In an Order that comes with its own Table of Contents, a Federal Judge in Iowa reached two decisions of significance. First, the Court applied the Federal Rules of Evidence and concluded that a witness who testifies "regarding the information contained" in a Policyholder's Business Interruption Claim "submissions" is a "percipient fact witness" and therefore does not need to be disclosed as an Expert Expected to Testify at Trial. Penford Corp. v. National Union Fire Insurance Co., Download Penford Corp. v. National Union Fire Insurance Co. (N.D. Iowa Case No. 09.13, Opinion Filed June 17, 2010) also published as 2010 WL 2509985 *1 (N.D. Iowa June 17, 2010)(Westlaw subscription required to access Westlaw). (Unsure what a "percipient fact witness" might be, exactly? Apparently it is a fact witness who perceives information about which she or he can testify without being an Expert Witness under the Federal Rules.)
Second, the Federal Judge applied Iowa substantive law in this Bad Faith case to hold that Expert Witnesses would be allowed to offer Opinion Testimony about Bad Faith not only "with regard to coverage, but also with respect to the timing of Defendants' payments on amounts undisputedly due under the policy." Penford Corporation, 2010 WL 2509985 at *3-*4. See generally Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" ยงยง 9:25 and 9:26, "Insurer's Payment of Undisputed Covered Amounts" (Shepard's/McGraw-Hill First Edition; West Publishing Company Second Edition and 2010 Supplement).
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