The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 19-cv-22195-BLOOM/Louis
PALMETTO 241 LLC, et al.,
Plaintiffs,
v.
SCOTTSDALE INSURANCE COMPANY,
Defendant.
________________________________/
OMNIBUS ORDER
THIS CAUSE is before the Court upon Plaintiffs’ Motion in Limine, ECF No. [26]
(“Plaintiffs’ Motion”), and Defendant’s Motion in Limine, ECF No. [29] (“Defendant’s Motion”)
(collectively, “Motions”). The Court has considered the Motions, all supporting and opposing
submissions (ECF Nos. [34], [42], and [45]), the record in this case, the applicable law, and is
otherwise fully advised. For the reasons set forth below, Plaintiffs’ Motion is granted in part and
denied in part, and Defendant’s Motion is granted in part and denied in part.
I. BACKGROUND1
Plaintiffs’ Motion seeks to preclude Defendant from presenting arguments and evidence
regarding the following at the upcoming trial:
1. Motion in Limine Issue #1: Prevent Defendant from testifying about what is and what
is not covered under the insurance policy;
2. Motion in Limine Issue #2: Prevent Defendant from using its witnesses to testify as to
the opinions and conclusions of other witnesses, including expert witnesses;
1 The Court assumes that the parties are familiar with the facts of this case. See ECF No. [49].
3. Motion in Limine Issue #3: Prevent statements about the number or percentage of other
hurricane damage claims allegedly paid, or number of hurricane damage cases
confirmed;
4. Motion in Limine Issue #4: Prevent “hired gun” arguments or otherwise disparaging
expert witnesses.
Similarly, Defendant’s Motion seeks to preclude Plaintiffs from introducing the following
at the upcoming trial:
1. Motion in Limine Issue #1: Testimony and evidence regarding Defendant’s claims
handling practices and procedures on this claim and other claims;
2. Motion in Limine Issue #2: Testimony and evidence regarding conditions of properties
other than the subject property.
The Court will address each Motion individually below.
II. LEGAL STANDARD
“In fairness to the parties and their ability to put on their case, a court should exclude
evidence in limine only when it is clearly inadmissible on all potential grounds.” United States v.
Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010). “The movant has the burden of
demonstrating that the evidence is inadmissible on any relevant ground.” Id. “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.” 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). Likewise, “[i]n light of the preliminary or preemptive
nature of motions in limine, ‘any party may seek reconsideration at trial in light of the evidence
actually presented and shall make contemporaneous objections when evidence is elicited.’” Holder
v. Anderson, No. 3:16-CV-1307-J-39JBT, 2018 WL 4956757, at *1 (M.D. Fla. May 30, 2018)
(quoting Miller ex rel. Miller v. Ford Motor Co., No. 2:01CV545FTM-29DNF, 2004 WL
4054843, at *1 (M.D. Fla. July 22, 2004)); In re Seroquel Prod. Liab. Litig., 2009 WL 260989, at
*1 (“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.” (citing United States v. Connelly,
874 F.2d 412, 416 (7th Cir. 1989))).
Evidence is admissible if relevant, and evidence is relevant if it has any tendency to prove
or disprove a fact of consequence. Fed. R. Evid. 401, 402; Advisory Comm. Notes, Fed. R. Evid.
401 (“The standard of probability under the rule is ‘more probable than it would be without the
evidence.’”); United States v. Patrick, 513 F. App’x 882, 886 (11th Cir. 2013). A district court
may exclude relevant evidence under Rule 403 if “its probative value is substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
of time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is an
extraordinary remedy which the district court should invoke sparingly, and the balance should be
struck in favor of admissibility.” Patrick, 513 F. App’x at 886 (citing United States v. Lopez, 649
F.3d 1222, 1247 (11th Cir. 2011); United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir.
2010)). Rule 403’s “major function . . . is limited to excluding matter of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial effect.” United States v.
Grant, 256 F.3d 1146, 1155 (11th Cir. 2001). The movant has the burden to demonstrate that the
evidence is inadmissible. Gonzalez, 718 F. Supp. 2d at 1345.
III. DISCUSSION
A. Plaintiffs’ Motion
i. Evidence regarding what is and is not covered under the policy
Plaintiffs request the Court “enter an Order prohibiting Defendant from eliciting any
testimony from its agents, employees, representatives, adjusters, and witnesses regarding coverage
and/or exclusions in the insurance policy, including that certain losses or damage are excepted,
excluded, and are (or are not) covered under the insurance policy.” ECF No. [26] at 2. According
to Plaintiffs, an “insurer’s witness may not tell the jury what is and is not covered under the Policy.”
