and relayed to other reinsurers regarding the
Goulds loss is relevant as to when a reasonably diligent insurance company would have
thought itself required to provide notice to Fireman's Fund under the certificates.
Accordingly, Utica's motion to preclude evidence of notice to other reinsurers will be
denied subject to Fireman's Fund establishing that Utica did in fact provide blanket notice of
the Goulds loss to all reinsurers other than Fireman's Fund and General Reinsurance
Corporation.
3. Utica-Goulds settlement negotiations post-2005
Utica seeks to preclude the introduction of settlement drafts and exchanges between
Utica and Goulds from January 2006 forward on the basis that it reached an agreement with
Goulds on the aggregate products limits in the primary policies at issue by December 14,
2005. Pursuant to the follow the settlement doctrine, Utica argues that anything after that
date is inadmissible because the only issue is whether Utica acted reasonably on that date
when it settled on the basis that the primary policies had aggregate limits.
Fireman's Fund has offered evidence to dispute Utica's assertion that the issue was
actually settled in 2005 and instead contends that the term s continued to be negotiated
through the date the Settlement Agreement was finalized in February 2007. Because the
issue of whether Utica acted reasonably in its settlement with Goulds is key to Fireman's
Fund's obligation under the follow the settlement doctrine, the full spectrum of negotiations
will be admissible.
For this reason, Utica's motion to preclude negotiations after December 14, 2005 will
be denied.
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4. Berkes Crane Robinson & Seal LLP
Utica plans to call Ronald Robinson, Esq. ("Attorney Robinson") of Berkes Crane
Robinson & Seal LLP. That law firm was Utica's California counsel in the coverage litigation.
Utica however moves to preclude evidence of any dispute it had with that law firm. The
parties disagree as to the reason Utica parted ways with the law firm and Fireman's Fund
contends the reason is relevant to the aggregate limits dispute.
Fireman's Fund is free to cross-examine Attorney Robinson as to his opinion on
Utica's aggregate limits position but evidence regarding the reasons Utica parted ways with
the law firm will not be permitted.
Accordingly, Utica's motion to preclude evidence of this nature will be granted.
5. Fee dispute
Utica moves to preclude Fireman's Fund from introducing evidence of a fee dispute
between Utica and Berkes Crane Robinson & Seal LLP.
The dispute in this case primarily relates to the reasonableness of Utica's actions in
negotiating the Settlement Agreement, and any fee dispute with its lawyer in the underlying
coverage action has no bearing on the instant issues. It is irrelevant and could be highly
prejudicial to Utica.
Therefore, Utica's motion to preclude evidence of a fee dispute will be granted.
6. Utica-Goulds post-Settlement Agreement disputes
Utica moves to preclude Fireman's Fund from offering evidence of disputes between
Utica and Goulds after the February 2007 Settlement Agreement was memorialized.
Fireman's Fund argues evidence of errors in the Settlement Agreement and post-settlement
disputes are relevant to the prejudice it suffered as a result of Utica's late notice.
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Fireman's Fund's issue to date with the Settlement Agreement has focused on Utica's
assertion that the primary policies contained aggregate limits and its alleged insistence that
Goulds stipulate to the same. Discovery did not include the claim that had Fireman's Fund
received earlier notice and participated in the Utica-Goulds settlement negotiations, they
could have prevented errors in the Settlement Agreement and avoided subsequent disputes.
Therefore, evidence of those disputes is irrelevant.
For this reason, Utica's motion to preclude post-Settlement Agreement disputes will be
granted.
7. Broker's underwriting files
Utica moves to preclude admission of the Herbert Clough, Inc. ("Clough") underwriting
files. It argues they cannot be properly authenticated and are hearsay. During the time at
issue, Clough served as Utica's agent in placing its reinsurance with Fireman's Fund.
The files will be admissible at trial subject to the laying of a proper foundation and
Fireman's Fund establishing that they fit within a hearsay exception, such as the exception
for ancient documents under FRE 803(16).
Accordingly, Utica's motion to preclude the broker's underwriting files will be denied.
8. Unsigned letter
Utica moves to preclude Fireman's Fund from introducing a letter from Clough to
Fireman's Fund, dated April 8, 1968. Fireman's Fund intends to introduce the letter to
support its counterclaims (for rescission) that Utica misrepresented whether the primary
policies had aggregate limits. Utica contends the letter is part of the allegedly inadmissible
Clough broker files just discussed and further that it is unsigned and there is no evidence it
was ever sent.
- 13 -

