some for you, some for you, some to share – Judge Senter plays Santa in limine

Judge Senter’s Order on the various motions in limine in Payment v State Farm reminded me of Santa passing out gifts – and he kindly listed the various motions much like we’ve done here on SLABBED; so, they’ll be easy to follow.  Since I’m way short of time to do more than just get this up, I reversed the order of the Order and made it a post.

Ten of the twelve filed by State Farm are subject to this Order:

The Court will address the [106] Motion to Preclude Evidence or Testimony that Plaintiff’s Home was Completely Destroyed by Wind, and its companion–the [107] Motion for a Ruling that Plaintiff’s Acceptance of a Flood Insurance Payment Constitutes an Admission that at Least that Amount of Flood Damage Occurred and that the Flood Insurance Payment Must be Offset Against any Recovery Under Plaintiff’s Homeowners Insurance–by separate order.

The “separate order” wasn’t on the docket last night but as soon as it is and I’m where I can post, I’ll get it up.   See if you can guess what about his Order will keep me smiling wherever I am!

State Farm’s [99] Motion to Exclude Evidence, Testimony, or Argument Relating to Mississippi Department of Insurance Bulletins and Related Correspondence is GRANTED, subject to the above comments;

State Farm’s [100] Motion to Preclude Plaintiff from Introducing Testimony that Waiver or Estoppel Create or Modify Coverage is GRANTED;

State Farm’s [101] Motion to Exclude any and all Testimony, Evidence, and Argument Regarding any Grand Jury or Government Investigation of the Insurance Industry’s Response to Hurricane Katrina is GRANTED;

State Farm’s [102] Motion to Exclude any and all Testimony, Evidence, and Argument Regarding Claims Handling for Properties Other than Plaintiff’s is DENIED, subject to the above comments;

State Farm’s [103] Motion to Exclude Testimony, Evidence, and Argument Relating to Interpretation of Insurance Policy Provisions or Principles of Mississippi Law and to Exclude the Wind/Water Claim Handling Protocol is GRANTED IN PART (as to interpretation of the policy and law) and DENIED IN PART (as to the wind/water protocol);

State Farm’s [104] Motion to Exclude Evidence, Testimony, or Argument Concerning Evidence of Out-of-State Conduct is GRANTED;

State Farm’s [108] Motion to Preclude Plaintiff from Identifying, Using, or Referencing any Unproduced Evidence or Witnesses for use at Trial is HELD IN ABEYANCE;

State Farm’s [109] Motion to Exclude any and all Testimony, Evidence, and Argument Relating to the Market Conduct Report is GRANTED;

State Farm’s [111] Motion for a Phased Trial and to Preclude any and all Testimony, Evidence, and Argument Regarding Negligence, Other Tort Claims, and Claims for Extra- Contractual and Punitive Damages Prior to a Finding of Coverage Under the Insurance Policy is GRANTED IN PART and DENIED IN PART, subject to the above comments ; and

State Farm’s [113] Motion to Exclude Certain Inaccurate, Confusing, and Misleading Evidence is HELD IN ABEYANCE.

Any guesses? Here’s a clue – do unto others – if MID can’t be used, then we won’t be reading the uncalled for, unprofessional assumptions about what the Rigsby sisters did or did not discover again; and, if State Farm’s out of state conduct is off limits, so is the Alabama case.  Maybe. Hope so.

Here’s more from his Order – this text providing insight on his thinking.

The Court has ruled consistently that Mississippi Department of Insurance bulletins and correspondence are not admissible, unless State Farm responded to them in one manner and acted in another, or if State Farm used or relied on those bulletins for other purposes. The same exception holds true if State Farm made a statement in the nature of an evidentiary admission in any of these documents. Otherwise, these documents are not relevant to any issue in dispute and will be inadmissible at trial. Except as conditioned above, the Court will grant State Farm’s motion.
(correction entered on the docket noting Plaintiff did respond) In a related [109] motion, to which Plaintiff has not responded (see Uniform Local Rule 7.2(C)(2)), State Farm seeks the exclusion of the Report of the Special Target Examination for Hurricane Katrina Homeowner Claims (popularly known as the Market Conduct Report) commissioned by the Mississippi Department of Insurance. In addition to Plaintiff’s failure to respond, the probative value of this evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. State Farm’s [109] motion will be granted.
In his response to State Farm’s [100] motion aimed at the issues of waiver or estoppel, Plaintiff claims that he is not offering communications with the insurance agent to modify or expand coverage, but that they are relevant to his claim of failure to procure adequate insurance coverage. The Court views this is a distinction without a difference. The Court is all too familiar with the inadequate insurance coverage to which Plaintiff refers–that in requesting “hurricane coverage,” he was not covered for everything related to a hurricane, although the policy issued to him contains a valid and unambiguous flood exclusion, Plaintiff maintained a separate flood policy as required by his mortgagor, and the agent is not a party to this cause of action. The
United States Court of Appeals for the Fifth Circuit has made its position well known on the subject of blanket hurricane coverage. Leonard v. Nationwide Mutual Insurance Co., 499 F.3d 419 (5th Cir. 2007), recognized that an “insured has an affirmative duty to read the policy,” and“[w]hether the policy was read or not . . . constructive knowledge of its contents is imputed to the/policyholder.” Id. at 438. See also Tuepker v. State Farm Fire & Casualty Co., 507 F.3d 346 (5th Cir. 2007). Plaintiff in the instant case knew or should have known the policy’s contents, and evidence dealing with waiver or estoppel will not be allowed.

For the rest, use the link to the Order.

3 thoughts on “some for you, some for you, some to share – Judge Senter plays Santa in limine”

  1. Right on Rick – it appears this case is going to trial and the focus is exactly where it should be, on how the claim was adjusted and whether the policyholder is entitled to coverage.

    I’m “smelling” some bad faith coming. I don’t see Senter gutting extracontractual damages from this case.

    sop

  2. Of all of these rulings, the only one that I suspect might have been a close call was “Motion to Exclude any and all Testimony, Evidence, and Argument Regarding Claims Handling for Properties Other than Plaintiff

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