Jelinek v American National Property and Casualty Co, No. 2:2015cv00779 - Document 149 (W.D. Wash. 2019)

Court Description: ORDER granting in part and denying in part Parties' Motions in Limine (Dkt. ## 137 , 138 , 139 ). Signed by Judge Richard A. Jones.(MW)

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Jelinek v American National Property and Casualty Co Doc. 149 1 HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 RUTH JELINEK, Plaintiff, 10 11 12 13 14 Case No. 2:15-cv-00779-RAJ v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, DBA ANPAC Insurance Company, a foreign corporation, ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES’ MOTIONS IN LIMINE Defendant. 15 16 17 I. INTRODUCTION 18 This matter is before the parties’ motions in limine. Dkt. ## 137, 138, 139. For the 19 reasons below, the Court GRANTS in part, DENIES in part, and TAKES UNDER 20 ADVISEMENT the parties’ motions. 21 II. BACKGROUND 22 Plaintiff Ruth Jelinek is the policyholder of an automobile insurance agreement with 23 Defendant American National Property and Casualty Co. (“ANPAC”). Her insurance 24 policy includes $10,000 in medical payments (“MedPay”) coverage and $100,000 in 25 underinsured motorist (“UIM”) coverage. Dkt. # 1-1 at 11. On October 31, 2012, Jelinek 26 was involved in a car accident caused by another motorist. She reached a settlement with 27 the at-fault motorist for $100,000. She also filed a claim for MedPay and UIM coverage 28 ORDER – 1 Dockets.Justia.com 1 with ANPAC. ANPAC paid the $10,000 limit of her MedPay coverage, but declined to 2 pay the limit of her UIM coverage. Jelinek later filed this action, alleging ANPAC 3 committed tort violations and breach of contract by mishandling her claim for UIM 4 coverage. Her claims for breach of the duty of good faith and fair dealing and for violations 5 of the Washington Insurance Fair Conduct Act (“IFCA”) and the Washington Consumer 6 Protection Act (“CPA”) (hereinafter, the “extracontractual claims”) were dismissed on 7 summary judgment. Dkt. # 66. 8 After trial on the breach of contract claim, Jelinek appealed from the Court’s order 9 granting summary judgment in favor of ANPAC on her extracontractual claims. Dkt. # 10 122. On October 5, 2018, the Ninth Circuit reversed the Court’s grant of summary 11 judgment on Jelinek’s extracontractual claims, finding that a jury reasonably could draw 12 inferences in favor of either party based on the evidence presented. Dkt. # 128. On 13 December 6, 2018, the Court set the trial on Jelinek’s extracontractual claims for November 14 4, 2019. On October 7, 2019, the parties submitted motions in limine which are now before 15 the Court. Dkt. ## 137, 138, 139. III. LEGAL STANDARD 16 17 Parties may file motions in limine before or during trial “to exclude anticipated 18 prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 19 U.S. 38, 40 n. 2 (1984). To decide on the motions in limine, the Court is generally guided 20 by Federal Rules of Civil Procedure 401 and 403. Specifically, the Court considers 21 whether evidence “has any tendency to make a fact more or less probable than it would be 22 without the evidence,” and whether “the fact is of consequence in determining the action.” 23 Fed. R. Civ. P. 401. However, the Court may exclude relevant evidence if “its probative 24 value is substantially outweighed by a danger of one or more of the following: unfair 25 prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 26 needlessly presenting cumulative evidence.” Fed. R. Civ. P. 403. 27 28 ORDER – 2 IV. DISCUSSION 1 2 The findings and conclusions in this order, like all rulings in limine, are preliminary 3 and can be revisited at trial based on the facts and evidence as they are actually presented. 4 See, e.g., Luce v. United States, 469 U.S. 38, 41 (1984) (explaining that a ruling in limine 5 “is subject to change when the case unfolds, particularly if the actual testimony differs from 6 what was contained in the proffer. Indeed even if nothing unexpected happens at trial, the 7 district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine 8 ruling.”). Subject to these principles, the Court issues these rulings for the guidance of the 9 parties. 