Claims and Bad Faith Law Blog

HEAD-SCRATCHING FROM OKLAHOMA EARTHQUAKE EXCLUSIONS.

New Dominion engaged in oil and gas operations in Oklahoma.  It obtained a Commercial General Liability Policy from National American Insurance Company (NAICO).

          New Dominion's operations allegedly caused seismic activity which resulted in New Dominion being sued for both bodily injury and property damage claims for injuries and damages allegedly occurring between 2012 and January 2016 when what came to be called "the Earthquake Suits"  were filed against New Dominion.  Nat'l Am. Ins. Co. v. New Dominion, LLC, ___ P.3d ___, Nos. 118490 & 1184962021 (Consolidated), 2021 WL 5459471, ¶14, at *3  (Okla. November 23, 2021).

          The Oklahoma Supreme Court affirmed a trial court's declaratory judgment, in part here pertinent, that a Subsidence and Earth Movement Exclusion in several years of policies (inception and renewal policies) that NAICO issued to New Dominion clearly and unambiguously excluded all claims in the underlying Earthquake Suits against New Dominion.    

          In several of the years in question, if not all of the years in question, the Subsidence and Earth Movement Exclusion clearly and unambiguously excluded property damage only.  The Court reviewed all three years of Subsidence and Earth Movement exclusionary language at issue.  Parenthetically, there was a fourth year in which NAICO issued a GL policy to New Dominion but the parties stipulated that the fourth policy excluded all coverage.  See NAICO, 2021 WL 5459471, ¶¶ 35-42,  at *7-*8.

          Nonetheless, as noted, the trial court declared in part that the Subsidence and Earth Movement Exclusions over the years barred the Earthquake Lawsuits, and the Oklahoma Supreme Court affirmed:

The trial court's finding that the Subsidence and Earth Movement Exclusions in all four policy periods clearly and unambiguously preclude coverage for the Earthquake Lawsuits is affirmed. 

NAICO, 2021 WL 5459471, ¶ 54, at *11.

          What a head-scratcher.  I have looked at this opinion three or four times now, and each time it seems to say that all coverage is excluded by an exclusion that only excludes property damage.  I am going to take another look, but this opinion is still a head-scratcher.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

EXPERT WITNESSES IN INSURANCE BAD FAITH CASE IN FEDERAL COURT.

In 5205 Lincoln LLC v. Owners Ins. Co., No. CV-19-5218-PHX-JJT, 2021 WL 5446461 (D. Ariz. November 22, 2021), a federal district judge confronted a bad-faith case involving the collapse of a roof at one of three buildings insured under a single policy.  The owners of the buildings, located at a commercial center, leased two of the three buildings including the one whose roof collapsed.

          When the roof was not repaired in a timely enough fashion, the tenant declared a constructive eviction and terminated its lease with the plaintiffs for both buildings.

          The plaintiff owners and the carrier could not agree on the extent of insurance coverage.  The issue before the court in this iteration of the case was "the admissibility of the testimony of the parties' expert witnesses on the subject of insurance claim handling."

          The court's ruling with regard to the opinion testimony of one of the defendant's proffered experts, one Hromas, is worth noting here.  "[T]o the extent that Mr. Hromas does not state the factual basis for his opinions [in his expert's report required under the rules of civil procedure and exchanged in discovery], supports his conclusions with only 'the totality of the claim file,' or attempts to state a legal conclusion, the Court will exclude his testimony."  5205 Lincoln LLC, 2021 WL 5446461, at *3.

          The court's ruling was otherwise "to the extent that his opinions are supported by facts or data articulated in his written report, or to the extent he explains how his experience leads to an opinion"; then, the court ruled,  "Mr. Hromas may testify regarding these opinions."  5205 Lincoln LLC, 2021 WL 5446461, at *3.

          Expert's reports:  Facts, data, and experience on display with reasonable specificity are the keys to admissibility of opinion testimony in federal courts and in all the courts that follow the federal procedure for admission of opinion testimony in bad faith cases as well as in other kinds of cases.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

FIRST-PARTY BAD FAITH FRAUD NOT AUTOMATICALLY EXCEPTION TO PRIVILEGE.

