USAA General Indemnity Company v. Snow

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

USAA GENERAL INDEMNITY COMPANY,

Plaintiff,

v. Case No. 8:19-cv-944-T-33TGW

ARTHUR SNOW,

as Personal Representative

of the Estate of Hugh W. Snow,

Defendant.

______________________________/

ORDER

This matter comes before the Court pursuant to Defendant

Arthur Snow’s Amended Motion in Limine (Doc. # 48), filed on

July 14, 2020. Plaintiff USAA General Indemnity Company

responded on July 27, 2020. (Doc. # 50). For the reasons that

follow, the Motion is denied.

I. Background

Hugh Snow (“Hugh”) purchased automobile insurance from

USAA in November 2013. (Doc. # 1-2). The policy included

“STACKED” per-person underinsured motorist (“UM”) coverage of

$100,000. (Id. at 2). The policy also included bodily injury

(“BI”) coverage of $100,000 per person. (Id.).

According to USAA’s “ODOC note,” Hugh called USAA a few

days after purchasing the policy and spoke to an unidentified

USAA agent. On November 27, 2013, the USAA employee entered

a note in USAA’s claim software allegedly summarizing the

call:

MBR CALLED RECEIVED AOPOL SAID PREMIUM WAS HIGHER

THAN QUOTED—HE THOUGHT PREM WAS 838.37—ADVISED TO

GET THE 838.37 PREM HE NEED TO SIGN AND RETURN THE

FORMS TO HAVE LOWER UM COVERAGE AND NO-STACKING.

ADVISED AS SOON AS WE RECEIVE THE RETURNED FORMS

PREM WOULD GO DOWN TO THE 838.37.

(Doc. # 36-2 at 2). In short, the note states that (i) Hugh

called and complained that the premium on his policy was

higher than he expected, and (ii) the employee informed Hugh

that his premium would decrease if he executed and returned

a UM selection/rejection form selecting lower UM limits and

non-stacked coverage. Subsequently, Hugh filled out a UM

coverage selection form on November 27, 2013. (Doc. # 34 at

11).

The form states: “To make a change to your current

policy, you must check one of the following boxes.” (Id.).

This text is followed by a list of options with boxes beside

them. (Id.). Despite the instruction to check only one box,

Hugh marked two boxes. First, he marked the box stating, “I

want the NON-STACKED form of UM Coverage at limits equal to

my BI liability limits,” which would be $100,000. (Id.).

Second, he marked a box stating, “I want the NON-STACKED form

of UM Coverage at limits of $10,000 per person, $20,000 per

accident, which are lower than my BI Liability limits.” (Id.).

The dollar amounts in the second box are hand-written. (Id.).

After receiving this form, USAA amended the policy in

December 2013 to carry non-stacked UM coverage with

$10,000/$20,000 limits and a lower premium than Hugh had

originally owed — either $803.48 or $812.21. (Doc. # 1-5 at

3). Each year for the next six years, USAA provided Hugh with

his annual policy renewal documentation, which included new

UM selection/rejection forms. (Doc. # 36-3). But Hugh never

executed and returned to USAA another UM selection/rejection

form. (Id.).

In February 2019, Hugh passed away as a result of a car

accident. (Doc. # 1 at 4; Doc. # 34 at 9). Arthur Snow

(“Snow”), the personal representative of Hugh’s Estate, sent

USAA a demand for the UM policy limits, which Snow maintains

should be $100,000. (Doc. # 1 at 4).

USAA initiated this action on April 19, 2019, seeking a

declaratory judgment that Hugh’s insurance policy “contains

non-stacked uninsured motorist coverage limits of $10,000.00

per person and $20,000.00 per accident.” (Doc. # 1 at 6).

Snow filed an answer on August 7, 2019 (Doc. # 13), and then

an amended answer on March 16, 2020. (Doc. # 33). Each party

sought summary judgment in its favor, (Doc. ## 34, 36), but

the Court denied both motions. (Doc. # 42).

Now, Snow seeks to exclude two pieces of evidence. (Doc.

# 48). USAA has responded (Doc. # 50), and the Motion is ripe

for review.

II. Legal Standard

“A motion in limine presents a pretrial issue of

admissibility of evidence that is likely to arise at trial,

and as such, the order, like any other interlocutory order,

remains subject to reconsideration by the court throughout

the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06–

md–1769–Orl–22DAB, 6:07–cv–15733–Orl–22DAB, 2009 WL 260989,

at *1 (M.D. Fla. Feb. 4, 2009). “The real purpose of a motion

in limine is to give the trial judge notice of the movant’s

position so as to avoid the introduction of damaging evidence

which may irretrievably effect the fairness of the trial.”