Id. at 3.
Plaintiffs argue that “[c]ontract interpretation, including coverage under an insurance
policy, is an issue of law for the judge to decide, not an issue of opinion for an insurance adjuster,
or even an issue of fact for the jurors to decide.” Id. Plaintiffs add that testimony “about the
contents and coverage of the applicable insurance policy would merely be cumulative to the policy
itself, which is best evidence of its contents” and that “[t]o the extent Scottsdale would argue that
certain exclusions require explanation or interpretation, Scottsdale would really be arguing the
exclusion is ambiguous,” in which case the Court “would be required to interpret the exclusion
against Scottsdale and in favor of coverage.” Id. at 3-4. Finally, Plaintiffs maintain that even if
Defendant could offer testimony about the terms and exclusions of the policy, “such testimony
would be expert witness testimony” and Defendant has not identified any expert in policy
construction, coverage, or exclusions. Id. at 4.
Defendant responds that Plaintiffs do not cite to any specific evidence they seek to preclude
but rather “broadly seek to preclude [Defendant] from offering testimony regarding the existence
of policy provisions in the contract between the parties, the basis for [Defendant’s] coverage
position in this matter, and [Defendant’s] claims investigations.” ECF No. [34] at 2. Defendant
notes that Plaintiff does not cite any specific policy provision at issue. Id. at 3-4. According to
Defendant, because Plaintiffs have brought a breach of contract claim, the terms of the contract,
Defendant’s claims determinations and its claims investigation “are all essential facts in this
matter.” Id. at 3. Similarly, Defendant agrees with Plaintiff that “it is for the jury to determine
whether the facts of the case fall within the scope of coverage as defined by the court.” Id. (citation
omitted). Thus, Defendant posits that it is “necessary” for it to put on testimony regarding the
policy’s applicable coverages, exclusions, and conditions, as well as how Defendant applied the
provisions to the facts at hand to reach its coverage determination. Id.
Upon review and consideration, Plaintiffs’ Motion as to issue #1 is denied.
“Motions in limine should be limited to specific pieces of evidence and not serve as reinforcement
regarding the various rules governing trial, or (re)-addressing substantive motions such as motions
for summary judgment.” Ctr. Hill Courts Condo. Ass’n, Inc. v. Rockhill Ins. Co., No. 19-CV-
80111, 2020 WL 496065, at *2 (S.D. Fla. Jan. 30, 2020) (citation omitted). Further, a district court
may deny a motion in limine when it “lacks the necessary specificity with respect to the evidence
to be excluded.” Id. (citation omitted). Here, Plaintiffs’ Motion does not cite to any specific policy
provision nor to any specific testimony from a specifically-identified witness. Instead, Plaintiffs
seeks an across-the-board prohibition against Defendant from “eliciting any testimony” regarding
coverage and/or exclusions under the policy. This “lacks the necessary specificity with respect to
the evidence to be excluded.” Id. Further, Plaintiffs’ request fails to accord with the underlying
nature of this suit. Plaintiffs seek to hold Defendant liable for breach of contract, and as they
concede, Defendant “provided coverage to a portion of the Plaintiffs’ claim through the ensuing
loss provision of the Policy,” and an issue in the case is “whether certain damage was excluded
from coverage under the Policy; and if not, the amount of money required to remediate and repair
Plaintiffs’ home.” ECF No. [26] at 2. Thus, a categorical bar on Defendant presenting evidence
regarding coverage and/or exclusions under the policy is unjustified. The Court will address any
objections to such evidence or testimony at trial, as appropriate.
ii. Evidence regarding opinions and conclusions of witnesses
Plaintiffs request the Court “enter an Order prohibiting Defendant from using any of its
witnesses (including its corporate representative and its expert witnesses) to testify as to the
opinions and conclusions of other witnesses, including expert witnesses.” ECF No. [26] at 5.
According to Plaintiffs, Florida law “prohibits a witness from testifying as to the opinions and
conclusions of another witness, as such testimony is improper bolstering and hearsay for which no
exceptions lie,” and an “expert witness may not bolster his/her opinion [by] referencing the
opinions of other experts.” Id. (citation omitted). Likewise, Plaintiffs state that an expert witness
in one field is not permitted to testify as to an expert opinion given to him by another expert. Id. at
6.