In Younger v. Safeco Ins. Co. of Am., No.: 1:20-CV-67, 2021 WL 5402535 (N.D.W. Va. September 8, 2021) (USMJ), the plaintiff alleged first-party bad faith in a jurisdiction, West Virginia, which recognizes that the kind of fraud that can be involved in a first-party bad faith claim can lead to the crime/fraud exception to attorney-client privilege.

          In other words, in an appropriate case involving West Virginia law, or involving the law of other states that look the same way at fraud in a first-party bad faith claim, it may be possible to show that the defendant first-party insurance carrier involved its legal counsel in a scheme to defraud of some kind in the course of committing actionable bad faith, and so pierce the attorney-client privilege in that case.

          "However, a plaintiff must still show that defendant involved their legal counsel in some kind of scheme to defraud, such that the crime fraud-exception applies."  Younger, 2021 WL 5402535, at *5.  Allegations alone are not enough, even when the allegations are of first-party bad faith in a jurisdiction which recognizes that bad faith can provide the civil fraud necessary to pierce the attorney-client privilege under the crime/fraud exception.  There must be a showing involving proof in the record:

    In the context of the matter at bar, there is not sufficient demonstration by Plaintiff that a violation was ongoing or about to be committed, let alone a demonstration of a close relationship between any attorney-client contact and the tortious conduct alleged. Courts are reluctant, for good reason, to find that the crime-fraud exception applies, given the sanctity of the privileges at issue.

    The nature of these claims are fact-driven. The Court, having had the benefit of an in camera of the entire, unredacted claims file, including those documents substantially redacted pursuant to claims of attorney-client privilege and work product doctrine, has found no facts in this case to support the granting of a crime-fraud exception.

Younger, 2021 WL 5402535, at *5.

The Younger case will be discussed in the 2022 Supplements along with other first-party bad faith cases already analyzed involving the crime/fraud exception to attorney client privilege, in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 12:8 regarding discovery of Insurance counsel's files (3d Edition Thomson Reuters West & 2021 Supplements).

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

THIS TIME, A TRAMPOLINE PARK WITH NO COVERED COVID CLAIM.

In Jump Buffalo Grove, LLC v. Cincinnati Cas. Co., No. 21 C 2015, 2021 WL 5396696 (N.D. Ill. November 18, 2021), the Court quoted from the insurance policy at bar:

6. “Loss” means accidental physical loss or accidental physical damage.

Jump Buffalo Grove, 2021 WL 5396696, at *2.  That policy definition determined the outcome here.  The Court dismissed the trampoline park operator's coverage claims based only on the COVID-19 pandemic including government orders to shut down the park's business operations.

          This holding is consistent with the vast majority of holdings in cases involving similar coverage issues presented by different policyholders across the country.  This time, it was a trampoline park with no coverage for COVID-caused claims that in the judge's eyes did not involve "accidental physical loss or accidental physical damage."

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

Today is the 58th anniversary of the murder of a President in Dallas, Texas.  Many things have changed over the years, but to coin a phrase, "nothing is new."

BEWARE THE FILED insurance RATE 'DOCTRINE'!

Filed Rate Doctrine cases emphasize that people adversely affected by regulated rates have a remedy available in regulatory law.

          A Florida case recently published on Westlaw (so recently published that Westlaw has not yet assigned page numbers at the time of this blog article) gives the lie to this bromide, at least in the field of insurance.  The case was decided months ago.

          In the case of Compass Pt. Condo. Ass'n v. Florida Office of Ins. Reg., 325 So. 3d 227 (Fla. 1st DCA 2021), Florida's most industry friendly court was confronted with exactly this issue.  Compass Point filed a written complaint with OIR under the Florida Insurance Rating Law.  Florida law gives OIR the power to deal with rate filings that violate statutory requirements.

          Compass Point complained that Citizens' insurance rate filings did not comply with the statutory requirements of the Florida Insurance Rating Law.   This administrative proceeding was initiated by a condominium association of homeowners, i.e., by the people aggrieved by the allegedly illegal rate filings, it deserves mentioning.

