Opinion

Decamp v. State Farm Fire & Casualty Company

Court
District Court, M.D. Florida
Filed
Sep 7, 2021
Cited by
0 cases
Authority
More cited than 19.8%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHRISTINE DECAMP, as Guardian

of the Property of

Timothy Decamp, Jr. and

assignee of Jasmina Woltcheck,

and CONSTANCE DECAMP,

as Guardian of the Person

of Timothy Decamp, Jr.

and assignee of Jasmina Woltcheck,

Plaintiffs,

v. Case No. 8:20-cv-1747-VMC-TGW

STATE FARM FIRE & CASUALTY

COMPANY,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Plaintiffs Christine and Constance Decamp’s Daubert Motion to

Exclude the Opinions of Kelly Gray, Esq. (Doc. # 46), filed

on August 9, 2021. Defendant State Farm Fire & Casualty

Company responded on August 23, 2021. (Doc # 52). For the

reasons that follow, the Motion is granted in part and denied

in part.

I. Background

In this action, the Decamps, as Guardians for Timothy

Decamp, Jr., assert claims for common law bad faith, statutory

bad faith, and unfair claim settlement practices against

State Farm. (Doc. # 1). The parties and the Court are familiar

with the facts of this case, as well as the underlying

litigation between the Decamps and State Farm’s insured,

Jasmina Woltcheck. Thus, the Court need not reiterate those

facts here.

This case has proceeded through discovery and State Farm

has moved for summary judgment. (Doc. # 45). In support of

its case, State Farm utilizes the opinions of Kelly Gray,

Esq. Gray is an attorney “licensed to practice law in the

State of Florida since 1993.” (Doc. # 46-1 at 66). “During

the past nearly twenty-eight years, [she has] focused [her]

practice on insurance coverage and extracontractual matters,

both as a litigation attorney and as a corporate claims

attorney. In addition, [she has] several years of experience

litigating various types of personal injury matters,

including catastrophic automobile accidents, construction

defect litigation, and professional liability.” (Id.).

In her report, Gray opines that, “under the totality of

the circumstances, State Farm has met its fiduciary

obligations and complied with applicable industry standards

relative to the claims of Timothy DeCamp against Jasmina

Woltcheck.” (Id. at 80). Among other things, Gray concludes

that “the State Farm policy clearly and unambiguously did not

obligate State Farm to pay for the Guardianship or the Special

Needs Trust.” (Id. at 83). Furthermore, regarding the

Decamps’ demand that State Farm pay for the legal and other

fees associated with the establishment of a guardianship and

special needs trust for Timothy Decamp, Gray states:

The industry standard is not now, nor has it ever

been, that a carrier must make extra contractual

payments over and above its purchased policy limits

to effectuate a settlement in order to be in good

faith. Such a standard would make a mockery of the

concepts of good and bad faith. Extra contractual

payment is due, by definition, when a carrier has

failed to act in good faith or, put another way,

has already acted in bad faith. They are payments

over and above the policy limits BECAUSE the

carrier failed to settle the claim at or within the

policy limits when it could and should have done

so. Thus, there must have first been an opportunity

to settle the claim at or within the policy limits

which the carrier failed to effectuate. There was

clearly never any such opportunity here. The file

materials establish that Attorney Leeper only ever

offered to accept the proactively tendered policy

limits if State Farm would also agree to pay extra

contractual amounts. Attorney Leeper and Christine

and Constance DeCamp have all testified that they

were never willing to accept the $50,000 policy

limits without more.

(Id. at 84). While Gray acknowledges that some insurance

companies have paid above the policy limits to establish

guardianship to effectuate a settlement, she maintains that

these past incidents do not “establish[] an industry standard

requiring a carrier to pay above and beyond its coverages to

settle claims against its insured where the carrier’s claim

handling demonstrates good faith.” (Id.).

Now, the Decamps seek to exclude Gray’s testimony. (Doc.

