Unwise to Settle for Claimed Policy Limits Without Investigating All Available Coverages and Funds
Litigation of serious injuries will often be sidelined by limited available insurance and assets to pay a judgment for the true value of an injury. Injured parties and their lawyers will determine the available coverages and will often settle for policy limits because going to trial to prove larger damages would be expensive and uncollectible. In reaching such a settlement the plaintiffs will rely on the statements of the defendant directly or in response to discovery. When the plaintiffs’ lawyers are deceived as to available insurance new legislation will proceed and experts will be retained to establish the new case.
In Turubchuk v. E.T. Simonds Construction Company, United States District Court, S.D. Illinois, Slip Copy 2016 WL 1029371 (03/15/2016) plaintiffs claimed that the defendants in an underlying lawsuit concealed available coverages and retained the services of a expert to establish their case. The defendants tried to eliminate the testimony of the expert.
In 2007, Plaintiffs filed a negligence action seeking to recover for injuries resulting from a single vehicle rollover accident on August 21, 2005 (“the underlying action”). Plaintiffs sued Defendants E.T. Simonds Construction Company (“ETS”) and Southern Illinois Asphalt Company, Inc. (“SIAC”), alleging that Defendants were contractors on a State of Illinois road construction project responsible for repaving a stretch of Interstate 24.
Plaintiffs alleged that the vehicle in which they were riding went off the paved road in the construction zone, slipped off of a severe edge drop-off, left the highway and rolled.
At the time of the accident, ETS and SIAC were insured as a joint venture through an insurance policy issued by Bituminous Insurance Company. In addition to the Bituminous policy, both Defendants were individually insured through several policies.
Attorney Richard Green represented ETS and SIAC in the underlying action. Plaintiffs were represented by Komron Allahyari. On May 14, 2007, Allahyari made a $1,000,000.00 policy-limits settlement demand after allegedly receiving confirmation from Green that the Bituminous policy was the only policy available to cover Plaintiffs’ claims against the Defendants. Defendants never disclosed their individual policies.
Nearly six years later, Plaintiffs filed the instant action seeking damages for Defendants’ failure to disclose their individual policies in the underlying action. Plaintiffs allege that if Defendants had disclosed the individual policies, Plaintiffs would not have settled for what they believed were “policy limits” of the only policy disclosed to them. In the Second Amended Complaint, Plaintiffs assert claims for intentional misrepresentation, fraudulent concealment, negligent misrepresentation, and constructive fraud.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) the U. S. Supreme Court instructed courts to function as gatekeepers and determine whether expert testimony should be presented to the jury. Courts function as gatekeepers of expert testimony to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
In order to be considered reliable, proposed expert testimony must be supported on good grounds. Equally important to the gate-keeping function is a determination of whether the proposed testimony is relevant. Of particular relevance to an expert proffered for his experience, when determining whether an expert’s testimony is admissible, it is critical that there be a link between the facts or data the expert has worked with and the conclusion the expert’s testimony is intended to support. The court is not obligated to admit testimony just because it is given by an expert.
The expert must explain how experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. An expert’s qualification and experience alone are not sufficient to render his opinions reliable. The testimony must also assist the trier of fact.
In his report, Murphy, an attorney in private practice and a former federal district judge, states that he is familiar with the initial disclosure requirements of Rule 26 and that Plaintiffs are “stretching FRCP 26(a)(1)(A) well past its breaking point” Murphy asserts that “the comments [to the Rule] make clear that initial disclosures are just that and a party should make its initial disclosures based on the pleadings and the information then reasonably available to it” and that “it is anticipated that initial disclosures will be supplemented as time passes.” Murphy contends that Green had no reason to believe there was other insurance available to cover the joint venture and that Plaintiffs’ attorney negligently failed to serve detailed discovery requests to find out whether additional coverage existed beyond the joint venture policy. Murphy then propounds the following four opinions:
1. If there is coverage beyond that disclosed by Mr. Green, the plaintiffs’ lawyers neglected their duty to their clients by submitting a time-limited settlement demand before conducting the routine discovery that due diligence requires;
2. Mr. Green, as attorney for the defendants, did exactly what FRCP 26 required of him and he was not required at that time to conduct a thorough and complete investigation as to what other policies of insurance might provide additional coverage for plaintiffs’ claims. He made completely accurate “initial disclosures;”
3. It is not reasonable to rely only on information in initial disclosures to determine insurance coverage in a serious case (emphasis in report); and
4. The plaintiffs’ lawyers had ample time to satisfy themselves whether there was additional insurance available even after they had agreed to the $1,000,000.00 settlement as the release was not signed until twenty months later.
Plaintiffs first contend that Murphy’s second opinion is an improper legal conclusion. Next, Plaintiffs assert that the remaining opinions should be barred because they are based upon an assumption that the initial disclosures prepared by Green were appropriate and they shift the burden of discovery onto Plaintiffs when Defendants were under an obligation to automatically produce insurance agreements pursuant to Rule 26.
It is well-established that expert witnesses may not testify to legal conclusions or to the applicability or interpretation of a particular statute or regulation. Further, an expert witness may not offer an opinion or legal conclusion on issues that will determine the outcome of the case.
The Court concluded that Murphy’s second opinion invades on the province of the Court to interpret the requirements of Rule 26. Whether Green complied with Rule 26 is a question of law that is clearly reserved for this Court. Similarly, whether Plaintiffs’ Counsel’s actions were “negligent” is also an inadmissible legal conclusion which Mr. Murphy may not proffer.
However, Murphy’s remaining three opinions are relevant to the issue of sole proximate cause and he is clearly qualified by experience to give them. Further, the Court found that his testimony in that regard will assist the jury in determining issue of sole proximate cause.
For the foregoing reasons, Plaintiffs’ Motion to Strike is GRANTED as to Murphy’s above-stated second opinion and opinion that Plaintiffs’ Counsel was negligent.
The court properly limited the testimony of the expert whose report exceeded propriety by making conclusions of law and the ultimate issue. However, he can testify as to proximate cause. There is no question that a lawyer, before agreeing to settle a major injury case, must establish every available insurance policy and all assets available to pay a judgment. The plaintiffs’ lawyers in this case relied on a discovery response and did not look further and now seek to recover for their own errors and sloth.
Barry Zalma, Esq., CFE, practiced law in California for more than 43 years as an insurance coverage and claims handling lawyer. He now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes.
He founded Zalma Insurance Consultants in 2001 and serves as its only consultant.
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