McDonald v. Progressive Direct Insurance Company

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CRYSTAL MCDONALD,
Plaintiff,
v.
PROGRESSIVE DIRECT INSURANCE
COMPANY,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-23-1000-D
ORDER
Before the Court is Plaintiff Crystal McDonald’s Motion in Limine [Doc. No. 61]
and Defendant Progressive Direct Insurance Company’s Motion in Limine [Doc. No. 62].
Defendant filed a response [Doc. No. 65] to Plaintiff’s Motion, to which Plaintiff filed a
reply [Doc. No. 66]. Plaintiff filed a response [Doc. No. 64] to Defendant’s Motion, to
which Defendant filed a reply [Doc. No. 67]. The Motions are fully briefed and at issue.
BACKGROUND
The facts of the present case are more fully set out in the Court’s Order denying
Plaintiff’s motion for partial summary judgment and Defendant’s motion for summary
judgment [Doc. No. 68] and will not be restated at length. In summary, Defendant issued
Plaintiff an automobile insurance policy that provided coverage for her vehicle. In August
2023, Plaintiff and her husband were involved in an automobile collision when Plaintiff’s
husband was driving her vehicle. Plaintiff alleges that her husband was driving her vehicle
at the time of the collision because she was seeking emergency medical treatment.
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 1 of 14

2
Defendant conducted an investigation and declined to provide coverage under the
policy’s endorsement that excludes coverage when the vehicle is being operated by a driver
who was not listed on the declarations page and was residing in the named insured’s
household as a permanent resident. Plaintiff’s husband was not listed on the declarations
page and was a permanent resident in Plaintiff’s household at the time of the accident.
However, the endorsement does not apply if, at the time of the loss, the unlisted driver was
operating the vehicle to obtain emergency medical treatment for a passenger in the vehicle.
Plaintiff alleges that her husband was operating the vehicle at the time of the accident
because she was seeking emergency medical treatment. Accordingly, Plaintiff asserts that
Defendant wrongfully denied her request for payment under the policy.
Plaintiff’s claims for bad faith and negligent procurement against Defendant remain.
LEGAL STANDARD
Although motions in limine are not formally recognized under the Federal Rules,
district courts have long recognized the potential utility of pretrial rulings under the courts’
inherent powers to manage the course of trial proceedings. Luce v. United States, 469 U.S.
38, 41 n.4 (1984). “A motion in limine presents the trial court with the opportunity ‘to rule
in advance of trial on the relevance of certain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or interruption of, the trial.’” Wilkins v.
Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007) (quoting Palmieri v. Defaria, 88
F.3d 136, 141 (2d Cir. 1996)). Although such pretrial rulings can save time and avoid
interruptions at trial, “a court is almost always better situated during the actual trial to assess
the value and utility of evidence. Consequently, a court should reserve its rulings for those
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 2 of 14

3
instances when the evidence plainly is ‘inadmissible on all potential grounds’ … and it
should typically defer rulings on relevancy and unfair prejudice objections until trial when
the factual context is developed[.]” Id. at 1218-19 (citations omitted); see also Hawthorne
Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (“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.”).
Some in limine rulings, such as relevance, are preliminary in nature because the
required balancing may be reassessed as the evidence is actually presented. Accordingly,
“[a] district court ‘may change its ruling at any time for whatever reason it deems
appropriate.’” United States v. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996) (quoting Jones
v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995)); see also Luce, 469 U.S. at 41-42 (“The ruling
is subject to change when the case unfolds, particularly if the actual testimony differs from
what was contained in the defendant’s proffer. Indeed, even if nothing unexpected happens
at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous
in limine ruling.”).
“A motion in limine should address specific evidence that is irrelevant, inadmissible
or prejudicial. Thus, motions in limine that generally lack specificity as to particular evidence
are properly denied.” Shotts v. GEICO General Ins. Co., CIV-16-1266-SLP, 2018 WL
4832625, at *1 (W.D. Okla. July 12, 2018) (citing Kinzey v. Diversified Servs., Inc., No. 15-
1369-JTM, 2017 WL 131614, at *1 (D. Kan. Jan. 13, 2017)). “Without a detailed
presentation of the facts which give rise to the issue sought to be addressed by the motion in
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 3 of 14

