Nickerson et al v. State Farm Insurance Company

Filing 76

Memorandum Opinion And Order Ruling On Motions In Limine, Granting 50 Motion in Limine; Deferring ruling on 28 Motion in Limine And Denying 34 Motion in Limine. Parties are DIRECTED to submit proposed verdict forms with the Court so that the jury may delineate the amount, if any, of possible damages to be considered in this case and which may be attributable to medical bills. Signed by Senior Judge Frederick P. Stamp, Jr on 10/31/11. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PATRICIA A. NICKERSON and
RUSSELL E. NICKERSON,
Plaintiffs,
v.

Civil Action No. 5:10CV105
(STAMP)

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
RULING ON MOTIONS IN LIMINE
On October 17, 2011, this Court held a pretrial conference in
the above-styled civil case.

At this pretrial conference, this

Court ruled on seven motions in limine.

However, the court

deferred ruling on the plaintiffs’ first motion in limine pending
further consideration, and also deferred ruling on the defendant’s
motion in limine pending further briefing by the parties.

The

Court also granted leave for the plaintiffs to file an additional
motion in limine, which the plaintiffs did file on October 18,
2011.
The defendant did not file a response to the plaintiffs’
October 18, 2011 motion in limine, and as such, this motion in
limine (ECF No. 50) is hereby granted without opposition. Further,
this Court finds it appropriate to defer ruling on the plaintiffs’
first motion in limine (ECF No. 28) because, based upon the filings
of the parties, this Court has been unable to discern at this time
the relevance and/or admissibility of the photographs and documents

subject to the motion, nor has this Court been able to discern
whether a witness has been named who will testify as to their
relevance and/or admissibility.
However, after further consideration of the relevant law, the
defendant’s motion in limine (ECF No. 34) must be denied.

This

motion in limine by the defendant seeks to preclude evidence of
Mrs. Nickerson’s medical bills which have been previously paid by
the medical payments coverage contained in her State Farm Mutual
Automobile Insurance Company (“State Farm”) policy.

The basis for

this motion is the language of the underinsured motorist coverage
in the policy, which states that the amount of damages paid under
the underinsured motorist coverage will be reduced by “any damages
that have already been paid or that are payable as expenses under
Medical Payments Coverage [MPC] of this policy . . .”

The

plaintiffs claim that this policy provision is unenforceable under
West Virginia Code § 33-6-31(b).
The

West

Virginia

Supreme

Court

has

found

that

policy

interpretation must begin by inquiring as to whether the terms of
an insurance policy are in accord with the “language, purpose and
intent of the applicable statute.”

Adkins v. Meador, 201 W. Va.

148, 153 (1997). West Virginia Code § 33-6-31(b) provides that “No
sums payable as a result of underinsured motorists’ coverage shall
be reduced by payments made under the insured’s policy or any other
policy.”

After reviewing this language along with West Virginia

case law, this Court finds that the language reducing damages under

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underinsured motorist coverage by the amount already paid by MPC is
not in accord with West Virginia Code § 33-6-31(b) or the public
policy behind it, and thus must deny the defendant’s motion in
limine on the grounds that the policy term supporting it is
unenforceable.
The defendant claims that the policy provision in question
does not affect the amount of coverage available to the plaintiffs,
so the provision is not proscribed by § 33-6-31.
Court cannot agree with this argument.

However, this

The West Virginia Supreme

Court has consistently articulated as strong public policy in
underinsured motorist coverage cases that all damages not paid by
the underinsured motorist be fully and completely compensated up to
the limits of the injured party’s underinsured motorist coverage.
State Auto Mut. Ins. Co. v. Youler, 183 W. Va. 556, 564 (1990).
Additionally, the exact language contained in the Nickersons’ State
Farm policy has been struck down by West Virginia courts on
multiple occasions as against the language and the spirit of
§ 33-6-31. In Berry v. Ramsey, Civil Action No. 10-C-455 (Cir. Ct.
Berkeley Cty. Oct. 19, 2011), the West Virginia Circuit Court of
Berkeley County found that State Farm’s policy language which
lowered the recovery payable from underinsured motorist coverage by
the amount of medical payments made under MPC was unenforceable as
“untenable under the current state of West Virginia law.”

Id. at

*2. Further, in Schatken v. State Farm Mutual Automobile Ins. Co.,
Civil Action No. 10-C-367 (Cir. Ct. Jefferson Cty. Feb. 3, 2011),

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the Circuit Court of Jefferson County found that the exact policy
language at issue in the Nickersons’ policy was unenforceable,
“pursuant to the clear and unambiguous language of the statute,
[as] underinsured motorist coverage cannot be reduced by any other
insurance including, but not limited to, an insured’s own medical
payments coverage.”

Id. at *8.

This Court agrees with the circuit courts cited above in
finding that the language of § 33-6-31, especially when coupled
with the above-described public policy consistently articulated by
the West Virginia Supreme Court of Appeals, mandates that any
reduction of underinsured motorist payments based upon previous
payment from MPC is against West Virginia law.

Therefore, this

Court must deny the defendant’s motion in limine, which is based
upon an attempt to do just that.
Accordingly, the plaintiffs’ motion in limine to exclude
evidence, testimony or argument regarding the severity of the
accident or its ability to cause the plaintiffs’ injuries (ECF No.
50) is GRANTED without opposition and the defendant’s motion in
limine (ECF No. 34) is hereby DENIED.

With respect to this issue,

however, the parties are DIRECTED to submit proposed verdict forms
with the Court so that the jury may delineate the amount, if any,
of possible damages to be considered in this case and which may be
attributable to medical bills.

Finally, this Court defers ruling

on plaintiffs’ first motion in limine (ECF No. 28) until such time
as it can be determined whether the photographs and documents

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subject to that motion are relevant and admissible. As such, until
this Court has had the opportunity to fully consider this issue,
the parties are DIRECTED to refrain from making reference to any of
the photographs and/or documents subject to the plaintiffs’ first
motion in limine during the trial for this case.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit copies of this order to
counsel of record herein.
DATED:

October 31, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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