Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Scottsdale Insurance Co. v. City of Waukegan

February 9, 2010

SCOTTSDALE INSURANCE COMPANY & AMERICAN SAFETY CASUALTY INSURANCE COMPANY, PLAINTIFFS,
v.
CITY OF WAUKEGAN, DEFENDANT.
CITY OF WAUKEGAN, COUNTER-PLAINTIFF,
v.
SCOTTSDALE INSURANCE COMPANY, AMERICAN SAFETY CASUALTY INSURANCE COMPANY, INTERSTATE INDEMNITY COMPANY, CERTAIN UNDERWRITERS AT LLOYDS OF LONDON, NORTHFIELD INSURANCE COMPANIES, WESTPORT INSURANCE CORPORATION, EVANSTON INSURANCE COMPANY, S. ALEJANDRO DOMINGUEZ, AND PAUL HENDLEY, COUNTER-DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiffs Scottsdale Insurance Company ("Scottsdale") and American Safety Casualty Insurance Company ("American Safety") filed separate Complaints for Declaratory Judgment against the City of Waukegan ("Waukegan") on January 8, 2007 and April 11, 2007 respectively, seeking declarations that they do not owe coverage to Waukegan for its obligations in the lawsuit S. Alejandro Dominguez v. Paul Hendley et. al., No. 04 C 2907 (the "Domiguez case"). The Court consolidated these two cases on January 3, 2008. On March 20, 2008, Waukegan filed a First Amended Counterclaim against Counter-Defendants Scottsdale, American Safety, Interstate Indemnity Company ("Interstate"), Certain Underwriters at Lloyds of London ("Certain Underwriters"), Northfield Insurance Companies ("Northfield"), Westport Insurance Corporation ("Westport") (formerly Coregis Insurance Organizations), Evanston Insurance Company ("Evanston"), S. Alejandro Domiguez ("Dominguez"), and Paul Hendley ("Hendley"). American Safety, Northfield, Certain Underwriters, Westport, and Interstate (collectively "Objecting Counter-Defendants"), have filed four separate Motions to Strike the Report and Bar the Testimony of Waukegan's Expert, Donald J. Brayer ("Brayer"). For the reasons stated below, the Court grants in part and denies in part these four motions, striking the portions of Brayer's report that contain improper legal conclusions and barring his testimony as to those conclusions at trial.

BACKGROUND

Domiguez filed suit against Waukegan and several of its police officers in the Northern District of Illinois, alleging claims of false arrest, malicious prosecution, and deprivation of constitutional rights under 42 U.S.C. § 1983, as well as respondeat superior and indemnification claims against Waukegan. Amend. Ctrclm. ¶¶ 34, 36. On October 17, 2006, the jury found in favor of Domiguez and against Paul Hendley, a Waukegan police officer, and awarded Domiguez $9,063,000.00. Id. ¶ 15. The Court held Waukegan liable as indemnitor for all sums Hendley was required to pay. Id.

Northfield and Certain Underwriters issued Law Enforcement Liability insurance policies to Waukegan that were in effect between November 1, 1991 and November 1, 1995. Id. ¶¶ 147, 191. Westport also issued primary and umbrella policies to Waukegan effective between November 1, 1997 and November 1, 2000. Id. ¶ 221. American Safety issued two policies to Waukegan, effective November 1, 2000 through November 1, 2001 and November 1, 2001 through November 1, 2002. Id. ¶ 37. Finally, Interstate issued a Commercial Umbrella Policy to Waukegan covering excess over American Safety's November 1, 2001 through November 1, 2002 insurance policy. Id. ¶ 118. In its First Amended Counterclaim, Waukegan seeks a declaratory judgment that each of these policies should have covered the underlying judgment in the Dominguez case. Id. ¶ 16. On December 23, 2009, Waukegan served its Supplemental Rule 26(a)(2)(A) disclosures and attached Brayer's Expert Report and Opinions. (See R. 383-1.)

STANDARD

The admissibility of scientific expert testimony is governed by Federal Rule of Evidence 702 ("Rule 702") and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Rule 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed.R.Evid. 702. Courts apply a three-step admissibility analysis for expert testimony under Rule 702 and Daubert. See Ervin, 492 F.3d at 904. First, "the witness must be qualified 'as an expert by knowledge, skill, experience, training, or education.'" Id. (quoting Fed.R.Evid. 702). Second, "the expert's reasoning or methodology underlying the testimony must be scientifically reliable." Id. (citing Daubert, 509 U.S. at 592-93). Courts are, however, granted "broad latitude when [they] decide[] how to determine reliability." Kumho Tire Co. v. Carmichael, 526 U.S 137, 142 (1999). Finally, the expert's testimony must be relevant, or "assist the trier of fact to understand the evidence or to determine a fact in issue." See Ervin, 492 F.3d at 904.*fn1

DISCUSSION

I. Qualifications and Methodology

As an initial matter, none of the Objecting Counter-Defendants challenges Brayer's expert qualifications, and this Court finds that a Chartered Property Casualty Underwriter, Registered Professional Liability Underwriter, Associate in Claims, Associate in Reinsurance, and Construction Risk Insurance Specialist with an MBA in management and finance is qualified by knowledge, skill, experience, training, and education. (See R. 383-1, p. 5.) Additionally, none of the Objecting Counter-Defendants disputes the methodology used in Brayer's report. See United States v. Moore, 521 F.3d 681, 685 (7th Cir. 2008) ("A judge is not obliged to look into the questions posed by Rule 702 when neither side either requests or assists.").

II. Relevance

Objecting Counter-Defendants instead challenge the relevance of Brayer's report, claiming that the report consists primarily of legal opinions. Brayer's report is divided into eleven bolded and numbered headings, with "policy analysis" and "comments" below. Each Objecting Counter-Defendant moves to strike Brayer's opinions about whether there is coverage under its policy or whether it has certain duties under that policy. "Testimony is relevant if it helps the trier of fact in understanding the evidence or in determining a fact at issue." Masters v. Hesston Corp., 291 F.3d 985, 991 (7th Cir. 2002) (emphasis added). "Under Illinois law, the interpretation of an insurance policy is a question of law." BASF AG v. Great Am. Assurance Co., 522 F.3d 813, 818-19 (7th Cir. 2008). Although experts may provide opinions as to the ultimate factual issues in a case, U.S. v. Pansier, 576 F.3d 726, 738 (7th Cir. 2009), they may not testify "as to legal conclusions that will determine the outcome of the case" under Rule 702. Good Shepard Manor Found. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (excluding expert testimony that consisted of legal conclusions); see also, e.g., In re Ocean Bank, 481 F. Supp. 2d 892, 898 (N.D. Ill. 2007) ("Expert testimony as to legal conclusions that will determine the outcome of a case is inadmissible.").

In arguing that Brayer's report does not contain inadmissible legal opinions, Waukegan primarily relies on case-law allowing experts to testify upon ultimate issues of fact, without citing any case permitting an expert to opine as to what an insurance policy covers or an insurer's legal duties under that policy.*fn2 Because the Court finds that many of Brayer's statements are legal opinions that are not helpful to the trier of fact, it strikes those opinions from Waukegan's Rule 26(a)(2)(A) Disclosures and bars testimony ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.