Claims and Bad Faith Law Blog

CASCADE OF EXPERT NEWS IN INSURANCE AND BAD FAITH CASES.

          Given the stacks on my desk, there is just enough time to post this  article and feature a cascade of news about Expert Witness rulings in Cases involving Insurance and Bad Faith Issues.

          In Evanston Insurance Co. v. Premium Assignment Corp., 2013 WL 81997 (M.D. Fla. January 7, 2013), a District Judge denied a Motion in Limine which would, if granted, have barred the Expert Testimony of a lawyer Expert offered by the Insurance Company including on issues of potential Third-Party Bad Faith in Settlement.  The Lawyer-Expert proffered by the Insurance Company in that case specializes in representing injured Plaintiffs.  However, the District Judge also ruled that the opposing party can object to the actual Testimony at Trial.  Evanston Insurance Co. v. Premium Assignment Corp., 2013 WL 81997 *6 (M.D. Fla. January 7, 2013).

          In Schultz v. Ability Insurance Co., 2012 WL 52825777 (N.D. Iowa October 25, 2012)(Scoles, Chief USMJ), the Court produced a lengthy Order with its own embedded Table of Contents.  The Bad Faith Claim in that case was a First-Party Claim, based on an alleged denial of Coverage under a Long-Term Care Insurance Policy.  Specifically, the Policyholder alleged that her Claim was denied "'without reasonable basis in fact,'" and "'without proper and adequate investigation,'" but with full "'knowledge of the lack of reasonable basis'" for the denial.  The Insurance Carrier responded that the Policyholder's Claim was "'fairly debatable.'"  Schultz v. Ability Insurance Co., 2012 WL 52825777 *7 (N.D. Iowa October 25, 2012).  Noting that Iowa recognizes a Tort of First-Party Bad Faith, Schultz v. Ability Insurance Co., 2012 WL 52825777 *8 (N.D. Iowa October 25, 2012), the Court reviewed what was likely the entire record of this case and concluded that as to the Policyholder's claim of Coverage for "progressive dementia," the case including the Expert Testimony of her physicians raised a fact issue triable by a Jury over whether the Carrier had either no reasonable basis for denying the Claim, "or knew or should have known that its basis for denying Schultz's claim was unreasonable".  Schultz v. Ability Insurance Co., 2012 WL 52825777 *8-*14, *14-*15 (N.D. Iowa October 25, 2012).

          In the Connecticut Appellate Court case of Fortin v. Hartford Underwriters Insurance Co., 139 Conn. App. 826, 2013 WL 9882 (Conn. App. Ct. January 1, 2013), a Lawyer's Testimony as an Expert Witness was precluded on the issue of what was a reasonable settlement by the Plaintiffs.  The basis for this ruling had nothing to do with the fact that the Expert Testimony evaluating the Plaintiffs' underlying settlement was proffered by the Plaintiffs in the person of a Lawyer.  The basis for the ruling had everything to do with the fact that his proposed Testimony was based on little more, said the Court, than "the mediation statements of the parties."  Fortin v. Hartford Underwriters Insurance Co., 139 Conn. App. 826, 2013 WL 9882 *5 (Conn. App. Ct. January 1, 2013).  The record "does not reveal that" the Expert in question "had an adequate factual basis upon which to evaluate" the Plaintiffs' underlying exposure, "whether the settlement was advisable," whether the underlying claims "were brought in good faith or whether the amount for which the plaintiffs ultimately settled the claims was excessive."  With these deficiencies, said the Appellate Court of Connecticut in this case, the Expert's Opinion "concerning the reasonableness of the settlement was without substantial value to a finder of fact and, therefore, properly was precluded by the court."  Fortin v. Hartford Underwriters Insurance Co., 139 Conn. App. 826, 2013 WL 9882 *5 (Conn. App. Ct. January 1, 2013).

          There we have them, a cascade of cases involving proffered Expert Witnesses in Insurance Cases and on Bad Faith Issues.  Lawyers allowed to testify in a Third-Party Bad Faith Case, and precluded from testifying based on a review of the record (the Court's more than the Expert's, apparently) in a second Third-Party Bad Faith Case, and "fair debatability" presenting a Jury question based on the record in the remaining case, a First-Party Bad Faith Case.

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Related articles

Decision of "No Coverage" by Deciding There Is No Tort.

EXPERTS APPOINTED BY THE COURT, PARTIES PAY ... WHO SELECTS?

          Judges are saying recently that in particular kinds of cases, Experts are helpful to them in resolving those cases.  Since these recent judicial observations were apparently not recorded and there was no expectation of attribution of particular views to particular Judges, their remarks will be reported anonymously in this article.

          The kinds of cases in which Experts are helpful to Judges in resolving the issues are cases involving backgrounds which most Judges simply do not have, such as in cases which involve scientific and other technical issues.  To these cases may be added many Insurance Coverage and Insurance Bad Faith cases which also often present technical, complex issues.

          One Judge observes that a case has often gone down the road for a long ways before a Judge appreciates the technical advice that an Expert can bring to bear.  Many Judges admit that it is a signal of when a Judge may need the help:  When the Experts already retained by the parties have a legitimate dispute among themselves and there is difficulty in understanding their Opinions and how they reached them.

          Most Judges, perhaps all Judges, would treat the Court-appointed Expert like they treat the relationships they have with their own Law Clerks.

          The parties play a huge role.  They can suggest to the Trial Judge that an Expert appointed by the Court -- selected or at least suggested by the parties -- may assist the Court in addressing the issues and resolving the case.  The parties will pay the Court-appointed Expert's fees.  That procedure is usually far less expensive to the client than being forced to appeal an unfavorable outcome which could (and should) have been avoided by the Trial Court's reliance on the advice of an Expert.

          In short, as one Judge observed, if the issue is complicated, uncomplicate it.   If you cannot uncomplicate it, the Judge probably needs the technical advice of the Court-appointed Expert.

          In Federal Courts, Federal Rule of Evidence 706 provides the tool:

Rule 706. Court-Appointed Expert Witnesses

(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

(b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:

(1) must advise the parties of any findings the expert makes;

(2) may be deposed by any party;

(3) may be called to testify by the court or any party; and

(4) may be cross-examined by any party, including the party that called the expert.

(c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows:

(1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and

(2) in any other civil case, by the parties in the proportion and at the time that the court directs — and the compensation is then charged like other costs.

(d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert.

(e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.

           Note that under FRE 706, the Court-appointed Expert Witness can be deposed by any party and can be called by any party or the Court to testify at Trial.  Ordinarily in human experience across the United States, most Insurance Bad Faith cases settle after Expert Witnesses are deposed.  It will be interesting to see if that holds true after Court-appointed Expert Witnesses are deposed.

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Also check out the outstanding Cavalcade of Risk at http://www.workerscompinsider.com/2013/01/cavalcade-of-ri-94.html, hosted by Julie Ferguson.

EXPERTS: IT'S THE RECORD THAT ANCHORS THEM AND MAKES THEIR TESTIMONY REAL.

          In Insurance Cases as in other kinds of cases, it is a truism that Expert Opinion Testimony must be based on the record evidence.  The Sixth Circuit recently reiterated this notion in a unique way in a case involving Kentucky substantive law:

Courts are understandably wary of allowing unanchored, hypothetical expert testimony to constitute the exclusive foundation of a plaintiff's case. Doing so would be too unreliable. See Ky. Trust Co. v. Gore, 192 S.W.2d 749, 752 (Ky.1946) (finding that expert testimony must be supported by “proven facts”). However, when an expert “buttress[es][his] opinion by reference to the proved circumstances in a case,” [citation omitted]or bases his opinion on “personal examinations and tests,” [citation omitted], the jury is entitled to credit that opinion.

Arch Insurance Co. v. Broan-Nutone, LLC, 2012 WL 6634323 *8 (6th Cir. December 21, 2012).  Insurance Claims and Issues highlights an article posted on the Federal Courts' "gatekeeper" function for allowing Expert Witness Testimony, in this post on December 26, 2012.

 Happy New Year to All in the year to come!

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Experts in Insurance Cases: Care, Not "Bad Faith" or "Violation".

           A catastrophic fire erupted at a sawmill in Idaho.  The lumber company turned to its Insurance Company.  The lumber company sued the Insurance Company for Bad Faith after the Insurance Company's "valuation of certain property destroyed in the fire," and its handling of the lumber company's claim for losses under the Policy.  Mills v. Indiana Lumbermens Mutual Insurance Co., 2012 WL 5831196 *1 (D. Idaho November 16, 2012).