10 A. AMPAC’s Motions in Limine i. 11 12 13 Mutually Agreed Motions in Limine The Court accepts the parties’ resolution of the following disputed issues for trial and GRANTS the following motions in limine: 14 1. The parties agree not to refer to the “golden rule” or similar themes, whether 15 directly or indirectly. This includes any argument that asks jurors to place 16 themselves in the position of either party or to grant relief that they would feel 17 entitled to if they were in the same position. (Motion in Limine No. 1.) 18 2. The parties agree to inform opposing counsel of their expected witnesses for 19 each day by close of business on the previous day. (Motion in Limine No. 2.) 20 Plaintiff to advise the parties on the preceding Friday of the witnesses 21 testifying on November 4. 22 3. The parties agree not to introduce witnesses and/or evidence at trial not 23 previously disclosed through discovery to date. (Motion in Limine No. 3.) 24 4. The parties agree not to introduce expert testimony or opinion evidence not 25 previously disclosed in the four corners of the expert’s report. (Motion in 26 Limine No. 4.) 27 28 5. The parties agree not to reference any “probable” testimony in their opening ORDER – 3 1 statement of any witness who is absent, unavailable, or not called to testify at 2 trial. (Motion in Limine No. 5.) 3 6. The parties agree not to mention or disclose ANPAC’s use of a jury consultant 4 in connection with any aspect of trial, including the selection of the jury. 5 (Motion in Limine No. 6.) 6 7. The parties agree not to mention or disclose any evidence about discovery 7 disputes, discovery negotiations, or allegations of misconduct involving 8 discovery between the parties. (Motion in Limine No. 9.) 9 8. The parties agree to preclude evidence or argument about ANPAC’s post- 10 litigation conduct, including settlement discussions. (Motion in Limine No. 11 21.) ii. 12 Disputed Motions in Limine (1) Motion in limine No. 7 13 14 ANPAC moves to preclude references to the Court’s prior rulings. The Court 15 GRANTS ANPAC’s motion. The Court’s prior rulings are irrelevant as they do not make 16 any fact related to Jelinek’s extracontractual claims more or less probable. See Fed. R. 17 Evid. 401. 18 (2) Motion in Limine No. 8 19 ANPAC moves to exclude any reference to the parties’ financial conditions. The 20 Court GRANTS ANPAC’s motion to the extent the parties’ financial conditions do not 21 make any fact related to Jelinek’s extracontractual claims more or less probable. See Fed. 22 R. Evid. 401. 23 (3) Motion in Limine No. 10 24 ANPAC seeks to preclude Plaintiff’s claim-handling expert David Mandt from 25 disputing ANPAC’s valuation of the claim, criticizing ANPAC’s post-litigation conduct, 26 or questioning ANPAC’s request for an independent medical examination (“IME”) or an 27 examination under oath (“EUO”). 28 ORDER – 4 1 The Court will not rule in a vacuum without more knowledge of the expert’s 2 purported testimony. It is unclear what topics or issues Mandt intends to testify on and 3 what foundation he has for any opinions. Therefore, ANPAC’s motion is TAKEN 4 UNDER ADVISEMENT. ANPAC may raise proper objections to Mandt’s testimony 5 during the course of trial, or on cross-examination regarding contrary or conflicting 6 opinions rendered pretrial. 7 (4) Motion in Limine No. 11 8 ANPAC moves to prohibit Plaintiff from introducing “character” evidence and/or 9 evidence of other claims or lawsuits involving ANPAC. The Court GRANTS the motion. 10 The Court agrees that that existence of other claims or lawsuits involving ANPAC are 11 irrelevant to Plaintiff’s extracontractual claims. 