United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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)).
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
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.
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.
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.
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) 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 .
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.
The Court will not consider any of Gourrier’s
statements concerning applicable law.
points out that Gourrier’s affidavit includes several
legal conclusions. Motion to Strike at 7.
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.
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
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 ...