          This decision involved Expert Witness Testimony in the lumber company's Bad Faith case.  The lumber company requested leave to amend its Complaint to add a claim for Punitive Damages.  It attached an Affidavit from one of its listed Experts in support of its Motion for Leave to Amend.  The Insurance Company objected and filed its objections in a Motion to Exclude the Expert's Testimony.  In pertinent part, the Insurance Company's objections to the Expert Witness's Affidavit were that in the Affidavit, the Expert tried to define what the law is; that the Expert "offered legal conclusions as to compliance with, or violations of, particular statutes;" and that in the Affidavit, the lumber company's Expert offered legal conclusions "as to the meaning and application of the insurance contract".  Mills v. Indiana Lumbermens Mutual Insurance Co., 2012 WL 5831196 *1 (D. Idaho November 16, 2012).

          A United States Magistrate Judge granted the Insurance Company's Motion to Exclude the Expert Witness's Testimony in part, and denied it in part.  The Motion was granted to the extent that Expert Testimony is not admissible in an Insurance Bad Faith case in order to "attempt to preemptively answer ultimate issues of law" such as violations of specific statutes including identified "fair claims practices" laws, all of which apparently happened to be at issue in this Bad Faith Case.  Expert Opinions of this sort simply "do not constitute admissible expert testimony."  Mills v. Indiana Lumbermens Mutual Insurance Co., 2012 WL 5831196 *3 (D. Idaho November 16, 2012).

          However, the lumber company-Policyholder-Plaintiff in this Bad Faith Case will nonetheless be allowed to offer more generalized Expert Testimony "speaking to [the Insurance Company's] duty under the circumstances and whether, in fact, [the Insurance Company] complied with that duty of care."  Mills v. Indiana Lumbermens Mutual Insurance Co., 2012 WL 5831196 *3 (D. Idaho November 16, 2012).

          Accordingly, the Court denied the Insurance Company's Motion to Exclude to the extent that Expert Witnesses can still testify to the Insurance Company's more general Good Faith standard of care with respect to the lumber company's Claim, and whether the Insurance Company complied with that duty of care.  The Court further held that the Insurance Company will still be free to file a Motion or Motions in Limine to challenge the Expert's Testimony, "being sure to challenge his actual report instead of affidavits offered in support of an ancillary motion."  Mills v. Indiana Lumbermens Mutual Insurance Co., 2012 WL 5831196 *3 (D. Idaho November 16, 2012).

          In these rulings, the Court's decision is in accord with the weight of authority that Expert Witnesses can testify to prevailing Good Faith standards to which Insurance Companies allegedly should conform their conduct and purportedly did so, or did not do so, whereas Expert Witnesses cannot permissibly Testify in Federal Court to alleged violations of particular Statutes, or of specific Administrative Rules and Regulations which have the force of law.  See generally Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" §§ 8:17 ("Experts in Third-Party Insurance Bad Faith Cases:  Specific Cases and General Rules") & 12:18 ("Experts in First-Party Insurance Bad Faith Cases:  Specific Cases and General Rules")   (West Publishing Company Third Edition, 2012 Supplement).

The American Conference Institute's 23rd National Advanced Forum on Bad Faith Litigation begins with a workshop on Tuesday, November 27, 2012 at the Hyatt Regency Grand Cypress Hotel at Disney World in Orlando, Florida, and continues over the following two days.  I will be speaking on both of the following days.  On Wednesday, November 28, 2012 I will be part of a panel addressing the handling and litigation of a typical Bad Faith Claim.  I will address in particular the permissible proffers and uses of Expert Witnesses before and at Trial of the Bad Faith Case.  On Thursday, November 29, 2012 I will be a co-presenter of an afternoon-long Florida Workshop.  Please plan on attending.  I would prefer to present these issues with you in the audience!

EXPERTS IN INSURANCE: COVERAGE MAY DEPEND ON WHAT THEY TESTIFY.

            In Rapid Park Indus. v. Great Northern Ins. Co., 2012 WL 5458023 (2d Cir. November 9, 2012), the Second Circuit Court of Appeals affirmed a Summary Judgment in an appeal from the Southern District of New York (Rakoff, J.).

            In many cases, First-Party Insurance Companies are sued for Bad Faith for failing to investigate the claim.  In this case, two "business interruption insurance" companies were accused of affording Coverage by Estoppel because they allegedly took too long to investigate the claim and to thereafter affirm or deny Coverage.

            The Second Circuit summarized the record in this case in affirming that there was no Coverage by Estoppel on the record or under New York law here.  The Second Circuit's final observation was this:  "Finally, plaintiffs' own insurance expert acknowledged that defendants needed to make an inspection of the garage before determining coverage."  Rapid Park Indus. v. Great Northern Ins. Co., 2012 WL 5458023 *2 (2d Cir. November 9, 2012).

            This is a case in which an investigation was done by the Insurance Companies, the Insurance Companies' investigation confirmed the absence of Coverage, and the Courts upheld a Summary Judgment in the "business interruption" Insurance Companies' favor including on the Plaintiffs'-Policyholders' contention of Coverage by Estoppel.

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DISCOVERY: OTHER CLAIMS AND INVESTIGATING "SURVEYORS AND CONTRACTORS" BILLINGS.

            In a recent decision in California, a United States Magistrate Judge was confronted with numerous discovery requests in a case involving issues both of Insurance Coverage and of alleged Bad Faith claims.  Three of the discovery requests, one of which concerned a set of interrogatories and two of which concerned document requests, deservedly draw attention here.

            The first such discovery request was a set of interrogatories concerning a phrase used in the Insurance Company's Disclaimer of Coverage in that case.  The case involved Ocean Marine Cargo claims based on movements of large transformers over the ocean.  Century Aluminum Company served a Motion to Compel when the Defendant AGCS Marine Insurance Company refused to answer interrogatories concerning other Policies under which AGCS in essence denied Coverage, as in this case, on the ground that shipments were not "sufficiently packed to withstand the voyage".  Although he did not quote the interrogatories in full in this opinion, the U.S. Magistrate Judge granted Century's Motion to Compel as the Court limited the interrogatories to AGCS Policies "that involve ocean marine movements (as opposed to inland movement)" and to the movement of "transformers, not other large pieces of industrial electrical equipment."  Century Aluminum Co. v. AGCS Marine Insurance Co., 2012 WL 3647484 *2 (N.D. Cal.August 23, 2012)(Cousins, USMJ), Download Century Alum. Co. v. AGCS Marine Ins. Co. (N.D. Cal. August 23, 2012)(Cousins, USMJ) HIGHLIGHTED COPY.  PACER, the online docket of the Federal Courts, reflects that AGCS filed a Motion for Relief from this Order of the Magistrate Judge, which was denied by Order of the United States District Judge filed on September 18, 2012.

            The second discovery issue concerned a pair of document requests relating to two other transformer damage claims "that AGCS transformer expert Opperman testified he handled."  Century Aluminum Co. v. AGCS Marine Insurance Co., 2012 WL 3647484 *2 (N.D. Cal. August 23, 2012)(Cousins, USMJ).  As will be addressed later in this article, Mr. Opperman is an Expert who was retained by the Insurance Company to assist in the Insurance Company's investigation of this particular transformer damage claim.  The Magistrate Judge granted Century's Motion to Compel production in response to these two document requests, without limitations, giving two reasons for this ruling.  "First," said the Magistrate Judge, "the requests are limited to two damage claims and thus are readily retrievable and therefore not unduly burdensome.  Second, the claims files," even though they were claims submitted to other companies in the Allianz Group to which AGCS belonged and not to AGCS, "may be relevant as they connect to Opperman's opinions, which are relevant to Century's bad faith case."  Century Aluminum Co. v. AGCS Marine Insurance Co., 2012 WL 3647484 *3 (N.D. Cal. August 23, 2012)(Cousins, USMJ). 

            The third and final discovery request to be addressed here, was a single document request paraphrased by the Court as follows:  "Century seeks the time and billing records of surveyors and contractors ... that AGCS retained to assist in the investigation of the claim."  These were Experts "engaged by AGCS to investigate the transformer damage claim."  In other words, these persons are "surveyors and contractors that AGCS retained to assist in the investigation."    Century Aluminum Co. v. AGCS Marine Insurance Co., 2012 WL 3647484 *3 (N.D. Cal. August 23, 2012)(Cousins, USMJ).  The Court granted Century's Motion to Compel the requested production of "the time and billing records" of these particular "surveyors and contractors" who were retained by the Insurance Company to assist in performing the Insurance Company's investigation of the claim, finding that the requests for these "billing records are relevant and not unduly burdensome." Century Aluminum Co. v. AGCS Marine Insurance Co., 2012 WL 3647484 *3 (N.D. Cal. August 23, 2012)(Cousins, USMJ).