# 46). State Farm has responded (Doc. # 52), and the Motion

is ripe for review.

II. Discussion

Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by

knowledge, skill, experience, training, or

education may testify in the form of an opinion or

otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to

determine a fact in issue; (b) the testimony is

based on sufficient facts or data; (c) the

testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied

the principles and methods to the facts of the case.

Fed. R. Evid. 702.

Implementing Rule 702, Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993), requires district courts to ensure

that any and all scientific testimony or evidence admitted is

both relevant and reliable. See Id. at 589–90. The Daubert

analysis also applies to non-scientific expert testimony.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

District courts must conduct this gatekeeping function “to

ensure that speculative, unreliable expert testimony does not

reach the jury under the mantle of reliability that

accompanies the appellation ‘expert testimony.’” Rink v.

Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).

The Eleventh Circuit “requires trial courts acting as

gatekeepers to engage in a ‘rigorous three-part inquiry.’”

Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).

The district court must assess whether:

(1) the expert is qualified to testify competently

regarding the matters he intends to address; (2)

the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined

by the sort of inquiry mandated in Daubert; and (3)

the testimony assists the trier of fact, through

the application of scientific, technical, or

specialized expertise, to understand the evidence

or to determine a fact in issue.

Id. The proponent of the expert testimony bears the burden of

showing, by a preponderance of the evidence, that the

testimony satisfies each of these requirements. Id.

1. Qualifications

The first question under Daubert is whether the proposed

expert witness, Ms. Gray, is qualified to testify competently

regarding the matters she intends to address. City of

Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 563 (11th

Cir. 1998). An expert may be qualified “by knowledge, skill,

experience, training, or education.” Fed. R. Evid. 702.

“Determining whether a witness is qualified to testify as an

expert ‘requires the trial court to examine the credentials

of the proposed expert in light of the subject matter of the

proposed testimony.’” Clena Invs., Inc. v. XL Specialty Ins.

Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)(quoting Jack v.

Glaxo Wellcome, Inc., 239 F. Supp. 2d 1308, 1314–16 (N.D. Ga.

2002)).

“This inquiry is not stringent, and so long as the expert

is minimally qualified, objections to the level of the

expert’s expertise [go] to credibility and weight, not

admissibility.” Id. (citations and internal quotation marks

omitted). The Court is mindful that its “gatekeeper role under

Daubert ‘is not intended to supplant the adversary system or

the role of the jury.’” Maiz v. Virani, 253 F.3d 641, 666

(11th Cir. 2001)(quoting Allison v. McGhan, 184 F.3d 1300,

1311 (11th Cir. 1999)).

As the Decamps failed to arrange their Motion based on

the three Daubert requirements, it is difficult to determine

at times to which requirement their arguments are directed.

Regarding qualifications, the Decamps argue Gray should not

be permitted to testify because she “has not gained any

expertise concerning ‘friendly suits’ and/or an insurer’s

payment of guardianship and/or estate proceedings for a

claimant in order to effectuate a settlement . . . through

‘knowledge, skill, experience, training or education.’” (Doc.

# 46 at 11).

The Court rejects the Decamps’ arguments regarding

Gray’s qualifications. Gray has twenty-eight years of

experience as an attorney dealing with insurance litigation

— four years of which were spent as the Director of Claim

Legal for Travelers of Florida and eight years as the Director

of Claim Legal for Direct General Insurance Company. (Doc. #

46-1 at 66-67). As a Director of Claim Legal, Gray “managed

extra-contractual claims and litigation” and “was also

responsible for the management of the company’s Major Case

Unit, which handled the most complex and high exposure

property and casualty claims; the preparation of claim

handling guidelines; and the preparation and presentation of

training on claim handling and coverage issues.” (Id. at 67).

She has also “train[ed] claim professionals in the good faith

handling of insurance claims.” (Id.).