4
limine, a motion in limine amounts to little more than a request that the court faithfully apply
the rules of evidence.” Hussein v. Duncan Regional Hospital, Inc., CIV-07-439-F, 2009 WL
10672480, at *1 (W.D. Okla. Oct. 20, 2009).
DISCUSSION
Plaintiff’s Motion in Limine
I. 	Evidence that Defendant Did Not Rely Upon in Denying Plaintiff’s Claim.
A. Plaintiff’s Marital Status.
Plaintiff requests the Court preclude Defendant from admitting any evidence or
argument regarding Plaintiff’s marital status or her failure “to check the ‘married’ box” when
applying for the policy. She asserts that the admission of her marital status and failure to
disclose her marital status should not be permitted because it would be prejudicial, as
Defendant’s denial of her claim was not based on her omission. Thus, she argues that such
evidence and arguments cannot be used as a defense against her bad faith claim.1
Defendant argues that evidence and argument regarding Plaintiff’s marital status and
failure to disclose her marital status should be allowed at trial because it is relevant and
probative of Plaintiff’s negligent procurement claim. Defendant asserts that her marital status
is relevant because she has alleged that it was negligent for failing to obtain a policy that
provided coverage for when her husband was driving her vehicle. Moreover, it generally
1 Plaintiff’s argument that evidence regarding her marital status should not be permitted
because it has no bearing on the meaning of the term “permanent resident” in the policy
was rendered moot by the Court’s Order on her motion for partial summary judgment and
Defendant’s motion for summary judgment. [Doc. No. 68]. Indeed, the Court concluded,
in part, that her husband was a “permanent resident” under the policy’s endorsement at
issue. Id.
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 4 of 14

5
asserts evidence that she misrepresented her marital status is probative of her bad faith claim
for the same reasons as her negligent procurement claim.
Under Fed. R. Evid. 403, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by . . . unfair prejudice.” Rule 403 favors admissibility,
and the Court should “give the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d
1262, 1274 (10th Cir. 2002).
The Court finds that evidence of Plaintiff’s marital status and failure to disclose her
marital status in the application process and renewal process may be relevant to her negligent
procurement claim, and Defendant’s defenses to such claim. However, as to Plaintiff’s bad
faith claim, Defendant will not be allowed to argue that its denial of Plaintiff’s claim was
reasonable because she misrepresented her marital status in her policy application or
renewals, as misrepresentation was not a stated basis in its denial letter. See Buzzard v.
Farmers Ins. Co., Inc., 1991 OK 127, ¶ 14, 824 P.2d 1105, 1109 (“The decisive question is
whether the insurer had a good faith belief, at the time its performance was requested, that it
had justifiable reason for withholding payment under the policy.”) (quotation and citation
omitted) (original emphasis).
Accordingly, 	regarding 	Plaintiff’s 	negligent 	procurement 	claim, 	the 	Court
RESERVES ruling on this issue, opting instead to consider it in context, if the issue is raised
during trial. Furthermore, regarding Plaintiff’s bad faith claim, Plaintiff’s Motion on this
point is GRANTED.
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 5 of 14

6
B. Plaintiff’s Husband’s Residence.
Plaintiff requests the Court preclude any testimony or evidence regarding her
husband’s residence or her failure to disclose his residence, because she alleges that such
information is irrelevant and prejudicial as Defendant did not rely upon it in denying her
claim.2
Defendant argues that evidence and argument regarding Plaintiff’s husband’s
residence should be permitted because it is relevant to her negligent procurement claim and
bad faith claim.
Under Fed. R. Evid. 403, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by . . . unfair prejudice.” Rule 403 favors admissibility,
and the Court should “give the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Deters, 202 F.3d at 1274.
The Court finds that evidence of Plaintiff’s husband’s residence and her failure to
disclose her husband’s residence in the application and renewal process may be relevant to
her negligent procurement claim, and Defendant’s defenses to such claim. However, as to
her bad faith claim, Defendant will not be allowed to argue that its denial of her claim was
reasonable because she misrepresented her husband’s residence on her policy application or
renewals, as misrepresentation was not a stated basis in its denial letter. See Buzzard, 1991
2 Plaintiff’s argument that evidence regarding her husband’s residence should not be
permitted because it has no bearing on the meaning of the term “permanent resident” in the
policy was rendered moot by the Court’s Order on her motion for partial summary
judgment and Defendant’s motion for summary judgment. [Doc. No. 68]. Indeed, the Court
concluded, in part, that her husband was a “permanent resident” under the policy. Id.
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 6 of 14