            In requiring the production of "time and billing records" of persons it previously described in the same opinion as Experts, the Court did not support its ruling with any citation of authority.  On its face, the ruling of the U.S. Magistrate Judge in this case is contrary to the settled rule in many jurisdictions, including in Florida, that discoverability of the billing records of Experts is very limited.  See generally 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 8:17 (Third Edition 2011, 2012 Supplement West Publishing Co); 2 id. § 12:18.

 

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More About Experts in Insurance Cases.

     Experts in Insurance Coverage and Insurance Bad Faith Cases are providing many opportunities for Judicial Decisions.  See 1 Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith"  §  8:17 (West Third Edition 2011, 2012 Supplement) (addressing reported cases involving issues of Expert Testimony in Third-Party Bad Faith Cases); 2 id.  § 12:18 (discussing case law developing around issues concerning reception of Expert Testimony in First-Party Insurance Bad Faith Cases).

      In TRAX, LLC v. Continental Cas. Co., 2012 WL 377042 *7 (N.D. Ill. August 29, 2012), Download TRAX, LLC v. Continental Cas. Co. (N.D. Ill. Amended Memorandum Opinion and Order Filed August 29, 2012) PUBLIC ACCESS, the issue was allocation.  The Policyholder, TRAX, settled an underlying lawsuit against it.  Continental refused to pay for it, contending that at least part of the settlement is attributable to a claim not covered by its Global Technology Errors & Omissions Policy.  (PACER, the online docket of the Federal Courts, reflects that Continental filed a Notice of Appeal on September 5, 2012).

     To say again, the issue was allocation:  How much of the underlying settlement, if any, was allocable to covered claims?  Continental relied on the Testimony of an Expert whose Opinion was that the underlying settlement should be apportioned 50-50 between covered and noncovered claims.  The District Court granted TRAX's Motion to Exclude the Continental Expert's Testimony, however.  TRAX's Motion was granted in part on the ground that the Expert in question never spoke to anyone who was at the Settlement Conference in the underlying case and the Expert did not "read the participants' depositions prior to preparing his written opinion."  Trax, LLC v. Continental Cas. Co., 2012 WL 377042 *7 (N.D. Ill. August 29, 2012).  [Emphasis added.]  The Court granted the Plaintiff's-Policyholder's Motion to Exclude the Testimony of Continental's Expert in this case on the ground that the Testimony was "irrelevant and appeared to not be based on sufficient information".  The Testimony therefore "failed to meet the requirements of Fed.R.Evid. 702."  Trax, LLC v. Continental Cas. Co., 2012 WL 377042 *7 (N.D. Ill. August 29, 2012).

     After making that ruling, the District Court held that TRAX met its burden of demonstrating that the "entire" underlying settlement "was covered by the Policy," whereas Continental had failed to show in this case "how," in the words of the District Court, "any of the policy exclusions it presents would be applicable and exclude coverage of the settlement."  Trax, LLC v. Continental Cas. Co., 2012 WL 377042 *7 (N.D. Ill. August 29, 2012).  [Emphasis added.]

The issue of allocating damages arises frequently in Insurance Cases and Expert Testimony is frequently offered on that important issue.  See, for example, the post here on March 8, 2012, which was one of 14 posts on Experts in Insurance Cases here and on Insurance Claims and Issues Blog in March, 2012.

   For an earnest post from the viewpoint of another litigator, see also Steve Groth, "Helping Your Expert Thrive in the Hot Seat" posted on September 5, 2012 on Insurance Blog.Bose Law Firm (Indiana).

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EXPERTS RETAINED FOR PARTIES MEDIATING, AND FOR MEDIATOR.

     The Maryland Mediation Construction Law Deskbook has put forward a suggestion directed at the complexities of construction mediation.  An Expert can be used to assist the parties at the joint session, and an Expert can also be used to advise a party privately during caucuses or breakout sessions.  J. Snowden Stanley, Jr., Robert L. Wright & Adrian L. Bastianelli, III, "Mediation, Arbitration and Other ADR Techniques," published as Chapter 16 of the Maryland Construction Law Handbook (2012), published by the Maryland Institute for Continuing Professional Education of Lawyers, Inc. © 2012 MSBA and © 2012 Thomson Reuters (subscription required).

     "An expert can also be used as a consultant to the mediator."  When the Mediator is not versed in the technical subject matter, "the solution may be for the parties to agree to hire an expert to advise the mediator or serve as a co-mediator."  Id.

     This suggestion is equally likely to be useful in Mediations involving complicated Insurance issues of Coverage or of Good Faith vs. Bad Faith.

 Mediation is a familiar subject particularly Mediation of Insurance issues.  The author is a Certified Florida Mediator for Appeals, Circuit Court litigation, and County Court cases.

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EXPERTS IN INSURANCE BAD FAITH CASES: TESTIMONY, REPORTS, DEADLINES.

     Experts in Insurance Bad Faith Cases are bound by the same rules, written and unwritten, that bind other Experts.  They will ultimately be expected to testify persuasively in Court.  An unpersuasive or worse yet, an Expert whose Trial Testimony seems to the Judge or the Jury as not based on reality, can be devastating to the party's own case.  See, e.g., Ocean View Towers Ass'n v. QBE Insurance Corp., 2012 WL 882577 *2 (S.D. Fla. March 15, 2012), Download Ocean View Towers Ass'n v. QBE Insurance Corp. (S.D. Fla. Order on Motion for New Trial Filed March 15, 2012) PUBLIC ACCESS, in which a Federal Judge denied a Plaintiff Condominium Association's Motion for New Trial in a breach of contract case against the Association's Insurance Company, after a Jury Verdict "finding no breach of contract" by the Insurance Company.  The Court in that case held that the "great weight of the evidence supports the jury's verdict" in favor of the Defendant Insurance Company, with the Court's main reason for that decision being the Trial Testimony of the "principal expert" of Policyholder Condominium Association.  The Expert "offered utterly incredible testimony concerning the amount [the Insurance Carrier] should have paid for [the Condominium Association's loss.  His varying estimates were all over the map, and he admitted on cross that he would say anything his client asked of him because '[t]hat's how I get paid.'...  This testimony was so bad that it prompted the Court to remark, outside the jury's presence, that 'I have been a Judge for a long time and I have heard a lot of witnesses and I must say that ... [the Expert in question] has to rate in the top [as] one of the worst witnesses as an expert I have ever heard.'"  OceanView Towers Ass'n v. QBE Insurance Corp., 2012 WL 882577 *2 (S.D. Fla. March 15, 2012), Download Ocean View Towers Ass'n v. QBE Insurance Corp. (S.D. Fla. Order on Motion for New Trial Filed March 15, 2012) PUBLIC ACCESS.

     Moreover, the Expert's Affidavit or sworn Report in the case should be the Expert's legally reliable foundation for admissible Testimony.  See, e.g., Sheffield Woods at Wellington Condo. Ass'n v. Scottsdale Ins. Co., 2011 WL 7069785 *1 (M.D. Fla. March 7, 2011)(record made it "difficult, if not impossible, for anyone to give a reliable opinion regarding the amount of damage to the Property that occurred in any one or more specific past years or periods," granting motion to preclude testimony by Expert "regarding his opinions as to the specific dollar amount of damage that occurred during any one or more specific years or period."), Download Sheffield Woods at Wellington Condo. Assn v. Scottsdale Ins. Co. (M.D. Fla. Case No. 8.09cv1148, Order Filed March 7, 2011) PUBLIC ACCESS; cf. Curatolo v. Allstate Ins. Co., 2011 WL 2116459 *4 (N.D. Ohio May 27, 2011)(witness's summary of other people's recorded statements failed "to satisfy the personal knowledge requirement" for any affidavit), Download Curatolo v. Allstate Ins. Co. (N.D. Ohio No. 5.10CV607, Memorandum of Opinon and Order Filed May 27, 2011) PUBLIC ACCESS.  The Federal Courts' online docket, PACER, reflects that an Order granting a stipulation for dismissal with prejudice was filed in the Sheffield Woods case on April 4, 2011, and that the Curatolo case was similarly dismissed with prejudice based on a settlement agreement, on June 10, 2011.

