In a change-of-pace, Insurance Claims and Bad Faith Law Blog and Insurance Claims and Issues Weblog will carry consecutive posts addressing a single common theme: Court rulings on Expert Witness Testimony and Reports in recent Insurance Cases. For the previously developed rules of law and judicial decisions on these issues, see generally as to Liability Insurance Cases, volume 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 8:17 (West Publishing 3d ed. 2011; 2012 Supplement in process), and see generally as to all types of First-Party Insurance Cases, volume 2 id. § 12:18.
Expert Witnesses Generally Cannot Testify to Legal Conclusions Which Are Reserved For The Court.
For this reason, that an Expert Witness ordinarily cannot testify to legal conclusions which are reserved for the Court, a Title Insurance Lawyer was not allowed to testify to legal conclusions in Fidelity National Title Insurance Co. v. Doubletree Partners, L.P., 2011 WL 4715174 *8 (E.D. Tex. October 5, 2011)(Mazzant, USMJ)(striking portions of Expert Report and of Expert's Affidavit accordingly), Download Fidelity Natl Title Ins Co v. Doubletree Ptrs, LP (E.D. Tex. Case No. 4.08CV00243, Memorandum Opinion and Order Filed Oct. 5, 2011) PUBLIC ACCESS. "Experts cannot offer testimony regarding what law governs a dispute or what the applicable law means, because that is a function of the Court." Id. at *7. Parenthetically, the Online Docket of this case reflects that Final Judgment was entered for the Defendant on November 10, 2011.
Lawyers have been proferred as Expert Witnesses by Policyholders in some cases, and in some cases by Insurance Companies, and in some cases both by Policyholders and by Insurance Companies which was the case in Tadehara v. State Farm Mutual Auto. Insurance Co., 2011 WL 4048782 *6 & n.7 (D. Colo. September 12, 2011)(competing Lawyer-Experts on reasonableness of Insurance Company's conduct under Colorado First-Party Undue Payment Delay Statute; case of first impression), Download Tadehara v. State Farm Mut. Auto. Ins. Co. (D. Colo. No. 09.cv.02893, OpinIon and Order Filed Sept. 12, 2011) PUBLIC ACCESS. Without determining admissibility, the Court held in this case that the competing Expert testimony contributed to a genuine issue of material fact precluding summary judgment. Id.
First in a Series. To be continued ....
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Dennis, I have a title insurance arbitration decision that may be of interest to you and your readers. If you do not mind emailing me, I will respond and send it to you as a pdf.
Posted by: Philip Leas | July 21, 2012 at 07:45 PM
Philip, Your note sounds interesting. Definitely send on your story so that I can look at it. I would not be able to publish it on the blog as a pdf, however, so if you want it ultimately to be published on the blog, please send it to me in the form of a further Comment.
Regards,
Dennis Wall
Posted by: Dennis Wall | July 22, 2012 at 12:37 PM