Defendant counters that Plaintiffs provide no specific information concerning which
witnesses Plaintiffs anticipate providing the allegedly impermissible testimony, nor how any of
the situations reflected in Plaintiffs’ Motion apply to this case. ECF No. [34] at 4. Additionally,
Defendant states that “[w]hile Florida law prohibits witnesses from commenting on the opposing
party’s witnesses themselves, Florida law permits an expert witness to critique another expert
witness’s methodology.” Id. at 5 (citing Nowitzke v. State, 572 So. 2d 1346, 1352 (Fla. 1990)).
Similarly, “questions couched to cause one expert to delineate the facts, factors, formulae and
rationale used in the analysis leading to the opposing expert’s opinion, and to do the same as to his
own opinion, and then to compare the predicates upon which the two opinions were based, are
proper.” Id. (citation omitted). Moreover, Defendant maintains that “[t]he result of such a
comparison may show that a party’s witness failed to consider all proper factors, or considered
improper factors, or erred in the weight or effect attributed to certain factors,” and such questions
give “the jury better insight into the bases supporting differing opinions so that the jury may better
evaluate and weigh the witnesses’ testimony by understanding and comparing how the expert
witnesses reach different conclusions.” Id. (citations omitted).
Upon review, the Court concludes that Plaintiffs’ Motion as to issue #2, which seeks a ban
on using a witness to “testify as to the opinions and conclusions of other witnesses,” is patently
overbroad, and it inappropriately inhibits the jury’s ability to evaluate expert testimony. “Review
of [the] case law reveals that an expert may properly explain his or her opinion on an issue in
controversy by outlining the claimed deficiencies in the opposing expert’s methodology so long
as the expert does not attack the opposing expert’s ability, credibility, reputation, or competence.
This rule recognizes that a trial should not be reduced to a debate regarding the ability, credibility,
or reputation of an expert based on the perception of another expert.” Network Publications, Inc.
v. Bjorkman, 756 So. 2d 1028, 1031 (Fla. 5th DCA 2000). To the extent Plaintiffs believe
Defendant’s witnesses provide improper testimony, the Court will address any objections to such
evidence or testimony at trial.
iii. Number or percentage of hurricane damage claims allegedly paid
or cases confirmed
Plaintiffs request the Court “enter an Order prohibiting Defendant from introducing certain
evidence, argument, testimony, or inferences at trial related to the number or percentage of other
hurricane damage claims allegedly paid, or the number of hurricane damage cases confirmed.”
ECF No. [26] at 7. According to Plaintiffs, they expect Defendant will argue and present evidence
regarding the number or allegedly high percentage of homeowners’ insurance claims or hurricane
damage claims it pays, but “[w]hether or not Scottsdale has paid other claims—or even whether it
has paid every single other claim—has no bearing [on] whether Scottsdale breached the Policy in
this case.” ECF No. [26] at 7 (emphasis in original). In Plaintiffs’ view, Defendant’s payment of
other claims or determination of hurricane damage at other homes is not relevant to the issues in
dispute, and evidence directed at bad faith or claims handling are not at issue in this case. Id. at 8-
9. Further, Plaintiffs state that evidence of claims settlement is inadmissible, and that because
“effects of a hurricane on a property vary from home to home,” an “apples and oranges”
comparison between two different homes with different hurricane damage is improper and can be
prejudicial. Id. at 9.
In response, Defendant asserts that there is no evidence it intends to offer any testimony at
trial regarding the percentage or number of claims it has paid in other matter, and that it, in fact,
moves in limine to preclude testimony and evidence regarding its claims handling practices and
procedures of this and any other claim, and testimony or evidence as to other properties. ECF No.
[34] at 6-7.
Upon review, the Court agrees that evidence of the number or percentage of hurricane
damage claims allegedly paid, or the number of hurricane damage cases confirmed, is irrelevant
to the ultimate issues in dispute. Whether Defendant ordinarily pays or has paid similar claims in
other cases does not make it more or less likely that a breach of the policy occurred under the facts
at hand. Accordingly, Plaintiffs’ Motion as to issue #3 is granted.
iv. “Hired gun” arguments or disparaging expert witnesses
Plaintiffs request the Court “enter an Order prohibiting Defendant from making ‘hired gun’
type arguments or otherwise disparaging remarks about Plaintiffs’ expert witnesses in this case.”