7
OK 127, ¶ 14, 824 P.2d at 1109. (“The decisive question is whether the insurer had a good
faith belief, at the time its performance was requested, that it had justifiable reason for
withholding 	payment 	under 	the 	policy.”) 	(quotation 	and 	citation 	omitted) 	(original
emphasis).
Accordingly, 	regarding 	Plaintiff’s 	negligent 	procurement 	claim, 	the 	Court
RESERVES ruling on this issue, opting instead to consider it in context, if the issue is raised
during trial. Furthermore, regarding Plaintiff’s bad faith claim, Plaintiff’s Motion on this
point is GRANTED.
C. Evidence Obtained Through Depositions that Supports Defendant’s
Denial of Plaintiff’s Claim.
Plaintiff requests the Court preclude Defendant from introducing her and her
husband’s deposition testimony regarding whether she was seeking emergency medical
treatment at the time of the collision, because it did not rely upon or consider such
information in evaluating and denying her claim. She argues that the deposition testimony
should be excluded because it is irrelevant and prejudicial. Further, she asserts that the
admission of such testimony would be unduly prejudicial as it would confuse the issues and
mislead the jury. She further argues that Defendant should be limited to the evidence it relied
upon in issuing its denial.
Defendant objects and argues that Plaintiff and her husband’s testimony regarding the
nature of their errand on the date of the collision should not be precluded and is relevant
because it is probative of whether she was seeking emergency medical treatment at the time
of the collision. Defendant asserts that for her to succeed on her bad faith claim she must
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 7 of 14

8
prove that “[t]he insurer was required under the insurance policy to pay [Plaintiff’s] claim.”
Thus, it argues that Plaintiff will have to proffer testimony that she was seeking emergency
medical treatment at the time of the collision to succeed on her bad faith claim.
Under Fed. R. Evid. 403, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by . . . unfair prejudice.” Rule 403 favors admissibility,
and the Court should “give the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Deters, 202 F.3d at 1274.
To succeed on a bad faith claim, Plaintiff must prove: “(1) claimant was entitled to
coverage under the insurance policy at issue, (2) the insurer had no reasonable basis for
delaying payment, (3) the insurer did not deal fairly and in good faith with the claimant, and
(4) the insurer’s violation of its duty of good faith and fair dealing was the direct cause of
the claimant’s injury.” Ball v. Wilshire Ins. Co., 2009 OK 38, ¶ 21, 221 P.3d 717, 724.
Upon consideration, the Court finds that evidence, such as Plaintiff and her husband’s
deposition testimony, regarding whether emergency medical treatment was being sought at
the time of the collision is relevant to Plaintiff’s bad faith claim, and that she has failed to
show the probative value of the evidence is substantially outweighed by the danger of unfair
prejudice. Indeed, the first element of her bad faith claim requires her to show that Defendant
was required under the policy to pay her claim. Id. Thus, in accordance with the Court’s
Order on Plaintiff’s motion for partial summary judgment and Defendant’s motion for
summary judgment [Doc. No. 68], for her to succeed on her bad faith claim, she will have to
sufficiently prove that she was seeking emergency medical treatment at the time of the
collision.
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 8 of 14

9
Accordingly, Plaintiff’s Motion on this point is DENIED.3
II. 	Evidence Regarding Plaintiff’s Motivation to Obtain a Windfall or Secondary
Gain.4
Plaintiff seeks to exclude testimony, evidence, or argument regarding her motivation
for asserting her claims against Defendant, such as her seeking a windfall or secondary gain,
or having a lottery mentality. Defendant does not object to her request. Accordingly,
Plaintiff’s Motion on this point is GRANTED.
Defendant’s Motion in Limine
I. 	Evidence of Other Lawsuits and Claims against Defendant.
Defendant objects to Plaintiff offering evidence pertaining to other lawsuits or claims
against it because they are irrelevant, unfairly prejudicial and unduly confusing to the jury,
inadmissible as evidence or unrelated conduct, and constitute inadmissible hearsay. Plaintiff
argues that Defendant’s request is too vague, as it has not identified any specific evidence
that it wishes to keep out. Regardless, she concedes that unless Defendant opens the door to
such evidence, she has not identified any “other claims” evidence in the Pretrial Report.
Accordingly, the Court RESERVES ruling on this issue, opting instead to consider
it in context if the issue is raised during trial.
3 To the extent a party believes a limiting instruction is warranted as the evidence unfolds
at trial, they are free to request an instruction regarding the scope of evidence the jury may
consider when determining whether Defendant had a reasonable basis for denying
Plaintiff’s claim.
4 The Court notes that Plaintiff lists this Motion as “III”. However, because she does not
identify a motion as II, the Court construes and identifies this Motion as “II” throughout
this Order to maintain numerical consistency.
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 9 of 14