12 (5) Motion in Limine No. 12 13 ANPAC moves the Court to prohibit any direct or indirect evidence suggesting 14 Plaintiff actually suffered a brain bleed or capillary lesion as a result of the accident at 15 issue. According to ANPAC, Plaintiff has not disclosed any expert opinions, findings, or 16 report regarding the existence of a brain bleed or causation. ANPAC also claims that there 17 is insufficient evidence from which a medical expert could make a diagnosis of a brain 18 bleed or capillary lesion (or causation) with a reasonable degree of medical certainty. 19 Therefore, ANPAC’s motion is GRANTED. 20 (6) Motion in Limine No. 13 21 ANPAC moves to preclude the introduction of expert testimony regarding the force, 22 mechanics, or speed of the collision. ANPAC also moves to preclude any references to the 23 speed of the tortfeasor. ANPAC claims that Plaintiff has not made expert disclosures 24 regarding the force of mechanisms of the collision. ANPAC’s motion is GRANTED to 25 the extent Jelinek wishes to testify beyond her capacity as a lay witness or introduce expert 26 testimony not disclosed prior to trial. However, Jelinek is permitted to testify as to her 27 first-hand experience and observations during the collision. To the extent, Jelinek seeks to 28 ORDER – 5 1 testify regarding the speed of the tortfeasor based on her first-hand experience, ANPAC 2 may take up her prior statements during cross-examination. 3 (7) Motion in Limine No. 14 4 ANPAC moves to preclude argument that ANPAC had a heightened duty to Jelinek, 5 or that ANPAC was required to treat her interests on an equal footing with their own. The 6 Court GRANTS ANPAC’s motion. An insurer typically owes a heightened duty to “give 7 equal consideration to the insured’s interests and its own interests.” 8 Underwriters v. Carlson, 2006 WL 623785, at *9 (W.D. Wash. Mar. 13, 2006) (citing Am. 9 States Ins. Co. v. Symes of Silverdale, Inc., 78 P.3d 1266, 1270 (2003)). This enhanced 10 duty does not exist in a UIM case, in which the insurer often stands in the shoes of the 11 tortfeasor, can assert any defense to liability that the tortfeasor had, and thus finds itself in 12 an adversarial relationship with its own insured. See Ellwein v. Hartford Acc. & Indem. 13 Co., 15 P.3d 640, 647 (Wash. 2001), overruled in part on other grounds, Smith v. Safeco 14 Ins. Co., 78 P.3d 1274 (Wash. 2003). 15 Liberty Int’l (8) Motion in Limine No. 15 16 ANPAC claims that Jelinek should be judicially stopped from arguing that ANPAC 17 committed any extracontractual tort before April 21, 2015, the purported earliest date that 18 ANPAC could have offered her the policy limits. Dkt. # 137 at 13. At oral argument 19 before the Ninth Circuit, Jelinek’s counsel conceded that “the essential time period” for 20 which ANPAC had sufficient information on her claim was roughly April 21, 2015. 21 The Court disagrees with ANPAC that counsel’s statement precludes Jelinek from 22 arguing the existence of relevant conduct prior to that date. The Ninth Circuit’s 23 memorandum indicated that “a jury could reasonably find that ANPAC only superficially 24 reviewed the records provided to it, and that its settlement offers were based on litigation 25 avoidance without reference to Jelinek’s actual injuries.” Dkt. # 128 at 5-6. The Ninth 26 Circuit references the exclusion of Jelinek’s examination under oath (“EUO”) from the 27 claim file, and that fact that no one other than an ANPAC attorney reviewed the EUO 28 ORDER – 6 1 transcript. Based on the evidence, the Ninth Circuit concluded that “[a] jury could 2 reasonably find that, by the time Jelinek filed suit, ANPAC had decided it would not value 3 her claim at more than $25,000, regardless of what the evidence might show, and that the 4 offer was based on a desire to avoid litigation rather than a good-faith appraisal of Jelink’s 5 injuries.” Id. (emphasis added). Based on the foregoing, the Court finds that Jelinek is not 6 judicially estopped from arguing relevant conduct prior to April 21, 2015. ANPAC’s 7 motion is DENIED. (9) Motion in Limine No. 16 8 9 ANPAC moves to preclude Plaintiff from presenting evidence or argument that 10 ANPAC violated WAC 284-30-330(1) by “misrepresenting pertinent facts,” that ANPAC 11 violated WAC 284-30-330(13) by failing to provide a prompt and reasonable explanation 12 for its valuation, or that ANPAC violated WAC 284-30-370 by causing unreasonable 13 delay. 