          OIR found Compass Point's complaint legally sufficient.   The OIR also "invited Citizens to correct the noncompliance" and "informed Citizens of its right" to request an administrative hearing.   The Court's opinion advises that Citizens filed a petition for administrative hearing; there is no mention that Citizens did, or did not, "correct the noncompliance" with the statutory requirements for insurance rate filings.

          The opinion is admittedly murky but after several readings it becomes clear that OIR opened an "administrative regulatory proceeding against Citizens."  The First District also called this "a rate compliance proceeding with a regulated insurer," and "an administrative regulatory action against the license of the insurer."

          Under the regulatory scheme of the Insurance Rating Law, the policyholder which filed  a complaint alleging noncompliance in filed rates is not a party to the OIR proceeding.  That is central to the decision in Compass Point.

          It is also the source of the trap in applying the Filed Rate Doctrine to insurance.

          The state government agency responsible for regulating insurance, the Florida OIR in this case, settled with the insurance company.  "Under the terms of the consent order" that settled the proceeding, said the First District, Citizens dismissed its request for an administrative hearing, OIR issued a finding that Citizens complied with the Law's rate filing requirements, and "the regulatory proceeding initiated by Compass Point's complaint under section 627.371 was closed."

          The Filed Rate Doctrine exists in contexts outside of insurance because the regulatory schemes are said by judges to allow remedies for rate filings.  In the Compass Point case, the remedy was an empty one for the party aggrieved by insurance rate filings that did not comply with the regulatory scheme.  Compass Point was not allowed to challenge the OIR settlement with Citizens. 

          In the end, decisions like Compass Point  make it clear that knowledge of the Filed Rate Doctrine and experience with insurance regulation are both essential before addressing the issue where it is an open one, of whether to transplant the Filed Rate Doctrine that works with federally regulated utilities, to insurance rates regulated by the states.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

RELIABILITY, NOT CORRECTNESS: FEDERAL STANDARD FOR EXPERT IN INSURANCE CASE.

In Conrad v. Owners Ins. Co., No. 20–cv–02173–KMT, 2021 WL 5280188 (D. Colo. November 12, 2021) (Tafoya, USMJ), a federal Magistrate Judge applied the federal standard for admissibility of expert testimony to a proffered expert in an insurance case:  Reliability, not correctness.

          The Court described the proffered expert as an experienced attorney, and a former Colorado Insurance Commissioner.  Conrad, 2021 WL 5280188, at *1.

          The witness will be permitted to testify to insurance industry standards.  Conrad, 2021 WL 5280188, at *2.

          However, the witness will not be allowed to testify to legal conclusions.  This includes the expert's testimony about Colorado's version of the Unfair Claim Settlement Practices Act.  "While [the proffered expert] is permitted to testify as to insurance industry standards and may testify that defendant's conduct did not conform with those standards, he may not apply legal standards from caselaw or statutes to state an opinion that defendant's conduct violated caselaw or statutes."   Conrad, 2021 WL 5280188, at *3.

          Finally, the witness will be permitted to testify on the duty of good faith and fair dealing implied in the Underinsured Motorist insurance contract at bar, even though bad faith and unfair dealing was not alleged as a cause of action separate from breach of the UIM contract at issue.  Conrad, 2021 WL 5280188, at *4.

          Reliability, not correctness.  That is the standard for admitting expert opinions into evidence in federal court, including in insurance cases.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

POSTSCRIPT TO GOOD FAITH AND RESTATEMENT OF CONSUMER CONTRACTS LAW.

In one of yesterday's articles published here, I mentioned that the American Law Institute was holding a Meeting of Advisers and Members Consultative Group of the Restatement of the Law, Consumer Contracts.  I noted especially that we would be discussing "good faith" in the Preliminary Draft No. 4 (October 2021).

          My small contribution was to suggest that the Consumer Contracts Law Restatement needed to clarify that the implied covenant of good faith and fair dealing in insurance contracts is governed by the ALI's Restatement of the Law of Liability Insurance.  Full disclosure:  I served on the ALI's Liability Insurance Project.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

GOOD FAITH AND THE RESTATEMENT OF THE LAW OF CONSUMER CONTRACTS.