Id. (internal quotation omitted). “A court has the power to

exclude evidence in limine only when evidence is clearly

inadmissible on all potential grounds.” Id. (internal

quotation omitted).

“A motion in limine is not the proper vehicle to resolve

substantive issues, to test issues of law, or to address or

narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field

Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012)(citing

Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07–80172–

CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). “Denial

of a motion in limine does not necessarily mean that all

evidence contemplated by the motion will be admitted at

trial.” In re Seroquel, 2009 WL 260989, at *1 (internal

quotation marks omitted). “Instead, denial of the motion

means the court cannot determine whether the evidence in

question should be excluded outside the trial context.” Id.

“The court will entertain objections on individual proffers

as they arise at trial, even though the proffer falls within

the scope of a denied motion in limine.” Id.

The district court has broad discretion to determine the

admissibility of evidence, and the appellate court will not

disturb this Court’s judgment absent a clear abuse of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th

Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273,

1285 (11th Cir. 2003)(“Inherent in this standard is the firm

recognition that there are difficult evidentiary rulings that

turn on matters uniquely within the purview of the district

court, which has first-hand access to documentary evidence

and is physically proximate to testifying witnesses and the

jury.”).

III. Analysis

Snow seeks to exclude two pieces of evidence from trial:

USAA’s “ODOC note” and the affidavit of Matthew Youngsma.

(Doc. # 48 at 1). Snow argues that both the ODOC note and

Youngsma’s affidavit are inadmissible hearsay. (Id. at 2).

1. Youngsma’s Affidavit

USAA attached the affidavit of Youngsma to its

complaint. (Doc. # 1-3). Youngsma avers that he is a Senior

Underwriting Adherence Advisor with USAA. (Id. at 2). In the

affidavit, Youngsma states that he has “personal knowledge of

the facts attendant to this claim because [he] [has] reviewed

all underwriting decisions, the claims file, and insurance

application information for Hugh[’s] account with USAA, and

[he] routinely work[s] with the [UM] selection/rejection form

in the course of [his] employment with USAA.” (Id.).

Youngsma avers that Hugh called USAA on November 27,

2013, “to discuss his premium of $927.17, which he advised

was higher than the $838.37 premium he anticipated” and that

an unnamed “USAA employee informed [Hugh] that in order to

obtain the lower premium, he would need to sign and return

the [UM] rejection/selection form.” (Id. at 2-3). According

to Youngsma, the ODOC note was “contemporaneously recorded

within USAA’s online documentation system, which [he]

reviewed.” (Id. at 3).

Snow seeks to exclude Youngsma’s affidavit because it is

hearsay and “merely a summary of the ODOC [n]ote,” and “does

not give [Snow] an opportunity to cross-examine the affiant.”

(Doc. # 48 at 2, 4). But Snow’s Motion fails to expand on

these assertions or provide any analysis regarding the

affidavit. Nor does the Motion cite any legal authority in

support of Snow’s argument.

Snow’s failure to develop his argument regarding the

affidavit warrants denial of the Motion as to the affidavit.

See Herbert v. Architect of Capitol, 839 F. Supp. 2d 284, 298

(D.D.C. 2012)(“[T]he [defendant] has simply failed to support

its argument with any meaningful measure of factual or legal

argument. Courts need not consider cursory arguments of this

kind, and the Court declines to do so here.”); see also Metro.

Prop. & Cas. Ins. Co. v. Sarris, No. 115CV0780LEKDJS, 2017 WL

3252812, at *15 (N.D.N.Y. July 28, 2017)(“To the extent that

Met P&C seeks dismissal of George Sarris’s counterclaim for

breach of the duty of good faith and fair dealing, . . . the

Court need not address that argument because it is completely

undeveloped.”). However, Snow may raise this objection at

trial again, if appropriate.

2. ODOC Note

According to Snow, the ODOC note is hearsay because USAA

is introducing it as “evidence that Hugh [] wanted to lower

his auto insurance premium” and “as evidence of the advice

that [USAA] verbally gave Hugh [] (in regards to how he could

achieve this goal).” (Id. at 2).

In response, USAA maintains that the ODOC note is not

hearsay or, alternatively, satisfies the business records

exception to hearsay. (Doc. # 50 at 3).

“‘Hearsay’ means a statement that . . . the declarant

does not make while testifying at the current trial or

hearing; and . . . a party offers in evidence to prove the

truth of the matter asserted in the statement.” Fed. R. Evid.

801(c). The word “statement” is defined as “a person’s oral

assertion, written assertion, or nonverbal conduct, if the

person intended it as an assertion.” Fed. R. Evid. 801(a).

And the “declarant” is “the person who made the statement.”

Fed. R. Evid. 801(b).

