United States District Court, D. North Dakota
Kevin A. Avery and Denise M. Avery, a/k/a Denise W. Murdock, as assignees of the Estate of Andrzej Furmanski, Deceased, Plaintiffs,
Lahr Agency, LLC, n/k/a REL Agency, LLC, Defendant.
ORDER RE DEFENDANT'S MOTIONS IN LIMINE
Charles S. Miller, Jr., Magistrate Judge
following are the court's rulings on defendant's
motions in limine 1-4:
Motion to exclude expert Clinton Miller's opinion
that Rich Lahr had a duty to procure a $5 million excess or
umbrella policy for the airplane
Defendant seeks to exclude testimony on the part of
plaintiffs' expert Clinton Miller that defendant should
have procured an excess policy in the amount of $5 million
dollars. Defendant's objections are several. The first is
that Miller did not set forth an opinion regarding the amount
of insurance that Lahr should have procured. While somewhat
oblique and sparse on detail, Miller's report does appear
to offer an opinion that defendant should have procured a
policy that would have provided $5 million in coverage
effective for the circumstances of this case. Further,
defendant did depose Miller where he offered the same opinion
and specifically referred to the possibility of an excess
policy. For these reasons and the fact defendant
has retained its own expert on these matters, defendant has
not been unfairly prejudiced.
second objection is that Miller lacks the necessary
qualifications to express an opinion. The court disagrees.
Miller has substantial background and experience in the
insurance industry. The deficiencies claimed by defendant go
to the weight of his testimony and not its admissibility.
third objection is that Miller's testimony that $5
million in coverage should have been procured is not
sufficiently grounded and lacks foundation. The court will
defer ruling on the ultimate admissibility of Miller's
testimony with respect to this point until it hears all of
the evidence, but the court does have concerns. Kevin Avery
acknowledges he did not request any specific policy limits in
his conversations with Richard Lahr and left it up to his
professional judgment to decide what would be appropriate.
While Miller says $5 million in coverage would have been an
appropriate amount, the only thing he offers to support this
opinion is that this is the amount that would be appropriate
for a high net worth individual as well as a business the
size of Avery Enterprises and vague reference to coverage in
this amount being available in the market.Maybe this enough,
but far more probative (at least in this court's view)
are (1) the limits of liability coverage for small aircraft
(both the primary policy and any applicable excess polices)
that Lahr obtained for himself, defendant,  and his other
customers, and (2) the excess policy limits that Avery
Enterprises was apparently satisfied with for other liability
ruling: Motion is DENIED.
Motion to exclude evidence of Richard Lahr's offer to
Kevin Avery to pay $30, 000
seeks to exclude from evidence an offer made by Richard Lahr
while he was in the hospital to pay $30, 000. The court
agrees there existed at the time the offer was made a dispute
as to whether Lahr should have procured insurance on the
aircraft in that this was the subject of an earlier phone
call. As a consequence, the offer falls within the scope of
Fed.R.Evid. 408. See, e.g., Weems v.
Tyson Foods, Inc., 665 F.3d 958 (8th Cir. 2011) (a
dispute need not crystallize to the point of threatened
litigation for the Rule 408 exclusion to apply); Savy
Surfers, Inc. v. Wings of Minot ND LLC, No. 1:17-v-164,
2019 WL 377652, at **2-3 (D.N.D. Jan. 30, 2019) (same).
Plaintiffs may not use the offer to prove liability.
ruling: Motion is GRANTED IN
PART. Plaintiffs may not use the offer to prove
liability. The court makes no ruling with respect to whether
the evidence may be offered for some other purpose, however.
Plaintiffs, plaintiffs' counsel, and plaintiffs'
experts may not mention or otherwise refer to the $30, 0000
offer in the presence of the jury without first seeking
permission from the court.
Motion to exclude evidence of other lawsuits and
seek to offer evidence that defendant and/or Richard Lahr had
been the subject of one or more prior claims and that, at
least in one case, a substantial settlement was made. If
offered to show that Richard Lahr was not a careful or
diligent agent and/or to support the claim that Lahr failed
to procure requested insurance because he had allegedly done
so in the past, the evidence is subject to exclusion under
Fed.R.Evid. 404. See, e.g., State Farm
Mut. Auto Ins. Co. v. Accident Victims Home Health Care Serv.
Inc., 467 Fed.Appx. 368, 371-74 (6th Cir. 2012)
(district court erred in admitting evidence that a party had
engaged in prior acts of fraud and misrepresentation when the
only apparent purpose was show propensity for the same type
of conduct); American Airlines, Inc. v. United
States, 418 F.2d 180, 197 (5th Cir.1969)
(“evidence of a similar act of negligence is not
admissible to prove negligence in performing the same act
later”). However, there are exceptions that
may be applicable.
court agrees that the prior act evidence that has been
referenced in the deposition testimony the court has reviewed
so far appears to be dissimilar enough that several of the
exceptions under Rule 404(b)(2) are likely not applicable.
Cf. First Sec. Bank v. Union Pacific R.R. Co., 152
F.3d 877, 879-80 (8th Cir. 1998); Shelley v. White,
No. 1:09-cv-00662, 2010 WL 1904963, at **2- 4 (M.D. Ala. May
12, 2010). However, the court is not prepared to conclude now
that none of the exceptions apply. Also, there is the
possibility defendant may “open the door” to some
of the evidence.
ruling: Motion is GRANTED IN
PART. Plaintiffs, plaintiffs' counsel, and
plaintiffs' experts may not mention or otherwise refer to
other lawsuits and claims in the presence of ...