Today in the American Law Institute Meeting of Advisers and Members Consultative Group, we will be discussing "good faith" in the Preliminary Draft No. 4 (October 2021) of the Restatement of the Law, Consumer Contracts.

          The ALI Reporters wrote the current Preliminary Draft of the Consumer Contracts Restatement to follow the Uniform Commercial Code § 1-201(b)(20), in which the term, "good faith," is defined as "honesty in fact and the observance of reasonable commercial standards of fair dealing."  This statute has been enacted without substantive change in many jurisdictions, including in Florida in this link provided by the Florida Legislature, Fla. Stat. § 671.201(20).

          The Reporters of the Consumer Contracts Restatement wrote that this definition is not intended to change the meaning of the implied covenant of good faith and fair dealing.  That being said, it is still open to question what role this definition may play in cases of consumer insurance contracts.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

STRIKING THE INDUSTRY STANDARDS FROM COLORADO BAD FAITH COMPLAINT.

In Smith v. State Farm Fire & Cas. Co., No. 21-cv-00866-CMA-NYW, 2021 WL 5195326 (D. Colo. Nov. 9, 2021) (Recommendation of U.S.M.J. Wang), a Magistrate Judge in the federal District of Colorado recommended that certain industry standards be stricken from the plaintiffs' bad faith amended complaint:

    Defendant is specifically concerned with subparagraphs u, v, and w. See [Doc. 38 at 6]. Paragraph 4(u) alleges that "[i]nsurers should not in any manner tie any claim personnel's compensation with insurer profitability based on delay or denial of claims.” [Doc. 26 at ¶ 4(u)]. Paragraph 4(v) alleges that "[i]nsurers should not use their claims department as a profit center.” [Id. at ¶ 4(v)]. Paragraph 4(w) avers that “[i]nsurers may not violate the Unfair Claims Settlement Practices Act.” [Id. at ¶ 4(w)]. This court agrees that these statements are not factual allegations regarding standards generally accepted in the insurance industry as to how a first-party insurance claim should be adjusted. Rather, they are more akin to public policy statements that are not relevant to whether State Farm was reasonable in its conduct when adjusting the Smiths’ claim. In addition, Paragraph 4(w) is a type of statement regarding applicable law that generally is reserved to the trial court. 

Smith v. State Farm, 2021 WL 5195326, at *5.

          The Magistrate Judge also recommended that subparagraphs (a) through (d) of the same paragraph 4 be stricken as well.  She did not recite their allegations in her opinion. 

          A review of paragraph 4 of the bad faith complaint on PACER (the portal of "Public Access to [Federal] Court Electronic Records") reveals that subparagraphs (a) - (d) are simply recitations of what laws have been invoked by the plaintiffs.    

         The Magistrate Judge's opinion does not disclose where all of these "industry standards" came from before they found their way into the allegations of plaintiffs' bad faith complaint.  The operative or Amended Complaint recites that in pertinent part these allegations are statements taken from the Unfair Claims Settlement Practices Act as adopted by the Colorado Legislature.  See Paragraph 4 of Download Smith v. State Farm Amended Complaint Doc. 26 filed April 16 2021 (D. Colo. Case No. 21-cv-00866).

Wherever the UCSPA set out lynchpins of liability, however, the Magistrate Judge recommended that the motion to strike them be denied.  Instead, they will remain in the Amended Complaint and set the issues for fact discovery in this bad faith case. 

Parenthetically, the plaintiffs alleged that the defendant which allegedly violated common law and statutory duties of good faith, is their homeowner's carrier.  See Paragraph 5 of their Amended Complaint, Download Smith v. State Farm Amended Complaint Doc. 26 filed April 16 2021 (D. Colo. Case No. 21-cv-00866).

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

OKLAHOMA, UMBRELLA/EXCESS-PRIMARY, U.M., AND GOOD FAITH DUTIES.

In Desmet v. Scottsdale Ins. Co., No. CIV-20-330-J, 2021 WL 5173637 (W.D. Okla. October 21, 2021), a federal judge in the Western District of Oklahoma confronted and resolved issues of Oklahoma law concerning Umbrella/Excess Policies, Primary Policies, Uninsured Motorist Coverage, and Good Faith Duties among all of it.

