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Jarecke v. American National Property and Casualty Co.

United States District Court, D. Montana, Billings Division

November 12, 2014



CAROLYN S. OSTBY, Magistrate Judge.

Shadya Jarecke's ("Jarecke") Complaint asserts two claims against American National Property and Casualty Co. ("ANPAC"). Count 1 alleges that ANPAC violated Montana's Unfair Trade Practices Act ("UTPA"), ยงยง 33-18-201 et seq., by failing to properly pay underinsured motorist ("UIM") coverage benefits. Count 2 alleges that ANPAC acted with malice. See Complaint (ECF 4) [1] at 3.

The following motions in limine are before the Court:

1. Jarecke's motion in limine to exclude the testimony of ANPAC's liability expert, Guy Rogers, Jarecke's Mtn. in Limine re: Rogers (ECF 50);
2. ANPAC's motion in limine to exclude the testimony of Jarecke's liabilty expert, David Bauer, ANPAC's Mtn. in Limine re: Bauer (ECF 59); and,
3. ANPAC's motion in limine to exclude the testimony of Craig Clarke, whom Jarecke identified as an expert witness to testify concerning her economic loss, ANPAC's Mtn. in Limine re: Clarke (ECF 61).

Having reviewed the parties' briefs and submissions, the Court rules as set forth below.


The Court has summarized the underlying facts in earlier Orders. See Order [Addressing Jarecke's Motion for Partial Summary Judgment] (ECF 26 ) and Order Addressing Cross Motions for Partial Summary Judgment (ECF 43). Thus, the Court will repeat them here only where necessary to lend context to the discussion.


Motions in limine are procedural devices to obtain pretrial rulings on the admissibility of evidence. Judges have broad discretion when ruling on motions in limine but a motion in limine should not be used to resolve factual disputes or weigh evidence. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); C & E Services, Inc., v. Ashland Inc., 539 F.Supp.2d 316, 323 (D. D.C. 2008). To exclude evidence on a motion in limine "the evidence must be inadmissible on all potential grounds." Indiana Ins. Co. v. General Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004); Kiswani v. Phoenix Sec. Agency, Inc., 247 F.R.D. 554, 557 (N.D. Ill. 2008); Wilkins v. K-Mart Corp., 487 F.Supp.2d 1216, 1218-19 (D. Kan. 2007). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partners v. AT & T Tech, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Although rulings on motions in limine may save "time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence." Wilkins, 487 F.Supp.2d at 1219.

Also, it is settled that rulings on motions in limine are provisional. Such "rulings are not binding on the trial judge [who] may always change [her] mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce v. United States, 469 U.S. 38, 41 (1984). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." Indiana Ins. Co., 326 F.Supp.2d at 846.


A. Motions to Exclude Rogers' and Bauer's Testimony

1. Parties' Arguments

Jarecke seeks to exclude the anticipated trial testimony of attorney Guy Rogers ("Rogers"). ECF 50 at 1. Jarecke styles her motion as one to preclude "the admission of legal conclusion testimony from Defendant's expert, Mr. Guy Rogers." ECF 50 at 1. But ultimately, however, Jarecke seeks the Court's "Order in limine excluding attorney Mr. Rogers from testifying" at the trial of this matter, apparently seeking to preclude him from testifying in any manner. Jarecke's Opening Br. (ECF 51) at 8.

ANPAC represents that Rogers is expected to render opinions concerning "an insurer's duties and the applicable standard of care with respect to adjusting an insured's underinsured motorist ("UIM") and medical-payments coverage ("Med-Pay") claims in Montana." ANPAC's Resp. Br. (ECF 56) at 2. ANPAC further notes that Rogers also will "apply these standards to ANPAC's conduct in handling [Jarecke's] claims." Id.

Jarecke argues that the Court should preclude Rogers from testifying for two principal reasons. First, Jarecke argues that federal courts, including this one, consistently bar experts such as Rogers "from opining about legal conclusions." ECF 51 at 4. Courts consistently preclude attorneys from testifying about what such attorneys believe is Montana's law applicable to bad faith claims, Jarecke argues, because such opinions and conclusions interfere with the Court's role as the "sole arbiter of the law." Id. (citation omitted). And, Jarecke argues, courts also consistently preclude expert witnesses such as Rogers from applying the law to the facts of a case, or applying the facts to the relevant law in UTPA cases. Id . at 6.

Second, Jarecke argues that Rogers lacks the requisite qualifications "to testify about how an insurer should handle a claim." Id . at 7. She argues that Rogers "has no foundation to offer expert opinions about how a claim should be handled from an insurer's perspective[ ]" because he has worked only as a lawyer and has no experience about claims handling beyond his experience as a lawyer. Id . at 7-8.

In response, ANPAC asserts that Rogers' "testimony will not invade the province of the jury and he is qualified to educate the jury on the standards and practices ANPAC was required to follow in adjusting Jarecke's UIM and Med-Pay claims." ECF 56 at 5. ANPAC argues that Rogers has "specialized knowledge [that] will assist the jury with understanding... whether ANPAC complied ...

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