10
II. 	Lay Witness Testimony and Arguments regarding “Fair” and “Reasonable.”
Defendant seeks to preclude testimony and arguments by counsel as to what is “fair”
or “reasonable.” It argues that such should be prohibited because it is the Court’s duty to
instruct the jury on the law and because such testimony and arguments are inadmissible. It
further asserts that allowing testimony and arguments as to what is fair and reasonable would
be tantamount to allowing a lay witness to instruct the jury on Oklahoma’s bad-faith law.
Plaintiff objects to the request on the grounds that it is too general and runs contrary to the
issues in the case.
Under Fed. R. Evid. 403, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by . . . unfair prejudice.” Rule 403 favors admissibility,
and the Court should “give the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Deters, 202 F.3d at 1274.
“An opinion is not objectionable just because it embraces an ultimate issue.” Fed. R.
Evid. 704. However, “opinions that merely tell the trier of fact what result to reach or state a
legal conclusion in a way that says nothing about the facts still are objectionable.” 29 Charles
Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Evid. § 6284 (2d ed.); see also United
States v. Richter, 796 F.3d 1173, 1195 (10th Cir. 2015) (Rule 704 testimony must still “be
helpful to the trier of fact.”). This is because “such opinions are not ‘helpful’ as required by
Rule 701 and do not ‘help’ as required by Rule 702.” 29 Charles Alan Wright & Arthur R.
Miller, Fed. Prac. & Proc. Evid. § 6284 (2d ed.).
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 10 of 14

11
Plaintiff makes a plausible argument that the questions to witnesses concerning
fairness and reasonableness will help the jury in this case, will be based on a witness’ factual
perception, and will avoid telling the jury how to rule. Plaintiff seeks to question the adjuster
who handled her claim about the adjuster’s understanding of his duties. Moreover, Defendant
fails to identify any particular witness that it seeks to bar from testifying abouts such topics.
However, the Court cautions counsel for both parties “that questions or comments by
a witness or counsel that misstate Oklahoma law will encroach on the Court’s role in
instructing the jury on the applicable law.” Godfrey v. CSAA Fire & Cas. Ins. Co., No. CIV-
19-329-JD, 2020 WL 1056306, at *6 (W.D. Okla. Mar. 4, 2020) (citing Specht v. Jensen,
853 F.2d 805, 810 (10th Cir. 1988) (“In no instance can a witness be permitted to define the
law of the case.”)). The jury will be equipped to form its own conclusions on whether the
insurance policy was breached and whether Defendant had a reasonable, good-faith belief in
denying the claim.
Accordingly, Defendant’s Motion on this point is DENIED.
III. 	Suggestion or Argument that Defendant Should or Must Look for Reasons to
Pay a Claim or Pay More on a Claim.
Defendant argues that the Court should disallow Plaintiff’s insinuations that it had an
obligation to look for reasons to pay a claim or to pay more on a valid claim, and that it must
devote more time and attention to finding a reason to pay a claim than to deny a claim.
Plaintiff concedes that her counsel does not anticipate asking questions about whether
Oklahoma law requires adjuster to “look harder” to pay more on claims. However, Plaintiff’s
counsel anticipates asking Defendant’s adjusters about their training and understanding
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 11 of 14

