Avery et al v. Lahr Agency, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Kevin A. Avery and Denise M. Avery, 	)
a/k/a Denise W. Murdock, as 	)
assignees of the Estate of Andrzej 	)
Furmanski, Deceased, 	) 	ORDER RE DEFENDANT’S
) 	MOTIONS IN LIMINE
Plaintiffs, 	)
)
vs. 	)
)
Lahr Agency, LLC, n/k/a REL 	) 	Case No. 1:17-cv-265
Agency, LLC, 	)
)
Defendant. 	)
The following are the court’s rulings on defendant’s motions in limine 1–4:
1. 	Motion to exclude expert Clinton Miller’s opinion that Rich Lahr had a duty to
procure a $5 million excess or umbrella policy for the airplane
Defendant seeks to exclude testimony on the part of plaintiffs’ expert Clinton Miller that
defendant should have procured an excess policy in the amount of $5 million dollars. Defendant’s
objections are several. The first is that Miller did not set forth an opinion regarding the amount of
insurance that Lahr should have procured. While somewhat oblique and sparse on detail, Miller’s
report does appear to offer an opinion that defendant should have procured a policy that would have
provided $5 million in coverage effective for the circumstances of this case. Further, defendant did
depose Miller where he offered the same opinion and specifically referred to the possibility of an
excess policy. 1 For these reasons and the fact defendant has retained its own expert on these matters,
defendant has not been unfairly prejudiced.
1 Miller also referenced the possibility of a “medical pay” provision in any policy that would have been
procured but defense counsel did not follow up on this reference. At this point, the court does not know whether this
has any relevance to this case.
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Defendant’s second objection is that Miller lacks the necessary qualifications to express an
opinion. The court disagrees. Miller has substantial background and experience in the insurance
industry. 	The deficiencies claimed by defendant go to the weight of his testimony and not its
admissibility.
The third objection is that Miller’s testimony that $5 million in coverage should have been
procured is not sufficiently grounded and lacks foundation. 	The court will defer ruling on the
ultimate admissibility of Miller’s testimony with respect to this point until it hears all of the
evidence, but the court does have concerns. Kevin Avery acknowledges he did not request any
specific policy limits in his conversations with Richard Lahr and left it up to his professional
judgment to decide what would be appropriate. While Miller says $5 million in coverage would
have been an appropriate amount, the only thing he offers to support this opinion is that this is the
amount that would be appropriate for a high net worth individual as well as a business the size of
Avery Enterprises and vague reference to coverage in this amount being available in the market.2
Maybe this enough, but far more probative (at least in this court’s view) are (1) the limits of liability
coverage for small aircraft (both the primary policy and any applicable excess polices) that Lahr
2 Defendant points to findings that the undersigned made in the Avery-Furmanski action with respect to Kevin
Avery’s net income prior to the accident and contends it demonstrates Avery was not a “high net worth” individual.
Putting aside defendant’s argument that nothing in that proceeding is binding now, the amounts Avery took in income
may not necessarily reflect the value of the business. That is, he may have been building equity in the business by taking
less income. On the other hand, he may have draining the business of needed working capital. In terms of the business,
Miller had before him some information with respect to its size in expressing an opinion that $5 million would have been
an appropriate amount. 	Further, at one point Avery had a yearly income in excess of $400,000 and there potentially
could be hopes for the future and not wanting the business saddled with a large liability judgment. On the other hand,
if Avery Enterprises did not have excess policy limits of five million dollars for other coverages at the time of the
accident, contending that Avery Enterprises could reasonably have expected (and been willing to pay for) a higher limit
of liability coverage for the aircraft will be a difficult sell.
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obtained for himself, defendant,3 and 	his other customers, and (2) the excess policy limits that
Avery Enterprises was apparently satisfied with for other liability coverages.
Court ruling: Motion is DENIED.
2. 	Motion to exclude evidence of Richard Lahr’s offer to Kevin Avery to pay
$30,000
Defendant seeks to exclude from evidence an offer made by Richard Lahr while he was in
the hospital to pay $30,000. The court agrees there existed at the time the offer was made a dispute
as to whether Lahr should have procured insurance on the aircraft in that this was the subject of an
earlier phone call. As a consequence, the offer falls within the scope of Fed. R. Evid. 408. See, e.g.,
Weems v. Tyson Foods, Inc., 665 F.3d 958 (8th Cir. 2011) (a dispute need not crystallize to the
point of threatened litigation for the Rule 408 exclusion to apply); Savy Surfers, Inc. v. Wings of
Minot ND LLC, No. 1:17-v-164, 2019 WL 377652, at **2–3 (D.N.D. Jan. 30, 2019) (same).
Plaintiffs may not use the offer to prove liability.
Court ruling: Motion is GRANTED IN PART. Plaintiffs may not use the offer to prove
liability. The court makes no ruling with respect to whether the evidence may be offered for some
other purpose, however. Plaintiffs, plaintiffs’ counsel, and plaintiffs’ experts may not mention or
otherwise refer to the $30,0000 offer in the presence of the jury without first seeking permission
from the court.
3. 	Motion to exclude evidence of other lawsuits and claims
Plaintiffs seek to offer evidence that defendant and/or Richard Lahr had been the subject of
one or more prior claims and that, at least in one case, a substantial settlement was made. If offered
3 Lahr himself was a pilot, and it appears defendant at various times owned aircraft that Lahr flew for business
purposes including carrying passengers.
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to show that Richard Lahr was not a careful or diligent agent and/or to support the claim that Lahr
failed to procure requested insurance because he had allegedly done so in the past, the evidence is
subject to exclusion under Fed. R. Evid. 404. See, e.g., State Farm Mut. Auto Ins. Co. v. Accident
Victims Home Health Care Serv. Inc., 467 F. App'x 368, 371-74 (6th Cir. 2012) (district court erred
in admitting evidence that a party had engaged in prior acts of fraud and misrepresentation when the
only apparent purpose was show propensity for the same type of conduct); American Airlines, Inc.
v. United States, 418 F.2d 180, 197 (5th Cir.1969) (“evidence of a similar act of negligence is not
admissible to prove negligence in performing the same act later”). However, there are exceptions
that may be applicable.
The court agrees that the prior act evidence that has been referenced in the deposition
testimony the court has reviewed so far appears to be dissimilar enough that several of the
exceptions under Rule 404(b)(2) are likely not applicable. Cf. First Sec. Bank v. Union Pacific R.R.
Co., 152 F.3d 877, 879-80 (8th Cir. 1998); Shelley v. White, No. 1:09-cv-00662, 2010 WL 1904963,
at **2– 4 (M.D. Ala. May 12, 2010). However, the court is not prepared to conclude now that none
of the exceptions apply. Also, there is the possibility defendant may “open the door” to some of the
evidence.
Court ruling: 	Motion is GRANTED IN PART. 	Plaintiffs, plaintiffs’ counsel, and
plaintiffs’ experts may not mention or otherwise refer to other lawsuits and claims in the presence
of the jury without first seeking permission from the court.
4. 	Motion to exclude duplicative expert testimony
Defendant in this motion seeks to preclude plaintiffs from presenting testimony from more
than one expert with respect to the same subject matter. In response, plaintiffs agree this would be
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inappropriate and will endeavor not to do so.
Court ruling: Motion is GRANTED to the extent that plaintiffs have agreed not to present
testimony about the same subject matter from more than one expert.
IT IS SO ORDERED.
Dated this 26th day of August, 2019.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
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