     The content of any Expert's Reports including "supplemental" Reports will not generally be permitted to take the place of compliance with Report requirements in the first place.  If the Expert must render a Report which addresses certain subjects required by Court Order or Rule, then it must do so or the Expert runs the risk of not being allowed to testify.  E.g., Kendall Lakes Towers Condo. Ass'n v. Pacific Ins. Co., 2011 WL 6372198 *5 (S.D. Fla. December 20, 2011)(Goodman, U.S.M.J.; allowing Expert who produced a "supplemental" Report which did not meet certain deadlines and requirements to testify, but only if lengthy and detailed proscribed conditions were met first), Download Kendall Lakes Towers Condominium Assn v. Pacific Ins. Co. (S.D. Fla. Case No. 10.24310, Order of USMJ Filed Dec. 20, 2011) PUBLIC ACCESS; Tadehara v. State Farm Mut. Auto. Ins. Co., 2011 WL 4048782 *6 & n.1 (D. Colo. Sept. 12, 2011)(late-filed Policyholder's "expert report prepared by ... an attorney[-Expert]," and late-filed Insurance Company's expert report also prepared by an attorney-Expert, both appearing to contain impermissible legal conclusions, were not considered on issue of reasonableness of Defendant Insurance Company's conduct), Download Tadehara v. State Farm Mut. Auto. Ins. Co. (D. Colo. No. 09.cv.02893, OpinIon and Order Filed Sept. 12, 2011) PUBLIC ACCESS.  PACER, the online docket of the Federal Courts, reflects that a stipulation for dismissal with prejudice after a settlement was filed on or about March 6, 2012 and that an Order of Dismissal was entered the following day in the Kendall Lakes case.

     Of course, the Expert in an Insurance Case should abide by the deadlines established by Court Order or by Rule.  Otherwise, the Experts or their Reports may be stricken by a Court ruling.  See House of Clean, Inc. v. St. Paul Fire & Marine Ins. Co., 2011 WL 2118633 *12-*13 (D. Mass. May 27, 2011)(motion to strike Plaintiff's Expert's "Third Expert Report" would be "allowed with respect to" the determination of the Insurance Company's Motion for Summary Judgment, which in turn was granted in part and denied in part; however, the Expert in question would be permitted to testify at Trial "on the condition that [the Plaintiff-Policyholder] makes [the Expert] available for a short, supplemental deposition at defendant's convenience and plaintiff's expense before [the Expert] testifies at trial."), Download House of Clean, Inc. v. St. Paul Fire and Marine Ins. Co. (D. Mass. No. 07.10839 Memorandum and Order Filed May 27, 2011) PUBLIC ACCESS.  PACER records a settlement and an Order of Dismissal in the House of Clean case, on or about August 16, 2011.

     To summarize the rulings in these cases, the same rules, written as well as unwritten, bind Experts in Insurance Cases that bind Experts in other kinds of cases.

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FOURTEEN FOR THE EXPERTS: NEW INSURANCE CASES THAT MAKE EXPERT WITNESS LAW ....

.... Lucky Thirteenth.

    In a change-of-pace, Insurance Claims and Bad Faith Law Blog and Insurance Claims and Issues Weblog have been trading consecutive posts addressing a single common theme:  14 total 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.

 

Hurricane Wilma Professional Engineer Expert Disallowed.*

*This same case was previously posted for other reasons on Insurance Claims and issues Web Log on March 7, 2012.

 

        In the case of Banta Properties, Inc. v. Arch Specialty Insurance Co.,  2011 WL 7118542 (S.D. Fla. December 23, 2011), Download Banta Props, Inc. v. Arch Specialty Ins. Co. (S.D. Fla. Case No. 10.61485, Order Granting Daubert Motion for Exclusion, Filed Dec. 23, 2011) PUBLIC ACCESS, the District Court disallowed a Plaintiff Property Management Company's proffered Expert.  The Expert in question is a Professional Engineer proffered to testify to Opinions "that Hurricane Wilma damaged windows and doors at Plaintiff's properties and as a result needed replacement."  Id. at *1.  The Defendant Insurance Company requested the Court to exclude her Expert Testimony on a number of different grounds.

        In pertinent part, the Professional Engineer Expert could not satisfactorily attribute the Plaintiffs' claimed Damages to their claimed cause, Hurricane Wilma, a crucial component of the Plaintiff's Coverage case.

       The Court "agrees that Mellinger was unable to attribute damage to Hurricane Wilma with any degree of certainty and that she used an unreliable methodology.  Therefore, the Court shall exclude her expert opinions."  Id. at *2.

        If an Expert is proffered on Damages in an Insurance Case, that Expert must ordinarily be prepared to testify to more than Opinions on the totality of Damages.  She should also be prepared and equipped to offer acceptable Opinion Testimony as to what caused those Damages, or suffer the risk of not being allowed to testify at all.

      Parenthetically, the exclusion of this Expert's Testimony does not appear to have harmed the Plaintiff''s case very much.  PACER, the online docket of the Federal Courts, reflects that the Jury returned a Verdict for the Plaintiff on January 30, 2012.  The Verdict includes the Jury's finding that $4,000,000.00 or $4 Million is the amount of the Plaintiff's covered Damages resulting from Hurricane Wilma.  On February 27, 2012, the Plaintiff filed a motion for entry of final judgment.

Part of a Series.  To be continued ....

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FOURTEEN FOR THE EXPERTS: EXPERTS IN 14 INSURANCE CASES ....

This case makes number 11.  Part of a continuing series.  The last post was on Insurance Claims and Bad Faith Law Blog on Tuesday, February 28, 2012.  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.

 

 

Totality of the Case:  Expert Can Testify Regarding Total Damages Only, Without Limitation to Any Part Thereof Which Might Actually be Covered by Insurance.

 

 

   In Sheffield Woods at Wellington Condominium Association, Inc. v. Scottsdale Insurance Co., 2011 WL 7069785 *1 (M.D. Fla. March 7, 2011), Download Sheffield Woods at Wellington Condo. Assn v. Scottsdale Ins. Co. (M.D. Fla. Case No. 8.09cv1148, Order Filed March 7, 2011) PUBLIC ACCESS, the Defendant Insurance Company argued that the Plaintiff Condominium Association "should be precluded from presenting expert testimony regarding the amount of damage to the Property," since the Plaintiff's experts could not tie the Damages down to a particular timeframe which would have fallen during the subject Policy Period.

 

The District Court disagreed with that position in this case.  The Plaintiff's Expert would not be precluded from testifying to Opinions about the total Damage incurred by the Plaintiff, even if, as the Court agreed, "that it would be difficult, if not impossible, for anyone to give a reliable opinion regarding the amount of damage to the Property that occurred in any one or more specific past years or periods".  Id.  PACER, the online docket of the Federal Courts, reveals that the parties filed a notice of settlement on March 10, 2011 and that the Court accordingly granted the parties' joint motion to dismiss with prejudice on April 4, 2011.

 

Part of a continuing series.  To be continued ....

 

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FOURTEEN FOR THE EXPERTS: NEW INSURANCE CASES THAT MAKE EXPERT WITNESS LAW ....

.... TWO MORE.

    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.

What Are "Impermissible Legal Conclusions," Exactly, to Which No Expert Witness Shall Ever be Allowed to Testify?

          In the case of Great American Insurance Co. v. Jefferson County Commission, 776 F. Supp. 2d 1252 (N.D. Ala. 2010), Download Great Am. Ins. Co. v. Jefferson County Comm'n (N.D. Ala. Case No. 2.08cv01687, Memorandum Opinion Filed Nov. 15, 2010) PUBLIC ACCESS, a Federal Judge ruled in ways that outline answers to this question.  The Court allowed an Insurance Company's vice president to testify about a broker's responsibilities because the vice president's testimony did not "purport to define ... legal obligations."  For that announced reason, the Federal Judge overruled an objection that the vice president's testimony "amounts to expert testimony."  Id. at 1260.  [Emphasis added.]