14 ANPAC essentially seeks partial summary judgment by way of a motion in limine. 15 See, e.g., Dkt. # 137at 16 (stating that “none of these theories are embraced within the 16 single dispute of fact found by the Ninth Circuit and for which the case was remanded to 17 trial”). Given the Ninth Circuit’s memorandum, which states that a jury could reasonably 18 draw inferences in favor of either party on Jelinek’s extracontractual claims, and its 19 mandate reversing the grant of summary judgment on all of Jelinek’s extracontractual 20 claims, the Court DENIES this motion. 21 (10) Motion in Limine No. 17 22 ANPAC moves to preclude any reference to appeal or remand. ANPAC’s motion 23 is GRANTED. These references are irrelevant to the substance of Plaintiff’s 24 extracontractual claims. 25 (11) Motion in Limine No. 18 26 ANPAC moves to preclude arguments from counsel that were made in the prior 27 trial. The Court will not rule in a vacuum as to purported arguments, and given the 28 ORDER – 7 1 vagueness of the request, the Court takes ANPAC’s motion UNDER ADVISEMENT. (12) 2 3 Motion in Limine No. 19 ANPAC moves to prohibit Jelinek from testifying that ANPAC’s litigation conduct 4 caused her emotional distress. 5 constitute compensable damages caused by the tortfeasor and thus testimony to that effect 6 is irrelevant and unfairly prejudicial. Fed. R. Evid. 401, 403. ANPAC’s motion is 7 GRANTED to the extent Jelinkek claims that her emotional distress was due to the 8 litigation or ANPAC’s litigation conduct. (13) 9 Emotional distress from litigation conduct does not Motion in Limine No. 20 10 Plaintiff moves to preclude references to a “prior trial” and, alternatively, prior 11 relevant testimony should be referred to as occurring at a “prior hearing” or “prior 12 proceeding.” The Court agrees that there is little probative value to referring to a prior trial 13 given the potential for unfair prejudice. ANPAC’s motion is GRANTED. (14) 14 Motions in Limine Nos. 22 & 23 15 ANPAC moves to exclude argument or testimony about the UIM verdict under 16 Rules 401 and 403. Alternatively, ANPAC moves to introduce a report by Plaintiff’s 17 expert alleging $1.5 million in lost earning capacity. ANPAC contends that introducing 18 evidence of the $368,002.70 amount awarded to Plaintiff for the UIM claim would likely 19 result in confusion and unfair prejudice in this jury’s consideration of the extracontractual 20 claims. Fed. R. Evid. 403. 21 The Court finds that the probative value of exposing the jury to the UIM verdict is 22 substantially outweighed by a danger of unfair prejudice or misleading the jury. Therefore, 23 the Court GRANTS the motion. 24 25 B. i. 26 27 28 Jelinek’s Motions in Limine Mutually Agreed Motions in Limine The Court accepts the parties’ resolution of certain disputed issues for trial and ORDER – 8 1 2 3 4 5 6 7 8 9 GRANTS the following motions in limine: 1. The parties agree not to reference claim-file documentation not disclosed prior to the discovery cut-off. (Motion in Limine No. 1.) 2. The parties agree not to reference the amount of Jelinek’s attorney’s fees. (Motion in Limine No. 5.) 3. The parties agree not to refer to the “golden rule” or similar themes. (Motion in Limine No. 7.) 4. The parties agree not to reference the effect of the accident on premiums or rates. (Motion in Limine No. 11.) ii. 10 11 12 Disputed Motions in Limine (1) Motion in Limine No. 1 Jelinek seeks to preclude references to an alleged requirement that the policyholder 13 compromise the amount of benefits to which she is entitled. 14 GRANTED to the extent the parties intend to misstate Washington law, which is clear that 15 “[t]he underinsurer is liable for the insured’s uncompensated damages above the limits 16 until the underinsurance policy coverage is exhausted or until the insured is fully 17 compensated, whichever occurs first.” Hamilton v. Farmers Ins. Co., 733 P.2d 213 (Wash. 18 1987). The Court expects Jelinek to make the proper objection during the course of trial. 