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,,, It is the difference between an Admissible Conclusion of Fact and an Inadmissible Legal Conclusion, in Download Kearney v. Auto-Owners Insurance Co. (M.D. Fla. Opinion Filed November 5, 2009), also published as Kearney v. Auto-Owners Insurance Co., 2009 WL 3712343 (M.D. Fla. November 5, 2009)(Westlaw subscription required to access Westlaw).
You and I will recall this as the case with 14 total motions in limine, 7 from the Policyholder-Plaintiff and 7 from the UM Excess Carrier-Defendant. This was a First-Party Statutory Bad Faith Case under Florida Law. The Court allowed Opinions which were not legal conclusions, but conclusions of Fact, from the Expert Witnesses in this case. For example, one of the Defendant's Expert Witnesses intended "to testify," as the Court put it, that the Defendant "paid the limits of the umbrella policy when, under all the circumstances, it could and should have done so." Holding that this proffered Expert Opinion was not an inadmissible legal conclusion, the Court wrote that this Opinion was instead "a factual conclusion -- ... not a legal conclusion." Kearney v. Auto-Owners Insurance Co., 2009 WL 3712343 *6 (M.D. Fla. November 5, 2009).
On the other hand, the Expert had other Opinions to proffer, one of which was that the Defendant did not violate a Florida Statute, § 624.155, "in the handling of [its Policyholder's] claim." The Court expressly agreed with the Policyholder that this was an inadmissible legal conclusion, not if you will, an admissible non-legal conclusion. The many motions in limine filed in this case were thus granted "to the extent that the Court finds that [the Expert] cannot testify as to this conclusion." Kearney v. Auto-Owners Insurance Co., 2009 WL 3712343 *6 (M.D. Fla. November 5, 2009).
Again, when Expert Opinion Testimony is offered to prove or disprove the Insurance Company's compliance with an objective standard of behavior by its provable conduct, then in such cases the Expert Opinion Testimony has ordinarily been held admissible by the Federal Courts -- and by the State Courts too. However, when Expert Opinion Testimony is offered to prove or disprove an ultimate fact in the Bad Faith Case, such as the Defendant's violation or not of Florida's Bad Faith Statute, then such Opinions are ordinarily excluded on many grounds, the most common of which is that such Opinions are inadmissible legal conclusions. The cases are examined in Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" §§ 8:17 and 11:18 (Second Edition Shepard's/McGraw-Hill, 2009 Supplement West Publishing Company).
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