              In Nevels v. Deerbrook Insurance Co., 2011 WL 6304066 (E.D. Ky. December 16, 2011), Download Nevels v. Deerbrook Ins. Co. (E.D. Ky. Case No. 10-83, Memorandum Opinion and Order Filed Dec. 16, 2011) PUBLIC ACCESS, an Attorney was not allowed to offer Expert Opinion Testimony to the extent it was based on legal conclusions, but the Court's ruling is somewhat obscured by its further rulings that in that particular case, the Attorney in question was not allowed to testify to Opinions based on an application of an incorrect standard of Kentucky Bad Faith Law in that Bad Faith case in Kentucky.  Id. at *3 (holding that Attorney "cannot offer an opinion on whether Deerbrook acted in bad faith because he has neither any expertise in nor a complete understanding of Kentucky bad faith law."); id. at *5 (ruling that Attorney "cannot opine on whether Deerbrook acted in bad faith because his testimony demonstrates that he does not understand Kentucky bad faith law.").

      Perhaps the clearest explication of the Court's ruling came at the beginning of the Court's Opinion in this case:  The Plaintiff retained the Attorney-Expert "as an expert in bad faith law and insurance claims handling.  Based on [the Attorney's] testimony at the Daubert hearing, he may opine on what Deerbrook Insurance Company's initial settlement offer to Nevels should have been, but he cannot take the next step and state that Deerbrook acted in bad faith.  This is because [the Attorney-Expert] does not sufficiently understand Kentucky bad faith law."  Id. at *1.

Part of a Series.  To be continued ....

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FOURTEEN FOR THE EXPERTS: NEW INSURANCE CASES THAT MAKE EXPERT WITNESS LAW ....

.... TWO MORE:  ELECTRONIC FILING, AUTHENTICATION, AND GENUINE ISSUES OF MATERIAL FACT.

    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 Witness Testimony:  Where Electronic Filing is Required, File Electronically; Authentication is Required in All Courts for All Exhibits.

   Where Exhibits to an Expert's Affidavit or Report are required to be electronically filed by Local Rule, but are not, the Exhibits may be stricken especially where they have not been authenticated.  References in reliance on those Exhibits in the Expert's Report and in pleadings are subject to being stricken as well upon the same grounds.  Such rulings came in an Insurance Case in which two Counts were alleged against the  Defendant Insurance Company:  Breach of the "individual disability income" Insurance Policy, and alleged breach of Good Faith and Fair Dealing, in Bonenfant v. Standard Insurance Co., 2011 WL 3904300 *3 (E.D. Cal. September 6, 2011), Download Bonenfant v. Standard Ins. Co. (E.D. Cal. Case No. CIV S.10.0361, Order Filed September 6, 2011) PUBLIC ACCESS.  In this Order, the District Court granted the Defendant Insurance Company's Motion for Partial Summary Judgment on the Plaintiff's Bad Faith Claim.  This Order, as noted, was entered on September 6, 2011.  The next day, the Plaintiff filed a Notice of Settlement, according to PACER, the Online Docket for this Federal Court case.  At the end of that same month, on September 29, 2011, the Court entered a 'minute order' dismissing the entire case with prejudice, each side to bear its own attorney's fees and costs.

 

  Expert Witness Testimony May Provide a Jury Question on Bad Faith Denial of Insurance Coverage.

    Expert Testimony on Hurricane Ike Wind Damage, or not, provided a Jury Question on Bad Faith Denial (or not) of all Insurance Coverage under a "wind and hail" Commercial Insurance Policy, precluding Summary Judgment, in Beaumont Preservation Partners, LLC v. International Catastrophe Insurance Managers, LLC, 2011 WL 6707287 *12 (E.D. Tex. October 6, 2011)(Hawthorn, USMJ), Download Beaumont Preservation Ptrs., LLC v. International Cat. Ins. Mgrs., LLC (E.D. Tex. Case No. 1.10CV548, Report and Recco of USMJ Filed Oct. 6, 2011) PUBLIC ACCESS, report and recommendation adopted, 2011 WL 6709920 (E.D. Tex. December 21, 2011), Download Beaumont Pres. Ptrs., LLC v. International Cat. Ins. Mgrs., LLC (E.D. Tex. Case No. 1.10CV548, Order of USDJ, Filed Dec. 21, 2011) PUBLIC ACCESS.

   The Expert who filed the Report in question is a lawyer "who is experienced in cases involving insurance disputes."  2011 WL 6702787 at *12.

Part of  a Series.  To be continued ....

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FOURTEEN FOR THE EXPERTS: 14 NEW INSURANCE CASES THAT MAKE EXPERT WITNESS LAW.

   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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Hurricane Winds, Conflicting Expert Testimony, Bad Faith Jury Question.

   In Beaumont Preservation Partners, LLC v. International Catastrophe Insurance Managers, LLC, 2011 WL 6707287 *6-*9,  *9 (E.D. Tex. USMJ Report and Recommendations Filed October 6, 2011), Download Beaumont Preservation Ptrs., LLC v. International Catastrophe Insurance Mgrs., LLC (E.D. Tex. Report and Recco of USMJ Oct. 6, 2011) PUBLIC ACCESS, a U.S. Magistrate Judge in Texas recommended, id. at *9, that the Federal District Judge rule that differing Expert Testimony on the existence and extent of Hurricane Ike Wind Damage, provides a Jury Question on Bad Faith Denial of a Commercial First-Party Property Claim.

   The Federal District Judge recently agreed with this recommendation and adopted the Magistrate Judge's Report, in  2011 WL 6709920 (E.D. Tex. December 12, 2011, Order of U.S. District Judge Adopting Report and Recommendation of USMJ).

   In other words, the conflicting evidence available on the underlying claim for Coverage in this peculiar case made the Bad Faith Claim a Jury Issue in this case.

   This was one of many interesting rulings and recommendations in this Texas case.  Some will be posted further here and on Insurance Claims and Issues Web Log.

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FLORIDA EXPERTS AND STATUTORY BAD FAITH NOTICE "AMBIGUITY" ISSUE.

    A Federal Court in Florida has held that a Lawyer should be allowed to testify as an Expert Witness on the issue of whether a Notice of Intent to sue an Insured-Hospital was "ambiguous".  Download Ziolkowski v. Landmark American Insurance Co. (M.D. Fla. Case No. 8.09cv776, Order Filed August 24, 2011) PUBLIC ACCESS,  also published as 2011 WL 37150580 *2 - *3 (M.D. Fla. August 24, 2011)(authorized password required to access Westlaw).  The Notice of Intent is required by a Florida Statute, which is not cited in the Court's opinion.  (It is worth noting, however, that the Plaintiff in this case is the Personal Representative of the Estate, which sued the Insured-Hospital under an agreement not to execute or what some Courts in Florida call a Coblentz agreement.  Id. at *2 n.2.)

    Florida's so-called Bad Faith Statute, F.S. § 624.155, similarly requires a Statutory Notice.  No person may sue under Section 624.155 without first providing the Insurance Company with a Civil Remedy Notice of Insurer Violation in compliance with the Statute.  The Statute requires that the Notice be stated "with specificity."  F.S. § 624.155(3)(b).  The intent behind this provision is to afford the Insurance Company with an opportunity to cure the violation alleged in the Notice.

    This statutory requirement is a condition precedent to suing under Section 624.155.  Courts in Florida are dismissing Bad Faith cases in which the required Civil Remedy Notice, "CRN," or "CRNI," is found by the Courts not to be sufficiently specific.  For example, a Civil Remedy Notice which set forth "'claim delay,' 'claim denial,' 'unfair trade practice,' and 'unsatisfactory settlement offer' without further elaboration" was held to be legally insufficient and could not withstand a Motion to Dismiss on that ground in a case of alleged Third-Party Bad Faith involving multiple claims and claimants.  The "recitations" which have just been quoted formed the bulk of the Civil Remedy Notice in that particular case, although other words were stated in the Notice.  "These uninformative recitations do not meet the requirements of § 624.155 because they do not specifically inform the insurer of the facts underlying the alleged violations or the corrective action that the insurer needed to take to remedy the alleged violations."  Download Rousso v. Liberty Surplus Insurance Corp. (S.D. Fla. Case No. 10cv20554, Order on Motion to Dismiss Filed August 13, 2010) PUBLIC ACCESS, also published as 2010 WL 7367059 *4 (S.D. Fla. August 13, 2010)(decision just released on Westlaw; authorized password required to access Westlaw).

   In sum, the Federal Court held that the statutory condition precedent of Notice was not fulfilled and the statutory action must therefore be dismissed in that case:  "As indicated above, the Plaintiffs' civil remedy notice also falls short because it fails to inform the Defendant about how it can fix the alleged violations.  A proposed solution is not only required under the statute, but particularly necessary in this atypical case where the insurance claim consists of many third-party claims arising at different times that collectively far exceed the policy limits."  Id. at *5.