ECF No. [26] at 10. According to Plaintiffs, they expect Defendant will “try to argue to the jury
that Plaintiffs’ expert witnesses are ‘hired guns’ against the insurance industry or make other
disparaging and derogatory comments about Plaintiffs’ experts.” ECF No. [26] at 10. They assert
that Defendant may not “elicit or introduce any testimony that criticizes the ability, reputation, or
competence of Plaintiffs’ experts,” and that while an expert’s methodology can be critiqued,
“Florida law prohibits witnesses from commenting on the opposing party’s witnesses themselves.”
Id. at 11. “One impeaches an expert’s opinion by the introduction of a contrary opinion based on
the same facts. It is improper to impeach an expert witness by eliciting from another witness what
he thinks of that expert.” Id. at 11-12 (quoting Nowitzke, 572 So. 2d at 1352).
In response, Defendant maintains that it does not intend to refer to Plaintiffs’ experts as
“hired guns” nor intends to make any inappropriate or disparaging comments about Plaintiffs’
experts at trial. ECF No. [34] at 7. However, Defendant states that it reserves the right to explain
and question Plaintiffs’ experts’ inconsistent statements and to impeach witnesses. Id. at 7-8.
Further, Defendant agrees that attacking an expert’s ability, credibility, or competence can be
improper, but the Plaintiffs’ Motion on this point is “overly broad,” potentially limits Defendant’s
“ability to properly and appropriately impeach Plaintiffs’ witnesses at trial,” and seeks to “broadly
exclude factual information that directly relates to the disputed issues in the instant action.” Id. at
8.
Upon review, the Court grants in part and denies in part Plaintiffs’ Motion as to issue #4.
Neither party may refer to the opposing party’s experts as “hired guns” or use similar denigrating
language. However, the methodology, conclusions, and reasoning of the expert witnesses are not
beyond examination, and where appropriate, can be used for impeachment purposes. Therefore,
the Court will address any objections to the experts’ testimony at trial.
B. Defendant’s Motion
i. Defendant’s claims handling practices and procedures
Defendant requests the Court preclude Plaintiffs from introducing testimony and evidence
regarding Defendant’s claims handling practices and procedures on this claim and other claims.
ECF No. [29] at 1. According to Defendant, this action “does not concern claims of bad faith
handling or any other claims handling practices,” and “any mention” of Defendant’s “claims
handling practices and procedures of this claim and other claims would be outside the scope of a
contract reformation or breach of contract action” and would be “unduly prejudicial” “as
references to claims handling involves allegations of bad faith.” Id. at 2. Further, in Defendant’s
view, such evidence would create jury confusion as it could lead to the incorrect belief that this
case involves bad faith allegations. Id. at 2-3. Likewise, Defendant asserts that bad faith issues are
premature until the coverage action is resolved. Id. at 3-5. Thus, “any attempt to introduce evidence
that carries overtones, undertones, or inferences of claims handling practices and procedures
(including references to good faith or bad faith) should be precluded, and such evidence deemed
inadmissible[.]” Id. at 3; see also id. at 5.
In response, Plaintiffs argue that Defendant’s Motion as to issue #1 should be denied
because the motion was untimely filed, and the requested items in limine are “overbroad and will
operate to limit evidence and testimony that is directly relevant to this matter.” ECF No. [42] at 1.
The arguments regarding untimeliness are meritless.2 Regarding the latter, Plaintiffs assert that
Defendant did not define “claims handling practices and procedures,” did not provide “specific
2 Plaintiffs state that April 15, 2020 was the deadline for the parties to file all motions in limine.
ECF No. [42] at 3 (citing ECF No. [9] at 2). Because Defendant’s Motion was filed on April 24,
2020, they assert that the motion is untimely. Plaintiffs are mistaken. On March 16, 2020, the Court
amended the Scheduling Order and set April 24, 2020 as the deadline for the parties to file motions
in limine. See ECF No. [21]. Thus, Defendant’s Motion is timely.
examples of the type of evidence or testimony that falls” within the category, and Defendant “seeks
to exclude evidence of the parties’ post-loss actions which are directly relevant to establish the
breach of contract action in this matter.” Id. at 2. Further, Plaintiffs note that this Court previously
determined that parties’ actions following a loss are directly relevant to establishing a breach of
contract claim in a first-party context. See id. (citing Ctr. Hill Courts Condo. Ass’n, Inc., 2020 WL
496065, at *2 (denying motion in limine to exclude evidence that insurer acted in good faith or
bad faith until the coverage action is resolved)). In Plaintiffs’ view, the phrase “claims handling
practice and procedures” is “so overbroad and vague that nearly every action taken by the
Defendant in connection with this claim can fall within the definition of that phrase.” Id. Thus,
Plaintiffs suggest that “any limitation of evidence and testimony regarding aspects of the
investigation of this specific claim need to be made on a case-by-case basis.” Id. at 5.
