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Dabbs v. Shelter Mutual Insurance Co.

United States District Court, W.D. Oklahoma

September 27, 2019




         Before the Court is the Motion for Summary Judgment [Doc. No. 92] filed by Shelter Mutual Insurance Company. Johanna Dabbs has filed a Response [Doc. No. 99] to which Defendant has replied [Doc. No. 102]. The matter is fully briefed and at issue. Pursuant to Rule 56 and this Court’s Order [Doc. No. __], Defendant’s Motion to Strike Affidavit of Joseph Gourrier, along with all accompanying briefs, will be considered as an objection to Exhibit 1 in Plaintiff’s Response [Doc. No. 99], and addressed as part of the Court’s ruling on summary judgment.


         The following facts are undisputed unless otherwise noted. Plaintiff was insured under an automobile insurance policy (“Policy”) issued by Defendant. Motion at 5. After purchasing the Policy, Plaintiff was involved in an automobile accident in Harris County, Texas. Id. The accident happened because Plaintiff ran a red light. Id. Plaintiff’s car then clipped a vehicle driven by April Andrade (“Andrade”) and struck another vehicle, which Mayra Sierra (“Sierra”) was driving and in which Vincent Calderon (“Calderon”) was a passenger. Id. at 5–6. Andrade, Sierra, and Calderon were all injured in the accident. Id. at 13.

         The accident took place on Saturday, August 13, 2011. Id. On Monday, August 15, 2011, Sheri Edwards, the adjuster for the injury claims (“Claims Adjuster”), contacted Plaintiff, Andrade, and Sierra, and attempted to contact Calderon. Id. During that initial contact, Andrade and Sierra stated they had been injured and informed Defendant that Calderon was injured as well. Id. On August 17, Defendant learned that the same attorney, Joseph Gourrier (“Gourrier”), would represent Calderon and Sierra. Id. at 3. Gourrier informed Defendant that Calderon had a broken leg and Sierra had both neck and arm injuries. Id.

         On September 15, Gourrier made a policy limits demand for Calderon’s claim, offering to settle for $30, 000. Id. Gourrier gave Defendant five days to respond to the request. Id. at 11. Defendant, at this time, still did not have Andrade’s medical authorization, Sierra’s medical bills or records, and had incomplete records for Calderon. Id. at 10–11. Concerned that she did not have sufficient information about all injuries and a policy limit that could subject the insured to excess liability, the Claims Adjuster discussed her concerns with her supervisor, requested more information from Gourrier, and attempted to recontact Andrade. Id. at 11. Defendant retained counsel to assist with handling the insurance claims. Id. at 12. Counsel advised that-under Texas law-Defendant had no obligation to consider competing claims and recommended Defendant accept Gourrier’s settlement offer. Id. at 12. Three days after the expiration of Gourrier’s deadline, Defendant offered $30, 000 for Calderon’s claim. Id. at 13. Gourrier refused to accept the policy limit tender. Id. Calderon sued Plaintiff. Id. Defendant retained counsel for Plaintiff in the litigation. Id. Plaintiff was found legally liable for an amount exceeding $700, 000.


         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). “An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and “[a]n issue of fact is ‘material’ if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         The Court’s inquiry must be whether the evidence, when viewed “through the prism of the substantive evidentiary burden, ” Anderson, 477 U.S. at 254, “presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52. Although the Court views all facts in the light most favorable to the nonmoving party at the summary judgment stage, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249.

         This Court, through a choice of law analysis, has previously ruled that Oklahoma law governs the resolution of this diversity action. See Order, Doc. No. 64.


         The Court will first address Defendant’s objection to Exhibit 1 in Plaintiff’s Response. Next the Court will turn to Defendant’s Motion for Summary Judgment.

         I. The Court will only consider Plaintiff’s Exhibit 1 to the extent that it contains statements that could be reduced to admissible evidence at trial.

         Defendant has objected to the Court relying on Exhibit 1, Gourrier’s affidavit, attached to Plaintiff’s Response [Doc. No. 99]. Defendant asserts that Gourrier’s affidavit includes inadmissible statements. Doc. No. 101 at 1–2. Specifically, Defendant argues Gourrier should not be able to provide testimony about[1]: (1) the applicable law; (2) the meaning of Plaintiff’s insurance policy; (3) other person’s thoughts or motives; (4) his opinion as to whether Defendant acted in bad faith; (5) medical opinions; and, (6) statements qualifying as hearsay. See Id . at 7–15.

         Although Rule 56 allows the use of materials that are not usually admitted at trial, such as affidavits, “[a] party may object that the material cited . . . cannot be presented in a form that would be admissible in evidence.” See Fed. R. Civ. P. 56(c)(2). Under this rule, “the form of evidence produced . . . at summary judgment may not need to be admissible at trial, [but] ‘the content or substance of the evidence must be admissible.’” Johnson v. Weld Cty., 594 F.3d 1202, 1210 (10th Cir. 2010) (quoting Thomas v. Int’l Bus. Mach., 48 F.3d 478, 485 (10th Cir. 1995)). Thus, in ruling on summary judgment, courts must disregard evidence if there is a proper objection to its use and its proponent cannot show that the evidence in question could eventually be admissible at trial. See Montes v. Vail Clinic, 497 F.3d 1160, 1176 (10th Cir. 2007); Johnson, 594 F.3d at 1209.

         A. The Court will not consider any of Gourrier’s statements concerning applicable law.

         Defendant points out that Gourrier’s affidavit includes several legal conclusions. Motion to Strike at 7.

         Not all testimony regarding legal issues is excluded. A legal expert’s testimony is proper under Rule 702 “if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function.” Specht v. Jensen, 853 F.2d 805, 809–10 (10th Cir. 1988); see also United States v. Kingston, 971 F.2d 481, 486 (10th Cir. 1992). “In no instance can a witness be permitted to define the law of the case.” Specht, 853 F.2d at 809. Allowing a legal expert to testify in this fashion is reversible error. Id.

         Gourrier has not been listed as an expert witness, and Defendant has not been provided with a Rule 26 report. See Plaintiff’s Expert Witness List, Doc. No. 98. The deadline to do so has expired. See Order, Doc No. 94. To the extent Gourrier’s testimony amounts to expert witness testimony on legal issues, the Court will disregard the same. Further, Defendant is correct to point out that Gourrier, in his affidavit, improperly attempts to “direct the jury’s understanding of the legal standards upon which their verdict must be based.” Specht, 853 F.2d at 809. For example, Gourrier states[2]:

Between the information provided in Calderon’s emergency room records and Dr. Rodriguez’s estimate, it should have been clear to an ordinarily prudent insurer than an excess judgment would ...

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