          In this case, an Umbrella Policy was at bar.  This particular type of Excess Policy required Underlying Insurance, of course.  Duties did not incept or begin under the Umbrella Policy until the Underlying Insurance was exhausted, in sum and in substance.

          Further, Oklahoma law made and makes Uninsured Motorist Coverage primary.  In this case, the Underlying Insurance including primary insurance was not exhausted before the plaintiff sued the Umbrella for alleged bad faith.  (Under Oklahoma law, only primary carriers are required to offer U.M. Coverage but in this case, the Umbrella Policy offered U.M. Coverage as a part of the Umbrella contract.)

          Moreover, the terms of the contract are equally clear that all underlying insurers must have paid or been held liable to pay the full amounts of their UM coverage policies before the Umbrella Policy was triggered. Umbrella Policy at 9, 24, 27, 32. As such, Defendant's liability did not attach until the insurers of all the underlying insurance had paid or been held liable to pay the full amount of their respective UM coverage liability.

Desmet, 2021 WL 5173637, at *4. 

          Since the Umbrella Carrier was sued before its Duties of Good Faith ever incepted or even began, the Court granted its Motion for Summary Judgment on the bad faith claims alleged against it in this case. 

          The plaintiff requested leave to amend but the time for amendments established by the Court's Scheduling Order had already passed, and even if the request to amend were to be considered, the Court wrote that it was presented only with general arguments that 'justice requires leave to amend' without any particularized grounds to amend, the lack of good cause, and the issue of diligence, among other things mentioned by the Court while denying leave to amend here.

          In the end, as the Rolling Stones never sang, 'Time Is Not On My Side, oh no, it's not.'

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

"OFF-SHORING" THE FRD: TEXAS INSURANCE FILED RATE DOCTRINE IN WISCONSIN.

In French v. Northwestern Mut. Life Ins. Co. & Northwestern Long Term Care Ins. Co., No. 20-cv-1090-bhl, 2021 WL 5162646 (E.D. Wis. November 5, 2021), the Texas Insurance Filed Rate Doctrine was off-shored in a case filed in Wisconsin federal district court.

            The plaintiffs in that case had previously purchased long-term care insurance policies in Texas.  They complained because eleven years later the defendants raised both of their annual premiums by $4,285.70.

            Parenthetically, at or shortly after the time they filed their complaint, the plaintiffs proceeded pro se in this case and as pro se plaintiffs they opposed the defendants' affirmative defense of the Texas Insurance Filed Rate Doctrine.

            The premium increase of $4,285.70 apiece represented a 62% increase on each policy.  The Texas Department of Insurance, which regulates insurance in Texas, ginned the defendants' request down from 86%.  French, 2021 WL 5162646, at *2.

            Texas applies an Insurance Filed Rate Doctrine.  It found a willing federal judge in Wisconsin who applied it here. 

            That should have been the end of this case:  Texas has an Insurance FRD, the Texas Department of Insurance regulated the insurance policies in this case, and that administrative agency in Texas approved the rate increase filed by the defendants, discussed above.  That is how the Filed Rate Doctrine works.

          Texas law applies to this case, therefore the Texas Insurance FRD bars the claims.  To say again, that should have been the end of the case.  Except for a possible discussion of why or why not applying the Texas Insurance Filed Rate Doctrine might have been against the public policy of Wisconsin so that Wisconsin's choice of law doctrine would have rejected the Texas Insurance FRD.

            But there was no such discussion by the federal judge in this case in Wisconsin.  Failing that, a decision in the case was straight-forward.  In dicta, the Wisconsin federal judge went on to write a long opinion on why the Filed Rate Doctrine was invented in federal courts and why it should be applied to cases like this insurance case.  He also wrote to reject one or two legal arguments that the pro se plaintiffs thought it was good to raise.

          This may have resulted in his longest opinion since he assumed the bench in September 2020.  It is however dicta.

          Sometimes lawyers are given the opportunity to write about many things, when only one thing is necessary to decide their clients' cases.  On those occasions, lawyers face a great temptation which many other people do not have to face.  For some federal judges, those occasions appear to be part of their new job description.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

P.S. TO FIFTH CIRCUIT STAY OF VACCINATING U.S. WORKERS.

