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Life Plans, Inc. v. Security Life of Denver Insurance Co.

United States District Court, N.D. Illinois

January 11, 2017

Life Plans, Inc., Plaintiff,
Security Life of Denver Insurance Company and ING US, Inc., n/k/a Voya Financial, Inc., Defendants.


          Ronald A. Guzmàn United States District Judge.

         For the reasons stated below, the Court grants in part and denies in part certain of Defendants' motions in limine [164, 165, 166, 167, 168, 169] as detailed herein.


         The Court assumes background knowledge of the facts of the case and the pretrial conference proceedings. Life Plans, Inc. is referred to herein either as “Plaintiff” or “LPI.” Defendants are referred to either as “Defendants” or “SLD” for Security Life of Denver where appropriate.

         1. Defendants' Motion in Limine #1 (Bar Alleged Admissions of Liability by Craig Umphress, Scott Carney and Francis de Regnaucourt)

         The motion to bar the statements of Craig Umphress being offered by Plaintiff is denied. The statements come in as party admissions, which are an exception to the hearsay rule, regardless of whether in the form of opinions. This is the case even as to what might be considered mixed questions of fact and law that are relevant to the ultimate issue, such as the validity of Plaintiff's case against Defendants. See Fed. R. Evid. 801(d)(2).

         The motion to bar is denied as to Scott Carney's statement: “We are probably going to write a big fat check.” The Court has reconsidered its oral ruling granting the motion as to Carney's statement: “Send me a quick e-mail if you can, I guess they want to fight a lawsuit, probably will cost us more than any loss if we did it.” As indicated in open court, one issue is whether the statement can reasonably be interpreted to be a statement opining on the merits of refusing to go forward with the policy issuance. One reasonable inference is that Carney is opining that the policy is financially solid and that defending any lawsuit that will result is likely to be more expensive than any potential losses from issuing the policies. On the other hand, the statement implies an assessment that there likely will be a lawsuit, which could be costly. Such a conclusion would not be likely if Carney believed Defendants' rejection of the policies was well supported. When coupled with Carney's other statement about having to write a big fat check, the statement could reasonably be interpreted as an opinion that the rejection is unwarranted and is likely to cause a lawsuit that will cost defendants significant expense. The correct interpretation is a determination for the jury to make. The motion to bar this statement is therefore denied.

         The motion to bar admissions by deRegnaucourt is denied for similar reasons.

         2. Defendants' Motion in Limine #2 (Bar Questions and Answers Relating to Alleged “Illegal” and “Unlawful” Conduct)

         By this motion, Defendants seek an order barring Plaintiff from introducing at trial any purported evidence, testimony and/or argument constituting or relating to questions and any witness's response to Plaintiff's counsel's purportedly improper examinations. Specifically, Defendants' executives (Robert Leary, Rod Martin, Ewout Steenbergen, Alain Karaoglan, Patrick Flynn, Jan Hommen and Willem Nagel) were asked to state legal conclusions or provide other testimony about whether Butch Britton's (CEO of Insurance Solutions - Retail, Life and Employee Benefits for ING US) supposed threat to criticize Plaintiff to other insurance carriers was illegal or unlawful.

         In the deposition of Robert Leary (President of ING U.S. and a member of ING U.S.'s OCEO[1]), Plaintiff's counsel asked Mr. Leary at least four times whether Britton's threat to tell other insurance carriers about Plaintiff's conduct and urge them not to do business with it, constituted “unlawful” or “illegal” activity by Britton. Plaintiff's premise is that Britton's willingness to discredit Plaintiff shows a general lack of honesty and fair dealing or good faith, and that Leary's failure to take disciplinary action would likewise reflect on his general lack of honesty, which would in turn be circumstantial evidence that he also acted in bad faith in rejecting the PEAK policy proposal.

         There are several problems with this line of questioning. First, whether Britton or Leary would contemplate “wrongfully” discrediting a company in general is not directly relevant to the issue before the jury - whether they acted in bad faith in rejecting the PEAK proposal. To put it another way, it is only tangentially relevant and therefore lacks significant probative value. Second, Leary's answers clearly indicate that he would need more information about the circumstances of the particular transaction involved to make a determination one way or the other about his approval of such a tactic. Third, depending on the circumstances, informing other carriers about Plaintiff's behavior may not be improper at all and allowing a series of questions which clearly imply that it is would be misleading and confusing to the jury. Fourth, such questions open the door for Defendants to rebut the implication with evidence of their own as to whether such conduct is unlawful or illegal and therefore commence a trial within a trial about a hypothetical collateral issue. Fifth, the relevance of Leary's noncommittal responses to these questions is further limited by the timing of the questions. Leary's belief at the time of the deposition is not directly relevant unless it is shown he was aware of Britton's comments at the time the decision to decline the PEAK program was made. The contrary appears to be the case. Whatever the small probative value these questions carry, it is substantially outweighed by the danger of prejudice, confusion and unnecessary delay. The motion to bar this series of questions as to Leary is granted.

         Similar questions were asked in the deposition of Ewout Steenbergen (a member of ING U.S.'s OCEO), Alain Karaoglan (a member of ING U.S.'s OCEO who was deposed and asked: “Do you know if that conduct would be a violation of the antitrust laws here in the United States?” and “Does it strike you that that might be violative of the antitrust laws of the United States?” and “Do you think that might be criminal conduct by Mr. Britton?”), Rod Martin, (ING U.S.'s OCEO), Jan Hommen (the CEO and Chairman of ING Groep N.V.), Patrick Flynn (the CFO of ...

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