19 Plaintiff’s motion is (2) Motion in Limine No. 2 20 Jelinek moves to preclude references to comparative fault, claiming that ANPAC 21 may attempt to shift fault to her or her counsel. Dkt. # 139 at 4. However, because Jelinek 22 only provides generalities about the evidence at this time, it is premature for the Court to 23 issue a ruling and will wait for further context. Therefore, Jelinek’s motion is TAKEN 24 UNDER ADVISEMENT. The Court expects Jelinek to make the proper objection during 25 the course of trial. 26 27 28 ORDER – 9 (3) Motion in Limine No. 4 1 2 Jelinek moves to preclude statements by the tortfeasor’s insurance company, 3 Country Financial, that the $100,000 liability limits would not be exhausted with respect 4 to her claim. According to Jelinek, no Country Financial adjuster is scheduled to testify 5 and the only purpose for which ANPAC would try to use Country Financial’s valuation is 6 to prove the truth of the matter asserted. Dkt. # 139 at 6. Because Plaintiff only provide 7 generalities about the evidence at this time, it is premature for the Court to issue a ruling 8 and will wait for further context. Therefore, Plaintiff’s motion is TAKEN UNDER 9 ADVISEMENT. The parties can submit proposed limiting instructions regarding the 10 purpose of the testimony being allowed. (4) Motion in Limine No. 6 11 12 Jelinek moves to exclude certain evidence of her prior medical history, which was 13 the subject of a limiting instruction during the UIM trial. She argues that neither ANPAC 14 nor any witnesses should reference that any of those conditions were actually substantiated 15 or relevant to the UIM claim. However, ANPAC’s purported reliance on certain portions 16 of her medical history is relevant to the extracontractual claims, specifically whether 17 ANPAC based its assessment on a reasoned evaluation of the facts. Therefore, Plaintiff’s 18 motion is DENIED. The Court expects Jelinek to raise proper objections during the course 19 of trial or take up the issue on cross-examination. 20 (5) Motion in Limine No. 8 21 Jelinek moves to preclude expert opinions on the laws relevant to her claim and 22 whether ANPAC complied with them. 23 opinions. Jelinek also moves to preclude undisclosed 24 It is well established that experts may not give opinions as to legal conclusions. See 25 Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1045 (9th Cir. 1996) (“Expert testimony 26 is not proper for issues of law.”). The Court GRANTS the motion to the extent the parties 27 intend to offer opinions as to legal conclusions. As for the relief regarding undisclosed 28 ORDER – 10 1 opinions, it was represented to the Court that this was already agreed upon by the parties. 2 See ANPAC’s MIL No. 4. (6) Motion in Limine No. 9 3 4 Jelinek moves to prohibit any reference to an intentionality requirement in order to 5 establish an IFCA violation. Dkt. # 139 at 10. The Court will not rule in a vacuum as to 6 purported 7 ADVISEMENT. The Court expects Plaintiff to make the proper objection during the 8 course of trial. 9 arguments and therefore Plaintiff’s motion is TAKEN UNDER (7) Motion in Limine No. 10 10 Plaintiff moves to exclude testimony or arguments relating to the bases for 11 redactions in the claim file. The Court GRANTS Plaintiff’s motion to the extent it seeks 12 to exclude testimony or reference to discovery disputes, discovery negotiations, claims of 13 privilege, or allegations of misconduct during the discovery process. 14 V. CONCLUSION 15 For the reasons stated above, the Court GRANTS in part, DENIES in part, and 16 TAKES UNDER ADVISEMENT the parties’ motions. Dkt. ## 137, 138, 139. 17 18 DATED this 23rd day of October, 2019. A 19 20 The Honorable Richard A. Jones United States District Judge 21 22 23 24 25 26 27 28 ORDER – 11

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