# USAA General Indemnity Company v. Snow

> District Court, M.D. Florida · July 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10105744

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105744

## How later opinions describe it (automated extraction)

- 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)”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105744. Public record. Not legal advice.