Utica Mutual Insurance Company v. Century Indemnity Company

Filing 621

ORDER ON MOTIONS IN LIMINE: granting in part and denying in part 564 Motion in Limine; granting 592 Letter Request; granting 549 Motion in Limine; granting 550 Motion in Limine; granting 551 Motion in Limine; denying without prejudice to renew Utica Mutual's 552 Motion in Limine; denying without prejudice to renew Utica Mutual's 553 Motion in Limine; granting 554 Motion in Limine; denying without prejudice to renew 555 Motion in Limine; denying without prejudice to renew 556 Motion in Limine; and denying without prejudice to renew 557 Motion in Limine. Signed by Judge David N. Hurd on 9/13/2019. (see)

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

6:13-CV-995

CENTURY INDEMNITY COMPANY,
as Successor to CCI Insurance Company,
as Successor to Insurance Company of
North America,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

HUNTON ANDREWS KURTH LLP
Attorneys for Plaintiff
2200 Pennsylvania Avenue, NW
Washington, DC 20037

SYED S. AHMAD, ESQ.
LATOSHA M. ELLIS, ESQ.
PATRICK M. MCDERMOTT, ESQ.
WALTER J. ANDREWS, ESQ.

O'MELVENY, MYERS LAW FIRM
Attorneys for Defendant
7 Times Square
Times Square Tower
New York, NY 10036

BRAD M. ELIAS, ESQ.
NATHANAEL T. EVERHART, ESQ.
TANCRED V. SCHIAVONI, ESQ.
VINCENT S. WEISBAND, ESQ.
REDWAN SALEH, ESQ.

E STEWART JONES HACKER MURPHY, LLP
Attorneys for Defendant
28 Second Street
Troy, NY 12180

JAMES E. HACKER, ESQ.

DAVID N. HURD
United States District Judge

ORDER ON MOTIONS IN LIMINE
A jury trial in this matter is scheduled to begin on Monday, September 16, 2019 at
9:30 a.m. in Utica, New York. The parties have moved in limine seeking rulings on the
admissibility of certain matters. Dkt. Nos. 549-57, 564, 592, 594-96. T hose motions have
been fully briefed. Dkt. Nos. 573-92, 603, 606-08.
The standard governing a motion in limine is set forth in detail in this Court's recent
opinion in Walker v. Schult, 365 F. Supp. 3d 266, 274-75 (N.D.N.Y. 2019) and will not be
repeated here. Briefly stated, however, "[e]vidence should be excluded on a motion in limine
only when the evidence is clearly inadmissible on all potential grounds." Id. (citation
omitted). Accordingly, "[t]he trial judge may reserve judgment on a motion in limine until trial
to ensure the motion is considered in the proper factual context." Id.
Upon review, Century's ninth, eleventh, and twelfth motions in limine will be granted
because Utica Mutual has not opposed those requests. However, upon review of the parties'
other filings in light of the governing standard set forth in Walker, several of these motions
must be denied without prejudice to renew at an appropriate time during the course of the
trial.
Therefore, it is
ORDERED that
1. Century's omnibus motion in limine (Dkt. No. 564) is GRANTED in part and
DENIED in part;
2. Century's first motion in limine to preclude decisions from other actions is
GRANTED;

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3. Century's second motion in limine to preclude mediators' findings from the
California Case of Cannon Electric v. Affiliated FM Ins. Co. is GRANTED;
4. Century's third motion in limine to preclude Utica from offering extrinsic evidence of
an unambiguous legal contract is DENIED without prejudice to renew;
5. Century's fourth motion in limine to preclude Utica from offering testimony on
issues on which it claimed privilege throughout discovery is GRANTED;
6. Century's fifth motion in limine to preclude Utica's lawyer fact witnesses from
offering opinion testimony or legal opinions is DENIED without prejudice to renew;
7. Century's sixth motion in limine to preclude Utica from calling undisclosed lawyer
expert witness Stefanie Walterick is DENIED without prejudice to renew;
8. Century's seventh motion in limine to preclude certain testimony of lawyer-expert
Andrew Maneval is DENIED without prejudice to renew;
9. Century's eighth motion in limine to preclude cumulative expert testimony is
DENIED without prejudice to renew;
10. Century's ninth motion in limine to preclude Utica from offering undisclosed expert
opinions is GRANTED;
11. Century's tenth motion in limine to preclude Utica from offering testimony about
treaty reinsurance that it withheld from discovery is GRANTED;
12. Century's eleventh motion in limine to preclude evidence of financial hardship is
GRANTED;
13. Century's twelfth motion in limine to preclude evidence of charitable giving is
GRANTED;

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14. Century's thirteenth motion in limine to preclude Utica from offering into evidence
designated portions of depositions taken in the California Case of Cannon Electric v.
Affiliated FM Insurance Co. is GRANTED;
15. Century's motion (Dkt. No. 592) to preclude evidence of litigation reserves is
GRANTED;
16. Utica Mutual's (Dkt. No. 549) motion in limine No. 1 to preclude certain evidence
of disputes with other reinsurers is GRANTED;
17. Utica Mutual's (Dkt. No. 550) motion in limine No. 2 to preclude certain evidence
of other insurers' interpretations is GRANTED;
18. Utica Mutual's (Dkt. No. 551) motion in limine No. 3 to preclude certain references
to NICO, Berkshire Hathaway, and Warren Buffet is GRANTED;
19. Utica Mutual's (Dkt. No. 552) motion in limine No. 4 to preclude Bernd Heinze
from testifying about certain legal issues is DENIED without prejudice to renew;
20. Utica Mutual's (Dkt. No. 553) motion in limine No. 5 to preclude evidence about
alleged conditions precedent to the 1975 contract is DENIED without prejudice to renew;
21. Utica Mutual's (Dkt. No. 554) motion in limine No. 6 to preclude evidence about
R&Q's alleged responsibility for the 1975 agreement is GRANTED;
22. Utica Mutual's (Dkt. No. 555) motion in limine No. 7 to preclude evidence about
whether Utica needed to obtain consent to the def ense endorsement is DENIED without
prejudice to renew;
23. Utica Mutual's (Dkt. No. 556) motion in limine No. 8 to preclude Century from
using the phrase "two sets of books" is DENIED without prejudice to renew; and

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24. Utica Mutual's (Dkt. No. 557) motion in limine No. 9 to preclude evidence about
the alleged lack of certain aggregate limits is DENIED without prejudice to renew.
IT IS SO ORDERED.

Dated: September 13, 2019
Utica, New York.

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