   No case has yet been found in which Expert Testimony has been proffered, let alone admitted, in a Bad Faith Case under Florida Statute Section 624.155 concerning whether a Civil Remedy Notice is "ambiguous" or whether it actually provides reasonable notice.  It may be only a matter of time until the first such case is reported.

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California Fire Coverage Exclusion, Summary Judgment on Good Faith.

   In Download Bishara v. Century Surety Co. (C.D. Cal. Case No. EDCV 09.01745, Order Filed April 6, 2011) PUBLIC ACCESS, also published as 2011 WL 1334406 (C.D. Cal. April 6, 2011)(authorized password required to access Westlaw), three rulings in particular deserve to be highlighted.  This is a case in which the Insurance Company issued a Policy which provided Coverage for loss  by Fire, but in which the Insurance Company denied all Coverage under an Exclusion for loss or damage caused by or resulting from a dishonest or criminal act by or on behalf of the Insured, among other provisIons.

   The Federal Court applied California Law and granted the Defendant Insurance Company's Motion for Summary Judgment of Good Faith, holding in pertinent part:

1. The Court held that the Exclusion was properly applied by the Insurance Company to deny all Coverage, carefully pointing out that in doing so, "the Court does not opine or make any findings as to whether Swidan actually set fire to the Restaurant.  Rather, the Court finds only that the uncontroverted evidence satisfies Defendant's burden of demonstrating there is an absence of evidence establishing Defendant breached the Policy" by denying Plaintiff's Coverage Claim.  Bishara v. Century Surety Co., 2011 WL 1334406 at *9.
2. As there was no Coverage, there could be no Bad Faith in this case under California Law, the Federal Court concluded.  Id. at *10.
3. Even if there could be a legally cognizable Bad Faith Claim in this case, said the Federal Court, California law would still impel the grant of Summary Judgment to the Insurance Company because of the California "genuine dispute" rule.  In this case, the Insurance Company relied on the Report of an Expert as to the cause of the Fire Loss in question before the Insurance Company denied all Coverage for the Fire Loss.  Under the California "genuine dispute" rule, Coverage may be genuinely disputed on the basis of "'a single, thorough report by an independent expert'".  Id. at *11.  So it was in this case.

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Bad Faith Expert Excluded, Bad Faith Not Determine Contract Breach.

   An Expert Witness who offered only Bad Faith Testimony was excluded from testifying in a solely Breach of Contract Case, in Royal Bahamian Ass'n v. QBE Insurance Corp., Download Royal Bahamian Ass'n v. QBE Insurance Corp. (S.D. Fla. Case No. 10.21511, Omnibus Order of U.S.M.J. Goodman, Filed October 25, 2010) PUBLIC ACCESS also published as 2010 WL 4179312 (S.D. Fla. October 25, 2010)(Goodman, U.S.M.J.), a case filed in May, 2010 that has already offered many opportunities for Insurance and Expert Witness rulings.

   The Magistrate Judge in this case involving Florida substantive law, applied the settled rule that "evidence of an insurance company's claims handling procedures is irrelevant to the determination of coverage and damages.  [Citations omitted.]  These procedures are only relevant to a claim of bad faith."  Royal Bahamian Ass'n v. QBE Insurance Corp., 2010 WL 4179312 at *1.

   This case involved only a Breach of Contract Claim.  "Evidence pertaining to QBE's handling of the claim at issue, and indeed all other handling practices and claims, is irrelevant."  Id. at *2.

   For these reasons, the Court in this case also granted the Defendant Insurance Company's Motion in Limine in this regard, to Prevent Plaintiff from Presenting Any Evidence or Testimony Regarding Alleged Bad Faith, Lack of Good Faith or Improper Claims Handling or Claim Practices of QBE or Its Representatives with Regard to this Claim ....  See id. at *1, *3 & n.1.

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Cumulative Expert Testimony Accumulates AT Trial, NOT Before, Magistrate Holds.

   A United States Magistrate Judge has held that it is really most appropriate to object to an opposing party's Expert Witness Testimony as "cumulative," when that Testimony is introduced at Trial.  Before Trial, it is not really cumulative because it has not happened yet and the United States District Judge may make her or his own ruling at Trial when the Testimony is introduced.  See Royal Bahamian Ass'n v. QBE Insurance Corp., Download Royal Bahamian Ass'n v. QBE Insurance Corp. (S.D. Fla. Case No. 10.21511.CIV, Order Filed October 21, 2010))PUBLIC ACCESS; Magistrate Judge's Preliminary Order on Motion in Limine to Exclude And/Or Limit Cumulative Expert Testimony), also published as 2010 WL 4225947 *1-*3 (S.D. Fla. October 21, 2010)(Goodman, U.S.M.J.; case involved Coverage Claims for Hurricane Wilma Damage), in which the Magistrate Judge cited several Bad Faith Cases in explaining the operation of the "Cumulative Expert Testimony" objection in Federal Court.

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"Hired" Expert 50 or 60 Times Not Enough ...

... to Demonstrate Bad Faith Bias, Court Rules.

  The holding in the following case deserves a lot of emphasis.

   Worth Bargain Outlet, Inc. v. AMCO Insurance Co., Download Worth Bargain Outlet, Inc. v. AMCO Insurance Co. (S.D. Cal. Case No. 09.cv.839, Order Filed July 21, 2010) FREE ACCESS OFFICIAL REPORT also published as 2010 WL 2898264 *11 (S.D. Cal. July 21, 2010)(Westlaw subscription required to access Westlaw), is a case which involved alleged First-Party Bad Faith.  In Worth Bargain Outlet,  a Plaintiff-Policyholder which suffered a fire loss argued that one of the grounds for its alleged Bad Faith Claims was that the Defendant Insurance Company "'dishonestly selected its experts' and those 'experts were unreasonable' in their investigation of Plaintiff's claim."  The one and "only argument Plaintiff puts forth to suggest a biased investigation is the fact that [Defendant's Expert] was hired 20 times by Defendant before Plaintiff's claim, and 30 to 40 times since."  [Emphasis added.]  The Worth Bargain Outlet Court held that this was not enough by itself either to show bias or to demonstrate a basis for a First-Party Bad Faith Claim.  Worth Bargain Outlet, 2010 WL 2898264 at *11.

   The Online Docket of this Federal Case on Pacer reflects a Notice of Settlement, filed on August 20, 2010.

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Money, Money Everywhere, And Not a Drop for Independent Research.

   "Independent research is being squeezed by federal agencies on one side and BP on the other."  Dr. Harriet M. Perry, Gulf Coast Laboratory, Ocean Springs, Mississippi, quoted by Shaila Dewan, New York Times, Monday, September 13, 2010.

   Government agencies and BP have used all the money currently available for research either to investigate the causes of the Oil Rig Explosion and the Oil Spill, or to build up BP's legal defense against resulting Claims.  See Shaila Dewan, "The Spill's Money Squeeze/Scientists Say Lack of Cash is Hindering Research on Environmental Impact" p. A19, col. 1 (New York Times Nat'l ed., Monday, September 13, 2010).  The effect is to concentrate the power to hire and pay for most if not all of the research on those subjects, in the hands of a few Government Agencies and BP:

   The only federal agency to distribute any significant grant money for oil spill research, the National Science Foundation, is out of money until the next fiscal year begins Oct. 1.  The Environmental Protection Agency, which has only $2 million to give out, is still gearing up its program.  A $500 million initiative for independent research promised by BP, which was to be awarded by an international panel of scientists, has become mired in a political fight over control.  State agencies, too, are stymied.

Id.  The researchers frozen out include scientists at the University of South Florida and at Louisiana State University.  But not those hired by BP.  Id.

   Whether and when Claimants, Potentially Responsible Parties, potential Defendants and their Insurance Companies (aside from BP and presumably, BP's Insurers), and anyone other than Government Agencies and BP will have access to reliable scientific research into the causes and effects of the Gulf Coast Oil Catastrophe, remains to be seen.