Utica's arguments go to the letter's weight and credibility, not its admissibility. The
letter will be admissible subject to the laying of a proper foundation and Fireman's Fund
establishing that the letter fits within a hearsay exception.
Therefore, Utica's motion to preclude introduction of the letter will be denied.
9. Unproduced commutation agreements
Utica seeks to preclude Fireman's Fund from introducing four commutation
agreements which it did not produce in discovery. Fireman's Fund contends it did not receive
consent from those four retrocessionaires and was thus unable to produce the agreements.
The best evidence rule, FRE 1002, provides that an original writing is required in order
to prove its content. None of the exceptions delineated in FRE 1004 apply. While Fireman's
Fund argues that the only relevant fact in the four unproduced agreements is the actual
commutation price of each (which can allegedly be established by ample, reliable secondary
evidence), it would violate the best evidence rule to permit something other than the original
documents to establish that information, and further, it would be unfair to Utica to permit the
introduction of the prices without an opportunity to review the underlying documents which
gave rise to those prices.
For this reason, Utica's motion to preclude these four commutation agreements will be
granted.
10. Rahul Mehta
Utica moves to preclude testimony by Fireman's Fund former employee Rahul Mehta
("Mehta"). Mehta is designated as a hybrid fact/expert witness pursuant to FRCP
26(a)(2)(C). He is expected to testify regarding the prejudice Fireman's Fund suffered

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through its lost commutations as a result of Utica's late notice. Mehta became involved with
Fireman's Fund's commutations in 2000.
Like Redmond, Mehta cannot offer an expert opinion based on facts beyond his
personal knowledge. His expert opinion under FRCP 26(a)(2)(C) must be based on facts
within his personal knowledge. He may testify as a hybrid fact/expert witness as to the
commutations he was personally involved in from 2000 on, and may opine on Fireman's
Fund's lost commutations and resulting prejudice for those years in which he has personal
knowledge. He may testify based on his employment and experience as to Fireman's Fund's
standard practices and policies regarding commutations. However, he cannot testify as an
expert as to commutations he was not personally involved in because he is designated as a
hybrid witness. Based on all of his testimony, counsel is free to present the theory that those
standard practices were followed during the time in question and as to the commutation
agreements in question. Opposing counsel is free to argue that it is unknown whether those
practices were followed because Mehta lacks personal knowledge about commutation
agreements with which he was not involved.
Accordingly, Utica's motion will be granted to the extent that Mehta will be precluded
from rendering an expert opinion as to commutations occurring before 2000.
11. Robert Hall
Utica moves to preclude Fireman's Fund expert Hall from opining that Utica violated its
obligation of utmost good faith when it allocated the Goulds loss (in the Settlement
Agreement). Utica also seeks to prevent Hall from testifying that Utica provided late notice to
Fireman's Fund under the certificates' terms and violated its duty of utmost good faith in
doing so. Utica argues these are ultimate issues properly reserved for the jury.
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Under FRE 704, an opinion is not objectionable just because it em braces an ultimate
issue. The basic approach to opinions, lay and expert, is to admit them when helpful to the
trier of fact. To the extent that a proper foundation is laid and Hall is qualified as an expert,
his expert opinions on these issues will be admissible, subject to the usual guidelines of
expert testimony; he will not be permitted to testify as to legal matters or based on
speculation.
Therefore, Utica's motion to preclude Hall's testimony on ultimate issues will be
denied.
12. John Griffin
Utica moves to preclude testimony by Fireman's Fund witness John Griffin ("Griffin").
Griffin was previously Utica's Head of Underwriting. Fireman's Fund intends to introduce
evidence demonstrating that Utica's standard policies and practices—that is, that aggregate
limits were always written in—were not followed during the time period in question.
Just as Utica will be permitted to introduce evidence that it was standard policy and
practice both at Utica and industry wide to include aggregate limits for bodily injury claims,
Fireman's Fund will be permitted to attempt to discredit that assertion by questioning Griffin
on what he testified were errors made by Utica.
For this reason, Utica's motion to preclude Griffin's testimony will be denied.
13. Characterization of Utica's position to the mediators as a lie
Utica seeks to prevent Fireman's Fund from introducing evidence which would
characterize Utica's aggregate limit position to mediators as a lie. Utica contends its counsel
repeatedly advised that there was no viable dispute as to the existence of aggregate limits in

