Kelly v. Provident Life and Accident Insurance Company et al

Filing 238

ORDER: The Court denied 202 Motion in Limine Regarding Miscellaneous Evidentiary Issues at the pretrial conference on April 25, 2011, and granted the Defendants' 214 Motion to Dismiss Counterclaim (Doc. 214), but deferred ruling on wh ether to allow evidence of the effect asserting and withdrawing the Counterclaim had on the Plaintiff. Upon consideration of the pleadings and arguments of counsel, the Court will allow testimony from Plaintiff that the counterclaim was brought and w hether or not it affected her emotionally or physically. If requested, the Court would consider instructing the jury to the effect that they are to disregard and not consider the fact that the counterclaim is no longer part of the case. Signed by Senior Judge J. Garvan Murtha on 5/5/2011. (wjf)

UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
CAMILLA KELLY, D.O.,

:
:
Plaintiff,
:
:
v.
:
:
PROVIDENT LIFE AND
:
ACCIDENT INSURANCE
:
COMPANY and UNUM GROUP
:
:
Defendants.
:
_____________________________________ :

File No. 1:09-cv–70-jgm

MEMORANDUM AND ORDER ON ISSUE TWO OF DEFENDANTS’ MOTION
IN LIMINE REGARDING MISCELLANEOUS EVIDENTIARY ISSUES
(Docs. 202, 214)
Defendants moved in limine to preclude from admission into evidence or mention at trial
that Defendants asserted and subsequently withdrew a counterclaim for restitution of benefits.
See Doc. 202 at 4-7. The Court denied the motion at the pretrial conference on April 25, 2011, and
granted the Defendants’ Motion to Dismiss Counterclaim (Doc. 214), but deferred ruling on
whether to allow evidence of the effect asserting and withdrawing the Counterclaim had on the
Plaintiff. See Minute Entry, ECF No. 225.
Upon consideration of the pleadings and arguments of counsel, the Court will allow
testimony from Plaintiff that the counterclaim was brought and whether or not it affected her
emotionally or physically.
As stated in a prior ruling by the Court concerning Defendants’ motion to amend their
answer to add a counterclaim:
Kelly also contends the motion is made in bad faith. She notes insurance
companies have an independent and continuing duty of good faith and fair dealing
requiring a “reasonably thorough investigation of relevant facts” and objective
evaluation of those facts in light of the insured’s interest. (Paper 40 at 2-3.) Kelly
insinuates Defendants’ decision to seek reimbursement is intended “to gain leverage

over [her] lawsuit,” and is therefore made in bad faith. Id. at 4. Again, Kelly makes
no particularized evidentiary showing. In these circumstances, the Court should
refuse to exercise its discretion to deny Defendants leave to amend their answer.
(Doc. 59 at 3.)
Therefore, the reasons for the counterclaim, filed in December 2009, and its subsequent
withdrawal are irrelevant to the central issue in this case, which is whether the Defendants acted
unreasonably when they terminated Plaintiff’s benefits in 2007. Furthermore, even if relevant, the
probative value of discussion of the reasoning for the counterclaim and dismissal by the Court “is
substantially outweighed by the danger of prejudice, confusion of the issues, or misleading the jury,
or . . . waste of time.” Fed. R. Evid. 403.
If requested, the Court would consider instructing the jury to the effect that they are to
disregard and not consider the fact that the counterclaim is no longer part of the case.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 5th day of May, 2011.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
Senior United States District Judge

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