In reply, Defendant asserts that it is “clearly not seeking to preclude testimony and evidence
regarding the specific actions taken by [it] in its investigation of this claim” but rather seeks to
preclude “evidence of [its] general claim practices and bad faith.” ECF No. [45] at 2-3. Defendant
adds that “any mention” of its claims handling practices and procedures of this claim and
investigation of other claims is outside the scope of this lawsuit, and that Plaintiffs have not
presented “any reason why it would be necessary or appropriate to introduce testimony or evidence
regarding bad faith or [Defendant’s] claims handling practices and procedures.” Id. at 3.
Upon review, the Court grants in part and denies in part Defendant’s Motion as to issue #1.
Defendant correctly notes that this is a breach of contract action, not a bad faith lawsuit. It also
rightly notes that bad faith actions are not ripe until the coverage dispute is resolved. However,
Defendant fails to show why potential evidence of its claims handling practices and procedures
used on this claim is “unduly prejudicial” or so confusing that it should be excluded under Rule
403, Fed. R. Evid. Likewise, the Court cannot categorically exclude evidence at this point, without
presentation of specific evidence before it, where there are “overtones, undertones, or inferences
of claims handling practices and procedures.” ECF No. [29] at 3. As Plaintiffs point out, a blanket
bar of evidence regarding claims handling “will result in excluding information that is directly
relevant to establishing their cause of action,” and it is necessary for them to “put forth evidence
and testimony regarding specific actions taken by Defendant in investigating the claim that is the
basis for this lawsuit.” ECF No. [42] at 4. Moreover, Defendant fails to address Ctr. Hill Courts
Condo. Ass’n, Inc., 2020 WL 496065, at *2, which recently denied a similar motion in limine.
Evidence of Defendant’s claims handling practices and procedures in other claims,
however, is not relevant to this matter. Therefore, to the extent evidence or testimony regarding
specific aspects of Defendant’s claims handling practices and procedures are objectionable, they
can be addressed at trial.
ii. Conditions of properties other than the subject property
Defendant requests the Court preclude Plaintiffs from introducing testimony and evidence
regarding conditions of properties other than the subject property. ECF No. [29] at 1. According
to Defendant, this lawsuit “does not concern whether [h]urricane damage, water damage, wind
damage, and/or mold damage occurred with respect to other properties located near the subject
property.” Id. at 5. Defendant states that it “evaluated the damage that [Plaintiffs] reported at the
subject property, and [Defendant’s] coverage decision was based upon the conditions observed at
the subject property, not other properties to which [Defendant’s] consultants had no access.” Id. It
posits that the “conditions of other properties, or how other properties in the area were affected by
Hurricane Irma, has no bearing on the conditions of the subject property and would not be relevant
to the question of [] the scope of any covered loss at the subject property.” Id. at 5-6. Similarly,
Case No. 19-cv-22195-BLOOM/Louis
Defendant argues that “investigations, adjustments, monetary settlements, and/or conclusions of
investigations concerning neighboring properties are of no consequence” to Plaintiffs’ claims “for
damage at its property based on conditions unique to the subject property.” /d. at 6.
Plaintiffs did not respond to Defendant’s Motion on this issue, but rather addressed
Defendant’s Motion as to issue #1 only. Upon review, the Court agrees that evidence of conditions
of other properties is not relevant in this action. The conditions of other properties would not make
it more or less likely that Defendant breached its contract based upon the facts and conditions
unique to Plaintiffs’ property and the terms of the policy. Indeed, the salient issues in dispute are
whether the alleged damage to the subject property is covered, and if so, to what extent. Therefore,
Defendant’s Motion as to issue #2 is granted.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiffs’ Motion, ECF No. [26], is GRANTED IN PART AND DENIED IN
PART consistent with this Order.
2. Defendant’s Motion, ECF No. [29], is GRANTED IN PART AND DENIED IN
PART consistent with this Order.
DONE AND ORDERED in Chambers at Miami, Florida, on May 26, 2020.
UNITED STATES DISTRICT JUDGE
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