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the primary policies and thus there can be no argument that its position was a lie or
misrepresentation.
Part of Fireman's Fund's argument that Utica violated its duty of utmost good faith
pursuant to the certificates is its allegation that Utica made misrepresentations, regarding the
aggregate limits, to mediators and judges during the Utica-Goulds settlement negotiations.
Simply because Utica's California coverage counsel echoed Utica's position on aggregate
limits does not mean Fireman's Fund cannot challenge that position as knowingly unfounded
or baseless, or in other words, a misrepresentation. However, the characterization of that
position as a "lie" would have an inflammatory effect and would be more prejudicial than
probative.
Accordingly, evidence of this nature will be permitted and thus the motion partially
granted, only as to the characterization of that conduct as a lie.
14. "David and Goliath"
Utica seeks to preclude Fireman's Fund from casting this suit as a "David and Goliath"
dispute against a large and wealthy corporation based on Utica's affiliation with Berkshire
Hathaway and Warren Buffet. Fireman's Fund has advised it has no intention to do so.
Therefore, Utica's motion to preclude evidence as to its relationship with Berkshire
Hathaway and Warren Buffet will be granted, and all reference to same will be prohibited
including during jury selection.
V. CONCLUSION
Therefore, it is
ORDERED that

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1. Plaintiff Utica Mutual Insurance Company's motion in limine to preclude certain
expert testimony by Garrett Redmond (ECF No. 364) is GRANTED;
2. Defendant Fireman's Fund Insurance Company's omnibus motion in limine to
preclude five specific matters (ECF No. 383) is GRANTED in part and DENIED in part as
follows:
1.

Motion to preclude Utica Mutual Insurance Company's constructive notice argument is
DENIED;

2.

Motion to preclude other Utica Mutual Insurance Company legal decisions and/or
settlements regarding the Goulds Pumps Inc. loss is GRANTED;

3.

Motion to preclude Fireman's Fund Insurance Company's own settlements and
litigation with third parties is GRANTED;

4.

Motion to preclude reference to Brian Gagan's expert testimony is DENIED;

5.

Motion to preclude Andrew Maneval's late notice testimony is DENIED; and
3. Plaintiff Utica Mutual Insurance Company's omnibus motion in limine to preclude

fourteen specific matters (ECF No. 384) is GRANTED in part and DENIED in part as follows:
1.

Motion to preclude Utica Mutual Insurance Company's disputes with other reinsurers
is GRANTED;

2.

Motion to preclude notice to other reinsurers is DENIED;

3.

Motion to preclude evidence of settlement negotiations between Goulds Pumps Inc.
and Utica Mutual Insurance Company after 2005 is DENIED;

4.

Motion to preclude speculation on Utica Mutual Insurance Com pany's relationship with
Berkes Crane Robinson & Seal LLP is GRANTED;

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5.

Motion to preclude evidence of Utica Mutual Insurance Company's fee dispute with
Berkes Crane Robinson & Seal LLP is GRANTED;

6.

Motion to preclude Utica Mutual Insurance Company's post-settlement disputes with
Goulds Pumps Inc. is GRANTED;

7.

Motion to preclude the underwriting files produced by the broker in this case is
DENIED;

8.

Motion to preclude a 1960s unsigned letter to Fireman's Fund Insurance Company is
DENIED;

9.

Motion to preclude the content of four commutation agreements which Fireman's Fund
Insurance Company has not produced in this case is GRANTED;

10.

Motion to preclude Rahul Mehta's testimony that is not based on personal knowledge
is GRANTED;

11.

Motion to preclude Robert Hall's testimony on ultimate issues is DENIED;

12.

Motion to preclude John Griffin's allegedly irrelevant testimony is DENIED;

13.

Motion to preclude the characterization of Utica Mutual Insurance Company's position
during mediation as a lie is partially GRANTED; and

14.

Motion to preclude mention of Utica Mutual Insurance Company's affiliates is
GRANTED.
IT IS SO ORDERED.

Dated: November 16, 2017
Utica, New York.
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