Here is the Fifth Circuit panel's stay issued within 24 hours from when the plaintiffs filed their complaint over workers being vaccinated in the U.S.:  Download 5th Cir Next Day Stay Order Filed 11.06.21.

          I just took a look at the name of one of the plaintiffs, "Trosclair Judge Perez L.L.C."  This limited liability company bearing the name of a very wealthy owner of Louisiana supermarkets and other businesses also bears the name of Judge Perez.  Who was he, I wondered?

          Judge Perez is an unusual story.  For starters, he was such a segregationist that he was excommunicated for it.

          He also engaged in pervasive efforts to stop Black people from voting in his Louisiana Parish, efforts that today would be called voter suppression.

          Quite a cast of characters in this litigation.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

FIFTH CIRCUIT, VACCINES, AND HOPE REGARDLESS.

On Friday, the State of Texas and others representing the Republican Party sued to stop the Federal Government from vaccinating the workers of the United States.

          On Saturday, a panel of the Fifth Circuit Court of Appeals (there was no U.S. District Court involvement that I know of) issued a stay to prevent the United States from vaccinating its workers.

          The response in corporate and legal media to this decision within 24 hours of when the complaint was filed, has largely been the usual response to judicial decisions, which is that we don't know what these judges have in mind, and courts are inscrutable.

          That is ridiculous, in this case and in many others.

          Here is the real story in this case:  Two of these three judges on the Fifth Circuit panel were appointed by The Former Guy.  The third was a lawyer for the Republican Party of Texas.  (She is famed not so much for knowing the law as inventing it when she wants; for example, she overruled a Mississippi District Judge about Mississippi insurance law in a case which the Mississippi Supreme Court has rejected by name because it does not represent Mississippi law.)

          That is the panel and what it is likely to do in this vaccine mandate case is not inscrutable.  We can make a reasonable guess what these judges have in mind, based on experiencing what they have left behind during their careers.  Do you really think that the odds are that Republicans will fail with them?

          We cannot truly hope for justice until we know the odds against it.  We cannot know where we are going until we know where we are.  It is my hope that justice will prevail nonetheless, even at the hands of these judges in this particular case.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved. 

RECONSIDERATION, EXPERTS, MOTIONS IN LIMINE, IN ONE BAD-FAITH CASE.

In an unusual development, the Federal District Judge in Rap Indy, LLC v. Zurich Am. Ins. Co., No. 1:19-cv-04657-JRS-MJD, 2021 WL 5029520 (S.D. Ind. September 15, 2021) reversed himself when he reconsidered several of his prior rulings in the case.

          Taken together, the District Judge's prior rulings excluded all expert testimony on claims handling whether proffered by the plaintiffs or by the defendant.  It was unusual for a federal judge to reverse earlier rulings he himself had made in the case, but to this judge's credit, he did.

          When the judge entered his new rulings in this first-party bad-faith case, they were not unusual.  In fact, the new rulings represent the prevailing views across the nation on the subject of admitting the opinion testimony of expert witnesses in bad-faith cases:

    Upon reconsideration, the Court finds that expert testimony as to industry standards for property claims handling practices will assist the jury to understand the evidence in this case particularly with respect to the bad-faith claim. [Citations omitted.]  The Court will not allow expert testimony as to the law governing this action, nor will the Court allow testimony as to legal duties or any opinions that a party violated (or did not violate) those legal duties; however, the Court will allow expert testimony as to customs, practices, and standards in insurance claims handling and as to how Zurich did or did [not] meet such customs, practices, and standards.

Rap Indy, 2021 WL 5029520, at *1.

            The Court was not done, however.  The Court clearly explained the purpose and function of a motion in limine in federal practice:

    Finally, the granting of a motion in limine is not a final ruling on admissibility of the evidence. An order granting a motion in limine precludes any party from eliciting testimony or otherwise mentioning an issue in the presence of the jury without first seeking leave of Court outside the jury's presence.

 Rap Indy, 2021 WL 5029520, at *2.  Candidly, that is the clearest explanation of motions in limine and orders granting them that I have read or heard in 43 years of practice.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.