This experience renders her at least minimally qualified

to give opinions in this insurance bad faith case. The Motion

is denied as to qualifications.

2. Reliability

The next question is whether Ms. Gray’s methodology is

reliable. “Exactly how reliability is evaluated may vary from

case to case, but what remains constant is the requirement

that the trial judge evaluate the reliability of the testimony

before allowing its admission at trial.” United States v.

Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004)(citing Fed. R.

Evid. 702, Advisory Committee Notes (2000)). There are four

recognized, yet non-exhaustive, factors a district court may

consider in evaluating reliability:

(1) whether the expert’s methodology has been

tested or is capable of being tested; (2) whether

the technique has been subjected to peer review and

publication; (3) the known and potential error rate

of the methodology; and (4) whether the technique

has been generally accepted in the proper

scientific community.

Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.

2016)(citations omitted). A district court can take other

relevant factors into account as well. Id. (citations

omitted).

“If the [expert] witness is relying solely or primarily

on experience, then,” in establishing reliability, “the

witness must explain how that 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.” Frazier, 387 F.3d at 1261 (citation and

internal quotation marks omitted). The Court’s analysis as to

reliability “focus[es] ‘solely on principles and methodology,

not on the conclusions that they generate.’” Seamon, 813 F.3d

at 988 (citation omitted).

The Decamps argue that Gray’s opinions are unreliable.

According to them, Gray “may be reliable on other Florida bad

faith matters, but she is not reliable as an expert in this

lawsuit on the custom and industry practices concerning

Florida insurers including State Farm paying or contributing

towards ‘friendly suits’ or otherwise paying for or

contributing towards guardianship or estate proceedings for

minor, incapacitated adult or wrongful death claimants.”

(Doc. # 46 at 13). They emphasize that Gray has not handled

any insurance claims or “any personal injury cases involving

where an insurer paid or contributed towards guardianship or

estate proceedings for a claimant when she was employed at

private law firms as a plaintiff or defense attorney.” (Id.

at 11-12). The Decamps also take issue with Gray’s not

reviewing certain prior instances in which State Farm did pay

for guardianships. (Id. at 12).

The Court disagrees with the Decamps, especially as the

Decamps focus on Gray’s conclusions rather than her method of

reaching those conclusions. Gray’s testimony is sufficiently

reliable regarding industry standards for paying above and

beyond the policy limits to establish guardianships. See

Trinidad v. Moore, No. 2:15-cv-323-WHA, 2017 WL 490350, at *2

(M.D. Ala. Feb. 6, 2017)(“Dillard’s opinions in his

supplemental report, like his opinions in his earlier report,

are sufficiently reliable because they are based upon his

personal knowledge and experience.”). And Gray has reviewed

the record in this case in order to reach her conclusions.

(Doc. # 46-1 at 67-68); see also Dudash v. S.-Owners Ins.

Co., No. 8:16-cv-290-JDM-AEP, 2017 WL 1969671, at *3 (M.D.

Fla. May 12, 2017)(denying a Daubert motion to exclude Ms.

Gray and stating that, as “[h]er opinions were formulated

based on her review of the record,” the “argument that her

review is unreliable is unpersuasive”).

Any alleged flaws in Gray’s methodology should be

addressed in cross-examination. See Maiz, 253 F.3d at 666

(“Vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are

the traditional and appropriate means of attacking

[debatable] but admissible evidence.” (citations and internal

quotation marks omitted)).

Additionally, the Decamps maintain that Gray is

unreliable because she “merely parrot[s] State Farm and its

counsel’s legal position, with nothing more to add.” (Doc. #

46 at 14). The Court again disagrees. As State Farm chose her

as its expert, it is no surprise that Gray’s opinions are in

State Farm’s favor and it does not suggest that Gray’s

opinions are unreliable. Furthermore, Gray’s report provides

legitimate expert opinions in this case, regarding what

insurance industry standards involve and whether State Farm

complied with those standards.

