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An insurance expert may not testify about law or causation



For more than a decade, I have testified as an expert on insurance claims. However, I have never even considered testifying about the cause of a loss or engineering I know nothing about. Erie Insurance Property and Casualty Company, d / b / a Erie Insurance Group & # 39; s ("Erie"), was brought before an insurance expert who proposed to testify about the case law and the cause of a loss, and went to the limit to exclude the plaintiff expert Vince King from giving testimony about the cause of the plaintiff's alleged damages and from giving opinion testimony about the law in the case. I Richard Ferguson v. Erie Insurance Property And Casualty Company, d / b / a Erie Insurance Group Civil Action No. 3: 19-0810, United States District Court, S.D. West Virginia, Huntington Division (November 8, 2021) USDC found it necessary to limit the testimony of an insurance expert.

BACKGROUND

This case involves a dispute over insurance coverage for property damage in plaintiff Richard Ferguson's home in Putnam County, West Virginia. The plaintiff claimed that his home sustained damage to the foundation walls by blasting Bizzack Construction, LLC during its 2017-2018 road construction activities. The plaintiff claimed that the foundations of his home received fifteen vertical cracks during these blasting operations.

At the time of the damage, the plaintiff's home was covered by an insurance policy issued by Erie. The plaintiff made a claim to Erie. Erie hired a civil engineer, Tammy St. Clair, P.E., to investigate the plaintiff's damages and assess the cause of the loss. St. Clair issued a report to Erie and found that the cause of the damage to the plaintiff's home was due to the shrinkage of the grout-filled CMU cells. Because of this report, Erie informed the plaintiff that there was no coverage. The plaintiff sued Erie, claiming that Erie wrongly denied coverage for his property insurance claim, which was the result of the explosion.

Throughout the trial, the plaintiff identified Vince King as an insurance expert. The plaintiff stated that "Mr. King is expected to testify to standard practices and protocols in the insurance industry." Pending the litigation, Mr. King a report in which he offered three categories of opinions: (1) that Erie engaged in insurance on claim; (2) that Erie violated the insurance contract by violating the implied covenant of good faith and fair settlement; and (3) that Erie could be the subject of non-contractual claims.

The insurer intervened to prevent Mr King from giving opinions on the cause of any of the alleged damages or questioning the methods and grounds for the defendant's expert reaching her. . The defendant also tries to stop Mr. King from commenting on the law or instructing the court on applicable law in the case.

LEGAL STANDARD AND DISCUSSION

The admissibility of expert opinions in court proceedings is governed by Rule 702 of the Federal Rules of Evidence and is relevant if: "(a) there is any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is relevant to the determination of the document. " reports before and after blasting to rule out blasting as the cause of loss.The defendant argued that Mr. King is not qualified, with his own consent, to voluntarily provide views on grout shrinkage.

It is undisputed that Vince King is not a qualified engineer and can not, as he did in his deposits, provide voluntary opinions on grouting, shrinkage or causation, nor is he a qualifier able to give opinions on what investigation was needed for a civil engineer to be able to determine whether the grouting had shrunk, as he has no expertise in this area. Consequently, the court concluded that Mr. King can not testify to causation or criticize the scientific basis on which St. Clairs reports, and therefore the motion was granted in part .

Expert Testimony on Insurance

Erie claims that Mr. King's testimony about insurance coverage or how Erie determined coverage is irrelevant. Given that the scope of the question before the jury involves issues of insurance coverage that go beyond causation, Mr. King may assist a jury in the typical protocols and analyzes that an insurer uses when deciding to cover damages. This can help a jury determine whether the cause of the damage which the defendant claims constitutes a "collection guarantee". Consequently, Mr. King testified as an insurance expert on matters of insurance procedures and practices regarding coverage.

Whether the jury finds this evidence convincing or not is a matter for them. For these reasons, Mr. King is allowed to testify about the analysis that an insurance company should follow when determining coverage. This may imply St. Clair's conclusions, but about Mr. King tries to testify about causation or her scientific findings, this court may rule on objections during the trial regarding specific issues that may be inappropriate.

Expert testimony on applicable law

Defendant asks the court to prevent Mr. King from testifying about his views on applicable law. In general, an expert is not allowed to comment on the law in the case or to instruct the court on the applicable law in the case. An expert "may not testify on such legal issues as interpretation of a constitution. or case law … or the meaning of terms in a charter … or the legality of the conduct. [ Jackson v. State Farm Mut. Car. Ins. Co ., 600 S.E.2d 346, 255 (W.Va. 2004).]

In his deposit, Mr. King detailed on applicable law. In the same way, he explains in his report which law is applicable to support some of his claims. These statements are not permitted.

CONCLUSION

Mr. King may testify to applicable insurance practices and standards. However, he may not testify about the cause of the damage or the scientific basis for St. Clairs report. In the same way, he is not allowed to comment on the law on which the case is based. Within the limits of these limitations, however, Mr King may testify.

The orders given by the USDC appear to be correct in limiting the expert's testimony to insurance matters. However, he claims that he can testify to "post loss underwriting", which system was created to deal with a presumed overuse of the insurance companies' fair remedies for cancellation. Because Erie just denied the claim, did not invalidate the insurance, and only denied the claim because the cause of the loss was not due to a listed hazard that was not excluded. Underwriting – whether original or after a loss – is irrelevant to the questions and he should be excluded from testifying to a concept that is not relevant.


© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his internship to a position as an insurance consultant specializing in insurance coverage, insurance claims handling, bad faith and insurance fraud almost equally for insurers and policyholders.

He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry.

Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

He is available at http://www.zalma.com and zalma@zalma.com. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award. For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claims staff to become professionals in insurance claims.

Go to the training available at https://claimschool.com; articles at https://zalma.substack.com, the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr Zalma on Twitter at https://twitter.com/bzalma ; Go to Barry Zalma videos at https://www.rumble.com/zalma; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ T the last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud- letter -2 / podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4


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