The Court rejects USAA’s argument that it is not

introducing the ODOC note to prove the truth of the matter

asserted. (Doc. # 50 at 4). USAA argues that it “does not

intend to offer the ODOC[] note to prove [Hugh] knowingly and

intentionally waived his rights to higher UM benefits.”

(Id.). Rather, it is offering the ODOC note “to provide

context for the events leading up to [Hugh’s] submission of

a UM selection/rejection form, and for USAA’s half of the

telephone conversation.” (Id.). According to USAA, “the note

shows that a USAA employee received a phone call from [Hugh]

regarding his insurance premium; the same day, [Hugh]

executed a UM form with coverage alterations that would lower

his premium, and two days later, sent USAA the form.” (Id.).

But, even if USAA intends to use the ODOC note solely

for its clarification of the context and timeline of Hugh’s

filling out the UM form, USAA is still relying on the truth

of the statements made in the ODOC note. At the very least,

USAA is relying on the truth of one matter asserted in the

note by the USAA employee — that Hugh did in fact call and

speak to that USAA employee.

Nevertheless, the Court agrees with USAA that the ODOC

note likely satisfies the business records exception to the

hearsay rule. Under that exception, “[a]n authenticated

document is admissible as a business record if it ‘was made

at or near the time by — or from information transmitted by

— someone with knowledge’; if it ‘was kept in the course of

a regularly conducted activity’; and if ‘making the record

was a regular practice of that activity.’” In re Int’l Mgmt.

Assocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015)(quoting

Fed. R. Evid. 803(6)(A)-(C)). “[A]ll these conditions [must

be] shown by the testimony of the custodian or another

qualified witness, or by a certification that complies with

Rule 902(11) or (12) or with a statute permitting

certification.” Fed. R. Evid. 803(6)(D). If these conditions

are met and “the opponent does not show that the source of

information or the method or circumstances of preparation

indicate a lack of trustworthiness,” the business record is

admissible. Fed. R. Evid. 803(6)(E).

“[W]hen deciding whether an exception to the rule

against hearsay applies, the court may consider any

unprivileged evidence — even hearsay.” In re Int’l Mgmt.

Assocs., LLC, 781 F.3d at 1268. To satisfy Rule 803(6)(D),

“[s]omeone who is knowledgeable about the procedures used to

create the alleged business records must testify.” Id.; see

also United States v. Garnett, 122 F.3d 1016, 1018–19 (11th

Cir. 1997)(“[Rule] 803(6) requires the testimony of a

custodian or other qualified witness who can explain the

record-keeping procedure utilized. It is not necessary for

the person who actually prepared the documents to testify so

long as there is other circumstantial evidence and testimony

to suggest the trustworthiness of the documents.”). But

“[t]he testifying witness does not need firsthand knowledge

of the contents of the records, of their authors, or even of

their preparation.” In re Int’l Mgmt. Assocs., LLC, 781 F.3d

at 1268.

Snow argues that the ODOC note is untrustworthy because

USAA cannot establish that it was made at or near the time

Hugh called USAA. (Doc. # 48 at 3). Although the ODOC note

includes a date and time — “11/27/13 02:18CST” (Doc. # 36-2

at 1) — it does not state whether that is the actual date of

Hugh’s call. (Doc. # 48 at 3). In his affidavit, Youngsma

averred that the ODOC note was created contemporaneously with

the phone call. (Doc. # 1-3 at 3).

Regardless, Hugh was only issued the policy on November

20, 2013, and the ODOC note was made on November 27. Thus,

even if the note was made on a different day than the one on

which Hugh called, it could only have been made at most six

days earlier. Such a short time period does not undermine the

trustworthiness of the ODOC note. Compare Carrie Contractors,

Inc. v. Blount Const. Grp. of Blount, Inc., 968 F. Supp. 662,

666 (M.D. Ala. 1997)(finding that accounting records made

seventeen months after the event at issue were not made “at

or near the time of” the event and “therefore do not meet the

requirements of Rule 803(6)”). Any uncertainty regarding the

exact date on which the note was created does not demonstrate

a lack of trustworthiness.

Next, Snow emphasizes that the identity of the USAA

employee who created the ODOC note is unknown. (Doc. # 48 at

3-4). Indeed, the ODOC note lists the employee’s name as “Name

not found.” (Doc. # 36-2 at 2). According to Snow, without

the name and testimony of the employee who created the ODOC

note, it is impossible to determine “if the author of the

note was the same person who had the alleged phone

conversation with Hugh.” (Doc. # 48 at 4). Snow asks, “[h]ow

then can we possibly begin to evaluate whether this person

‘had knowledge’ about the event?” (Id.).