  The Insurance Questions including Business Interruption Coverage Issues posed by the Gulf Coast Oil Catastrophe, have largely been experienced before, in general terms.  They have generally been addressed by many Courts, in many decided Cases including past cases involving Catastrophe Claims.  Dennis Wall is Co-Author of the leading book on Insurance Coverage for Catastrophe Claims, "CATClaims:  Insurance Coverage for Natural and Man-Made Disasters" (West Publishing Company 2008; 2010 Supplement in process).  Mr. Wall will be a featured speaker on several panels which will address the BP Oil Spill Catastrophe, and other Catastrophes which have recently given rise to Damages Claims and Insurance Claims.  On September 15, 2010, he will be a featured speaker on a panel addressing "BP Oil Spill Damages Claims:  The Coverage Predicates" at the September 15, 2010 Seminar of the Insurance Law Committee sponsored by the Orange County Bar Association in Orlando, Florida.   Mr. Wall will speak on a panel at the American Conference Institute's Bad Faith Litigation Conference in Orlando, Florida on November 30, 2010 on "Dealing With Catastrophic Disasters:  How to Properly Investigate and Handle Overwhelming Claims".  The American Conference Institute is offering a discount to readers of this Blog:  Download ACI Advises Readers of the Insurance Claims and Issues and Insurance Claims and Bad Faith Law Blog are entitled to a discount.

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Expert Witnesses Allowed, Barred in Insurance DJ Over "Catastrophic Failure".

   The City of Chicago filed a Federal Declaratory Judgment Action against Westchester Insurance Company claiming Coverage for a "catastrophic failure" of an uninterruptible power supply ("UPS") which allegedly caused the City's entire 911 system to fail, in City of Chicago v. Westchester Fire Insurance Co., Download City of Chicago v. Westchester Fire Insurance Co. (N.D. Ill. Case No. 08C5535, Opinion and Order Filed September 1, 2010) PUBLIC ACCESS also published as 2010 WL 3516066 (N.D. Ill. September 1, 2010)(Westlaw subscription required to access Westlaw).

   In an illuminating Opinion that prefigures the same or similar Expert Witness issues in Insurance Cases yet to come involving Catastrophic Claims, the Federal Court denied Westchester Fire's motion to bar the Expert Witness Testimony of two witnesses as based on an incorrect methodology and as "speculative".  The Court held with respect to both Experts that their methodology was acceptable under Federal Expert Witness standards, and that their Reported Testimony and Opinions were not "speculative".  City of Chicago v. Westchester Fire Insurance Co., 2010 WL 3516066 at *7-*8.  One of these two Experts noted in his Report that the UPS system experienced a "catastrophic failure".  Id. at *7.  The Court noted in particular that this Declaratory Judgment Action will proceed to a Bench Trial.  Id. at *7.

   The City of Chicago also filed a Motion to Disqualify an Expert Witness in that case.  The City's Motion was granted in part as to Westchester Fire's Expert's proferred Opinions "related to the replacement of the UPS" because the Expert in question was simply not qualified "to testify about the City's decisionmaking process" regarding replacement of the UPS.  Id. at *6.  On the other hand, the City's Motion to Disqualify was denied regarding the proferred Testimony of this same Expert "as to his opinion that the City's temporary power system was a disproportionate response to the incident."  Id.

   These and similar issues as to the reception or rejection of various Expert Witness Opinion Testimony will arise again, in Insurance Cases pending and yet to be filed as a result of many Catastrophe Claims resulting from the Gulf Oil Explosion Disaster, and from other Catastrophes as well.

  The Insurance Questions including Business Interruption Coverage Issues have largely been experienced before, and they have in general terms been addressed by many Courts, in many decided Cases.  Dennis Wall is Co-Author of the leading book on Insurance Coverage for Catastrophe Claims, "CATClaims:  Insurance Coverage for Natural and Man-Made Disasters" (West Publishing Company 2008; 2010 Supplement in process).  Mr. Wall will be a featured speaker on several panels which will address the BP Oil Spill Catastrophe.  On September 15, 2010, he will be a featured speaker on a panel addressing "BP Oil Spill Damages Claims:  The Coverage Predicates" at the September 15, 2010 Seminar of the Insurance Law Committee sponsored by the Orange County Bar Association in Orlando, Florida.   Mr. Wall will speak on a panel at the American Conference Institute's Bad Faith Litigation Conference in Orlando, Florida on November 30, 2010 on "Dealing With Catastrophic Disasters:  How to Properly Investigate and Handle Overwhelming Claims".  The American Conference Institute is offering a discount to readers of this Blog:  Download ACI Advises Readers of the Insurance Claims and Issues and Insurance Claims and Bad Faith Law Blog are entitled to a discount.

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First-Party Statutory Bad Faith Claim, and No Preemption: Court.

   Two holdings are of importance in the recent decision in the Federal Case of Cieplinski v. State Farm Mut. Auto. Ins. Co., Download Cieplinski v. State Farm Mutual Auto. Insurance Co. (M.D. Pa. Case No. 3.10.CV.1093, Memorandum Opinion Filed July 26, 2010) FREE ACCESS OFFICIAL REPORT also published as 2010 WL 2926846 (M.D. Pa. July 26, 2010)(Westlaw subscription required to access Westlaw):

   1.  The Plaintiff stated "a cause of action" for Statutory Bad Faith under 42 PA. CONS. STAT. § 8371 where she based her Claim on allegations that the Defendant Insurance Company refused to pay her medical claims for chiropractor bills because of allegedly biased peer review.  "Plaintiff has alleged that State Farm denied her first party medical benefits by using the same peer reviewer on multiple occasions and in the face of Plaintiff's treating chiropractor's recommendations that she treat two (2) or three (3) times per month for the rest of her life....  As such, Plaintiff has properly alleged a cause of action for bad faith pursuant to" the Pennsylvania Statute.  The Federal Court denied State Farm's Motion to Dismiss this Claim accordingly.  Cieplinski, 2010 WL 2926846 at *3.  [Emphasis added.]  (Compare the emphasized language from the Cieplinski holding in this regard, with Worth Bargain Outlet, Inc. v. AMCO Insurance Co., Download Worth Bargain Outlet, Inc. v. AMCO Insurance Co. (S.D. Cal. Case No. 09.cv.839, Order Filed July 21, 2010) FREE ACCESS OFFICIAL REPORT also published as 2010 WL 2898264 *11 (S.D. Cal. July 21, 2010)(Westlaw subscription required to access Westlaw), also a case of alleged First-Party Bad Faith.  In Worth Bargain Outlet,  a Plaintiff-Policyholder which suffered a fire loss argued that one of the grounds for its alleged Bad Faith Claims was that the Defendant Insurance Company "'dishonestly selected its experts' and those 'experts were unreasonable' in their investigation of Plaintiff's claim."  The one and "only argument Plaintiff puts forth to suggest a biased investigation is the fact that [Defendant's Expert] was hired 20 times by Defendant before Plaintiff's claim, and 30 to 40 times since."  [Emphasis added.]  The Worth Bargain Outlet Court held that this was not enough by itself either to show bias or to demonstrate a basis for a First-Party Bad Faith Claim.  Worth Bargain Outlet, 2010 WL 2898264 at *11.)

   2.   Of particular interest to practitioners in Pennsylvania, the Federal Court in Cieplinski revisited one of its own previous decisions and held that a First-Party Statutory Bad Faith Cause of Action under 42 PA. CONS. STAT. § 8371 is not entirely preempted by the strictures of 75 PA. CONS. STAT. § 1797.   In the Cieplinski case, as a result, the Plaintiff-Policyholder was allowed to proceed on her Section 8371 claim where she alleged "that State Farm has abused the peer review process by hiring a peer reviewer that it knew had previously provided negative reports regarding Plaintiff's treatment."  Cieplinski, 2010 WL 2926846 at *3.  "Thus, Plaintiff's bad faith claim survives only to the extent that she is alleging that State Farm abused the peer review process by hiring a peer reviewer that would give a biased determination."  Id.  The Plaintiff would not, however, be allowed to proceed with a Section 8371 Claim to the extent that she based her Claim "on failure to conduct a reasonable investigation, evaluate coverage, or promptly notify her of a denial of first party benefits," which are preempted by Section 1797.  Id.

Timely Investigation and Evaluation plays a major role in preventing and litigating First-Party Bad Faith Claims, and they are both addressed in particular in § 9:7, Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill First Edition; West Publishing Company Second Edition and 2010 Supplement).  Preemption of First-Party Bad Faith Claims, whether Statutory or filed at Common Law, are addressed in particular in § 9:16, id.

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POSTSCRIPT OF SEPTEMBER 2, 2010:  PACER, the Online Docket of the Federal Courts, reflects that a Notice of Settlement was filed in the Worth Bargain Outlet Case in the Southern District of California, on August 20, 2010.