12
regarding their duty of good faith and fair dealing. Thus, she asks the Court reserve its ruling
on Defendant’s request until trial, because the Court will have more context and can make a
more informed decision.
Accordingly, the Court RESERVES ruling on this issue, opting instead to consider
it in context if the issue is raised during trial.
IV. 	Suggestion or Argument that Defendant Owes the “Benefit of the Doubt” to its
Insured.
Defendant requests that Plaintiff be prohibited from suggesting to the jury that it owes
the “benefit of the doubt” to its insured. In response, Plaintiff asserts that she “does not intend
to ask Defendant’s witnesses whether they have a duty to give their insured the ‘benefit of
the doubt.’”
Accordingly, Defendant’s Motion on this point is GRANTED.
V. 	Evidence and Testimony Regarding Oklahoma’s Unfair Claims Settlement
Practices Act.
Defendant seeks to preclude Plaintiff, her counsel, and witnesses from addressing the
Oklahoma Unfair Claims Settlement Practices Act (“OUCSPA”). Defendant asserts that any
reference to the OUCSPA is irrelevant and prejudicial, as “Oklahoma does not recognize a
private right of action for violation of the act.” Plaintiff does not object to Defendant’s
request, to the extent its witnesses do not provide testimony regarding the OUCSPA.
Accordingly, to the extent Plaintiff concedes Defendant’s request on the OUCSPA,
Defendant’s Motion on this point is GRANTED.
VI. 	Golden Rule Arguments
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 12 of 14

13
Defendant requests that Plaintiff be barred at trial from making any “Golden Rule”
arguments, because such arguments would be unfairly prejudicial. Although Plaintiff
concedes that “Golden Rule” arguments are improper in her plea for damages, she objects to
Defendant’s request and argues that “Golden Rule” arguments are proper for issues
pertaining to its liability.
The Tenth Circuit has recognized that the “golden rule” argument may not be proper
in certain instances, see Blevins v. Cessna Aircraft Co., 728 F.2d 1576, 1581 (10th Cir. 1984),
but the Circuit has also carved out a narrow exception in cases where the reasonableness of
conduct, in light of information known at the time, is at issue. See, e.g., Schultz v. Rice, 809
F.2d 643, 652 (10th Cir. 1986) (quoting Stokes v. Delcambre, 710 F.2d 1120, 1128 (5th Cir.
1983)). Use of the so-called “golden rule” argument, when its aim is to elicit an emotional
response by jurors, is improper.
Accordingly, the Court RESERVES ruling on this issue in advance of trial, opting
instead to consider it in context if the issue is raised during trial.
VII. 	Evidence Regarding Defendant’s Advertising
Defendant requests that Plaintiff, her counsel, and witnesses be barred at trial from
“mentioning, referring to, or conveying to the jury, in any manner, the reasons why
Progressive advertises, the various mediums in which Progressive advertises, or the amount
of money Progressive spends on advertising.” Plaintiff does not object to its request.
Accordingly, Defendant’s Motion on this point is GRANTED.
CONCLUSION
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 13 of 14

14
For the reasons outlined above, Plaintiff’s Motion in Limine [Doc. No. 61] is
GRANTED in part, RESERVED in part, and DENIED in part, and Defendant’s Motion
in Limine [Doc. No. 62] is GRANTED in part, RESERVED in part, and DENIED in
part. In summary, the Court ORDERS:
1. 	Plaintiff’s Motion in Limine No. I(A) [Doc. No. 61] is RESERVED in part
and GRANTED in part.
2. 	Plaintiff’s Motion in Limine No. I(B) [Doc. No. 61] is RESERVED in part
and GRANTED in part.
3. 	Plaintiff’s Motion in Limine No. I(C) [Doc. No. 61] is DENIED.
4. 	Plaintiff’s Motion in Limine No. II [Doc. No. 61] is GRANTED.
1. 	Defendant’s Motion in Limine No. I [Doc. No. 62] is RESERVED.
2. 	Defendant’s Motion in Limine No. II [Doc. No. 62] is DENIED.
3. 	Defendant’s Motion in Limine No. III [Doc. No. 62] is RESERVED.
4. 	Defendant’s Motion in Limine No. IV [Doc. No. 62] is GRANTED.
5. 	Defendant’s Motion in Limine No. V [Doc. No. 62] is GRANTED.
6. 	Defendant’s Motion in Limine No. VI [Doc. No. 62] is RESERVED.
7. 	Defendant’s Motion in Limine No. VII [Doc. No. 62] is GRANTED.
IT IS SO ORDERED this 20 th day of January, 2026.
. DeGIUSTI
Chief United States District Judge
Case 5:23-cv-01000-D Document 72 Filed 01/20/26 Page 14 of 14