But Snow ignores the case law establishing that the

employee who created a particular business record need not

testify for the business records exception to apply. See

Garnett, 122 F.3d at 1018–19 (“It is not necessary for the

person who actually prepared the documents to testify so long

as there is other circumstantial evidence and testimony to

suggest the trustworthiness of the documents.”).

Additionally, USAA is correct that the business records

exception can apply even when the identity of the employee

who created the record is unknown. (Doc. # 50 at 7-8); see

also United States v. Langford, 647 F.3d 1309, 1327 (11th

Cir. 2011)(“It is not essential that the offering witness be

the recorder or even be certain of who recorded the item.”

(citation omitted)(emphasis added))

Indeed, “[t]o interpret Rule 803(6) as requiring that

affiants be permitted to testify only to those bits of

information to which they, personally, have borne witness

would be to turn Rule 803(6) on its head and would create

numerous substantive proof problems, especially for large

enterprises.” In re Trafford Distrib. Ctr., Inc., 414 B.R.

858, 862 (Bankr. S.D. Fla. 2009). “Allowing evidence from

employees who have reviewed business records is what keeps

corporate entities from having to track down former employees

every time a subpoena is served regarding some menial aspect

of their respective prior work; more broadly, review of

records is what keeps major national entities from having to

locate and produce the employee who personally put a subject

bill or document in the mail to a customer.” Id.

Here, USAA has presented evidence that the ODOC note is

trustworthy despite the absence of an affidavit or testimony

from the USAA employee who made the note. Specifically, USAA

has provided the affidavit of Youngsma, which is based on his

personal knowledge of the record as a USAA Senior Underwriting

Adherence Advisor who has reviewed Hugh’s account. (Doc. # 1-

3). His affidavit is prima facie evidence of the ODOC note’s

authenticity and trustworthiness. See Lewis v. Residential

Mortg. Sols., 800 F. App’x 830, 834 (11th Cir. 2020)(“Owens

herself is a ‘qualified witness’ permitted to introduce these

documents into evidence. She averred that she was a

foreclosure supervisor at BSI and was ‘personally familiar

with the facts set forth’ in her affidavit, along with ‘the

records of BSI Financial Services with regard to this matter.’

This is all the rule requires.”). As USAA points out, Snow

“has offered no evidence disputing either that the declarant

was within the course and scope of employment, or that USAA

did not regularly receive information from that employee.”

(Doc. # 50 at 8).

Furthermore, Youngsma will presumably testify at trial

to establish the predicates for the business records

exception. See In re Int’l Mgmt. Assocs., LLC, 781 F.3d at

1268 (“Someone who is knowledgeable about the procedures used

to create the alleged business records must testify.”). So,

Snow may cross-examine him then to try to show a lack of

trustworthiness for the ODOC note. Based on the evidence

before the Court, the business records exception applies to

the ODOC note.

To the extent USAA seeks to rely on the truth of the

matters asserted in Hugh’s statement within the ODOC note,

USAA has argued that Hugh’s statement is not hearsay under

either the statement of an opposing party exception or the

then-existing mental condition exception to the hearsay rule.

(Doc. # 50 at 5, 8-9); see Williams v. Alpharetta Transfer

Station, LLC, No. 1:07-CV-1949-GET-GGB, 2009 WL 10670626, at

*6 (N.D. Ga. July 7, 2009)(“‘Double hearsay’ is hearsay

included within another hearsay statement. Double hearsay ‘is

not excluded under the hearsay rule if each part of the

combined statements conforms with an exception to the hearsay

rule provided in these rules.’” (citations omitted)), report

and recommendation adopted as modified, No. 1:07-CV-1949-GET,

2010 WL 11526841 (N.D. Ga. June 15, 2010), aff’d sub nom.

Williams v. Waste Mgmt., Inc., 411 F. App’x 226 (11th Cir.

2011). USAA’s arguments appear to have merit. See Fed. R.

Evid. 801(d)(2)(A) (providing that an out-of-court statement

is not hearsay if “[t]he statement is offered against an

opposing party and . . . was made by the party in an individual

or representative capacity”); Fed. R. Evid. 803(3) (providing

in relevant part that “[a] statement of the declarant’s then-

existing state of mind (such as motive, intent, or plan)” is

an exception to the rule against hearsay).

Thus, the Court will not exclude the ODOC note at this

time. See In re Seroquel Prods. Liab. Litig., 2009 WL 260989,

at *1 (“A court has the power to exclude evidence in limine

only when evidence is clearly inadmissible on all potential

grounds.” (internal quotation omitted)). If appropriate, Snow

may raise his objections regarding the ODOC note again at

trial.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Defendant Arthur Snow’s Amended Motion in Limine (Doc.

# 48) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

3ist day of July, 2020.

lagi Or. Munenby (nih

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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