Of "Percipient Fact" Federal Witnesses & Iowa Bad Faith Insurance Experts.

   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" §§ 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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Enlargement of Time Good Faith Request for Expert Report Granted.

   In Catalano v. Cohen & Grigsby, P.C., Download Catalano v. Cohen & Grigsby, P.C. (M.D. Fla. Case No. 2.08cv667, Opinion of United States Magistrate Judge Filed May 25, 2010) also published as 2010 WL 2103460 (M.D. Fla. May 25, 2010)(Westlaw subscription required to access Westlaw)(not an Insurance case), a United States Magistrate Judge granted a request for enlargement of time to file a so-called supplemental Expert Report.  The deadline in that case to disclose Expert Reports was April 1, 2010.  The requested enlargement of time was filed after that date.  The Expert Report was apparently available at the deadline for disclosure of Expert Reports, and the moving party's Counsel demonstrated to the Court's satisfaction that the nondisclosure was "inadvertent" and unintentional.

   Trial is not set to take place until the case is reached on a docket that starts on January 3, 2011.  In that case, the Magistrate Judge deemed the request for enlargement in Good Faith and it would not cause prejudice to the nonmoving party.  Catalano, 2010 WL 2103460 at *1.

   For good measure, the Magistrate Judge allowed "sixty (60) days for the Defendant to review the supplemental expert report and conduct any discovery necessary, and to file a rebuttal expert [report] if deemed appropriate."  Id. at *2.

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Property Insurance Claims Handling Issues for Expert Witnesses.

   I have been fortunate in having two articles released for publication at the same time.  I am already making one of them available to you, on another site, and with this post I am making the other article available to you as well, "Expert Witnesses on the Handling of Property Insurance Claims," published in the April, 2010 issue of The Briefs.  Here is your copy:  Download Expert Witnesses on the Handling of Property Insurance Claims.OCBA Briefs.0410.  (Copyright Dennis J. Wall 2010.  All rights reserved.  No Reproduction or any other use of this material may be made for commercial purposes.)

   I hope that you will find this to be useful and productive.

You may also be interested in the posts on this subject on Insurance Claims and Issues Web Log.  Please Read The Disclaimer.

Lawyer-Expert's Legal Conclusions, Understanding of Bad Faith Law Attacked: ...

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   ... No Such Opinions Allowed by Federal Court in Bad Faith Case Under Florida Law.

   A lawyer-Expert Witness was proffered to testify to what the Federal Court listed as six (6) Opinions on issues in a relatively new decision in Download Kearney v. Auto-Owners Insurance Co. (M.D. Fla. Opinion Filed November 5, 2009), also published as Kearney v. Auto-Owners Insurance Co., 2009 WL 3712343 *3 (M.D. Fla. November 5, 2009)(subscription required to access Westlaw).  The Policyholder-Plaintiff in that Bad Faith Case under Florida Law filed a motion to exclude these Opinions as "legal conclusions" and because allegedly "they are based on an incorrect understanding of the law," in pertinent part.

   The lawyer-Expert was allowed to testify to two (2) of his 6 Opinions.  For ease of reference, the four Opinions identified by the Court as impermissible legal conclusions in that Insurer Bad Faith Case are italicized in the following list taken straight from the Court's Opinion:

(1) that [the Excess UM Carrier-Defendant] did not violate Florida Statute § 624.155 [Florida's so-called Bad Faith Statute];

(2) that an insurer does not have a duty to pay a claim until there has been a determination [by the insurance company] of coverage and damages;

(3) that [the Policyholder-Plaintiff's] amended complaint should be dismissed;

(4) that [the Policyholder-Plaintiff's] Civil Remedy Notice was premature;

(5) that [the Excess UM Carrier-Defendant] acted in good faith when it paid the $5 million policy limits; and

(6) that [the Carrier-Defendant's] failure to pay the policy limits within sixty days after [the Policyholder-Plaintiff] filed the Civil Remedy Notice was not bad faith and did not violate Florida Statute § 624.155.

Kearney v. Auto-Owners Insurance Co., 2009 WL 3712343 *3 (M.D. Fla. November 5, 2009).  [Italics added as noted; 16-pitch material added to reflect the Court's ruling to edit and thus render this particular  Opinion permissible and not a legal conclusion.]

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Good Faith Insurance Experts' Opinions Allowed in Federal Case.

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   In Download Kearney v. Auto-Owners Insurance Co. (M.D. Fla. Opinion Filed November 5, 2009), also published as Kearney v. Auto-Owners Insurance Co., 2010 WL 3712343 *10 (M.D. Fla. November 5, 2009)(subscription required to access Westlaw), the Court summarized its holding on the admissibility of Expert Witness Opinion Testimony in Good Faith-Bad Faith Insurance Cases.  The following summary came in the course of denying a Defendant Excess UM Insurance Company's motion to exclude such testimony by the Plaintiff-Policyholder's Experts, but the Court's summary of its holdings applies equally to Experts proffered by Insurance Company Defendants:

   This case involves the issue of whether [the Defendant-UM Excess Carrier] acted in bad faith in its handling of [its Policyholder's] claim.  While the Court agrees that [the Policyholder's] experts cannot testify that [the Defendant-UM Excess Carrier] "acted in bad faith," as that would be an inadmissable [sic] legal conclusion, the experts may give their opinion regarding what ordinary and reasonable claims handling practices consist of and whether or not [the Defendant-UM Excess Carrier] complied with those standards.

[Emphasis added.]

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"Motive and State of POLICYHOLDER'S ATTORNEY'S Mind" Relevant ...

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   ... TO CLAIM OF ALLEGED BAD FAITH IN SETTLEMENT "ISSUE OF WHETHER THERE WAS REALLY A REALISTIC POSSIBILITY OF SETTLEMENT."  Download Kearney v. Auto-Owners Insurance Co. (M.D. Fla. Opinion Filed November 5, 2009), also published as Kearney v. Auto-Owners Insurance Co., 2009 WL 3712343 *3 (M.D. Fla. November 5, 2009).

   After repeating this holding that was reached in previous cases decided under Florida Insurer Bad Faith Law, the Court noted its agreement "that such evidence is relevant and would not be pure speculation".  Nonetheless, the Court also advised the parties that it preferred to wait until the actual Trial, at which time specific objections could be made and ruled upon.  The Court in this case accordingly denied the Policyholder's motion to exclude the Opinion Testimony of Expert Witnesses regarding motives or state of mind, in which the Policyholder announced his anticipation that the defendant insurance company "will attempt to introduce expert testimony regarding the motives of his counsel".  Kearney v. Auto-Owners Insurance Co., 2009 WL 3712343 *3 (M.D. Fla. November 5, 2009).  [Emphasis added.]

There is an interesting post on Insurance Claims and Issues Web Log on March 25, 2010 which addresses Expert Witnesses in Insurance Cases.

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Expert Witness Testimony in Insurance Case in Federal Court.

   A Policyholder's Meteorologist Expert "shall be limited to his expertise as a meteorologist," it was held in Download King Cole Condominium Ass'n v. QBE Insurance Corp. (S.D. Fla. Opinion Filed December 2, 2009), attached Official Slipsheet Opinion at 3.  This is the full holding of the Federal Court in this regard:

Defendant specifically wants to preclude testimony by Mr. Branscome regarding damages to the building resulting from Hurricane Wilma or that Hurricane Wilma was a costly hurricane.  The Court finds that Dr. Branscome may not testify regarding damages resulting from Hurricane Wilma.  Dr. Branscome's testimony shall be limited to his expertise as a meteorologist.

Download King Cole Condominium Ass'n v. QBE Insurance Corp. (S.D. Fla. Opinion Filed December 2, 2009), at 3.  [Emphasis added.]

   More recently, in another ruling in the same case, the Plaintiff Policyholder's roofing contractor Expert Witness "should be precluded from testifying regarding meteorological conditions or data."  Download King Cole Condominium Ass'n v. QBE Insurance Corp. (S.D. Fla. Opinion Filed January 5, 2010), attached Official Slipsheet Opinion at 6.  [Emphasis added.]

Evidentiary and Discovery issues addressed by the Courts concerning Expert Witness Testimony in Insurance Cases are addressed by Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" § 8:17 (Third-Party Cases) and § 12:18 (First-Party Cases) (Second Edition Shepard's/McGraw-Hill; 2009 Supplement West Publishing Company), including issues arising in general in Insurance Cases in which Dennis Wall is frequently retained to provide Expert Witness Services.

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