In short, Gray’s opinions, which are derived from her

long and relevant experience in the insurance and legal

industries, are reliable.

3. Assistance to Trier of Fact

Expert testimony must also assist the trier of fact.

Fed. R. Evid. 702. “By this requirement, expert testimony is

admissible if it concerns matters that are beyond the

understanding of the average lay person.” Frazier, 387 F.3d

at 1262 (citation omitted). “[T]he court must ‘ensure that

the proposed expert testimony is “relevant to the task at

hand,” . . . i.e., that it logically advances a material

aspect of the proposing party’s case.’” Allison, 184 F.3d at

1312 (citation omitted).

So, while “[t]he ‘basic standard of relevance . . . is

a liberal one,’ Daubert, 509 U.S. at 587, . . .[,] if an

expert opinion does not have a ‘valid scientific connection

to the pertinent inquiry[,]’ it should be excluded because

there is no ‘fit.’” Boca Raton Cmty. Hosp., Inc. v. Tenet

Health Care Corp., 582 F.3d 1227, 1232 (11th Cir.

2009)(citations omitted). “Proffered expert testimony

generally will not help the trier of fact when it offers

nothing more than what lawyers for the parties can argue in

closing arguments.” Frazier, 387 F.3d at 1262-63 (citation

omitted).

The Decamps argue that Gray’s opinion that payment of

the guardianship and special needs trust fees was not required

by the terms of the insurance policy is an unhelpful and

inadmissible legal conclusion that “usurp[s] this Court’s

authority to construe the insurance contract.” (Doc. # 46 at

8). “No witness may offer legal conclusions or testify to the

legal implications of conduct.” Dudash, 2017 WL 1969671, at

*2.

The Court agrees that Gray may not opine as to whether

payment of guardianship and special needs trust fees was

required under the terms of the insurance policy. Nor may she

provide other legal conclusions, such as what legal duties

existed for State Farm. In recognition of the prohibition on

legal conclusions, State Farm concedes that it is not asking

Gray to offer “expert opinions concerning the interpretation

of the insurance policy, the legal duties owed by an insurer,

or the mental state or credibility of any witness.” (Doc. #

52 at 2).

Having determined that Gray may not offer such legal

conclusions, the Court clarifies that not all of Gray’s

opinions should be excluded. Gray’s testimony will be helpful

to the jury regarding the standards and practices of the

insurance industry and whether State Farm complied with such

standards. See Pacinelli v. Carnival Corp., No. 18-22731-Civ-

WILLIAMS/TORRES, 2019 WL 3252133, at *6 (S.D. Fla. July 19,

2019)(finding expert testimony on certain industry standards

helpful as they were “beyond the common knowledge of the

average [layperson]”); see also Maharaj v. GEICO Cas. Co.,

No. 12-80582-CIV, 2015 WL 11279830, at *6 (S.D. Fla. Mar. 12,

2015)(“The Court finds that opinion testimony from a

qualified witness as to the claims handling standards within

the insurance industry, and whether or not Defendant’s

actions met those standards, will help the jury understand

the evidence and determine a fact in issue. The jury does

not, however, need any assistance in applying the law to this

testimony and making a factual determination as to whether or

not GEICO acted in ‘bad faith.’”). This is the case even

regarding Gray’s opinion that State Farm exceeded industry

standards in certain respects. (Doc. # 46-1 at 81-82, 85).

Thus, Gray may testify as to those matters.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

Plaintiffs Christine and Constance Decamp’s Daubert

Motion to Exclude the Opinions of Kelly Gray, Esq. (Doc. #

46) is GRANTED in part and DENIED in part. The Motion is

granted to the extent Ms. Gray may not offer legal conclusions

or testify to the legal implications of conduct. The Motion

is denied in all other respects.

DONE and ORDERED in Chambers in Tampa, Florida, this 7th

day of September, 2021.

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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