United States District Court,

D. Minnesota.

ACUITY, a Mutual Insurance Company, Plaintiff,

v.

Bryan C. JOHNSON, Individually and d/b/a BCJ, and Western National Mutual Insurance Company, Defendants.

 

Civil No. 11–1748 (MJD/LIB).

April 26, 2013.

 

Beth A. Jenson Prouty and James F. Mewborn, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., for Plaintiff Acuity.

 

Aaron M. Simon and Rolf E. Sonnesyn, Tomsche Sonnesyn & Tomsche, P.A., for Defendant Bryan C. Johnson.

 

Patrick J. Boley, Paul A. Sand, Paula Duggan Vraa, and John M. Bjorkman, Larson King, LLP, for Defendant Western National Mutual Insurance Company.

 

ORDER

MICHAEL J. DAVIS, Chief Judge.

I. INTRODUCTION

*1 This matter is before the Court on three motions in limine by Plaintiff Acuity, and four motions in limine by Defendant Western National Mutual Insurance Company. [Docket Nos. 52, 64] This matter is also before the Court on Plaintiff Acuity’s April 25, 2013 Letter to the Court requesting the Court to exclude certain portions of deposition transcripts. [Docket No. 82] Defendant Bryan C. Johnson has not filed any motions in limine and has not opposed or otherwise responded to any of the motions in limine pending before the Court. Trial is set to start on April 29, 2013.

 

II. BACKGROUND

The factual background and procedural posture of this case are laid out in detail in the Court’s April 26, 2013 Order on Acuity’s first motion in limine and Acuity’s motion to dismiss. [Docket No. 83]

 

III. PLAINTIFF ACUITY’S MOTIONS IN LIMINE

 

A. Plaintiff’s Motion to Preclude Western National from Referencing Any Errors Allegedly Made by Holden Duluth Agency as Evidence to Suggest that Holden Made an Error When it Removed the 1986 and Added the 1987 Tractor to Johnson’s Policy.

 

The Court denies Acuity’s motion to preclude Western National from referencing any errors allegedly made by Holden Duluth Agency. The alleged errors identified by Acuity and Western National are directly relevant to the central fact issue that the jury will decide. The alleged errors are also admissible for impeachment purposes.

 

B. Plaintiff’s Motion to Preclude Western National from Referencing—or Introducing Evidence—that Holden Duluth Agency Thought It Had Binding Authority to Make Changes to Johnson’s Trucking Policy but that Holden Did Not Have Such Authority According to Acuity.

The Court denies Acuity’s motion to preclude Western National from referencing or introducing evidence that Holden Duluth Agency thought it had binding authority to make changes to Johnson’s policy. Evidence that Holden employees Bauer and Rothe mistakenly stated that Holden had binding authority to make changes to Johnson’s policy is admissible at trial. The evidence is relevant because it shows conflicting testimony between Acuity and Holden on the critical issue of when changes to Johnson’s policy would be effective. The evidence is also admissible for impeachment of Holden employees.

 

C. Plaintiff’s Motion to Preclude Western National From Suggesting that Johnson Did Not Have Exclusive Access to His Postal Box.

The Court denies Acuity’s motion to preclude Western National from suggesting that Johnson did not have exclusive access to his postal box. Acuity’s motion is overly broad. Further, Acuity can address this issue during its crossexamination of Johnson.

 

IV. DEFENDANT WESTERN NATIONAL’S MOTIONS IN LIMINE

 

A. Defendant’s Motion to Exclude All Evidence, Argument, Or Reference to J & B Trucking’s Western National Insurance Policy.

 

The Court denies Western National’s motion to exclude all evidence, argument or reference to J & B Trucking’s Western National Insurance policy. The existence of J & B Trucking’s Western National insurance policy is relevant to this case as the case is a dispute between two insurance companies over which company must provide coverage. The Court denies this motion in order to permit the parties to present the jury with a fair and accurate portrayal of the underlying dispute.

 

B. Defendant’s Motion to Exclude All Evidence, Argument, or Reference to the Dispute’s Underlying Accident, Beyond the Parties’ Stipulated Facts.

*2 Acuity objects to this motion only to the extent it seeks to prevent evidence of Western National’s insurance policy. As addressed above, the Court denies Western National’s motion to preclude evidence of its insurance policy. Therefore, the Court grants Western National’s motion to exclude all evidence, argument, or reference to the dispute’s underlying accident beyond the stipulated facts.

 

C. Defendant’s Motion to Exclude the Testimony of Bob Magie, Acuity’s Proposed Expert Witness.

Acuity does not object to this motion in limine because it does not intend to introduce Magie’s testimony to the jury. Therefore, the Court grants Western National’s motion in limine to exclude the testimony of Bob Magie.

 

D. Defendant’s Motion to Exclude The Testimony of Jennifer L. Weber, One of Acuity’s Proposed Fact Witnesses.

The Court denies Western National’s motion to exclude the testimony of Jennifer L. Weber. Although Acuity concedes that Weber was not disclosed during discovery, there is no evidence that the late disclosure is unfairly prejudicial to Western National. Acuity offered to make Weber available before trial for a trial deposition. Further, Western National should not be surprised that Acuity plans to call a witness to testify about the policy assembly team’s procedures for mailing policies and notices to Acuity’s insureds because Acuity underwriter Robert Nienhuis was asked about this topic during his deposition. Nienhuis identified the “policy assembly team” as the group responsible for mailing policies and notices to the insureds.

 

V. PLAINTIFF ACUITY’S APRIL 25, 2013 LETTER

In light of the Court’s Order denying Acuity’s motion to dismiss Johnson [Docket No. 83], the Court denies Acuity’s request to exclude certain portions of the deposition transcripts as moot.

 

Accordingly, based upon the files and records herein, IT IS HEREBY ORDERED:

 

1. Plaintiff Acuity’s Motion In Limine [Docket No. 64] is DENIED.

 

2. Defendant Western National’s Motion in Limine [Docket No. 52] is GRANTED IN PART AND DENIED IN PART as follows:

 

a. Defendant’s Motion to Exclude All Evidence, Argument, Or Reference to J & B Trucking’s Western National Insurance Policy is DENIED;

 

b. Defendant’s Motion to Exclude All Evidence, Argument, Or Reference to The Dispute’s Underlying Accident, Beyond The Parties’ Stipulated Facts is GRANTED;

 

c. Defendant’s Motion to Exclude The Testimony of Bob Magie, Acuity’s Proposed Expert Witness is GRANTED; and

 

d. Defendant’s Motion to Exclude The Testimony of Jennifer L. Weber, One of Acuity’s Proposed Fact Witnesses is DENIED.

 

3. Plaintiff Acuity’s Motion to Exclude Certain Portions of Deposition Testimony [Docket No. 82] is DENIED AS MOOT.

United States District Court,

D. Minnesota.

ACUITY, a Mutual Insurance Company, Plaintiff,

v.

Bryan C. JOHNSON, Individually and d/b/a BCJ, and Western National Mutual Insurance Company, Defendant.

Civil No. 11–1748 (MJD/LIB).

April 26, 2013.

Beth A. Jenson Prouty and James F. Mewborn, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Counsel for Plaintiff Acuity.

Aaron M. Simon and Rolf E. Sonnesyn, Tomsche Sonnesyn & Tomsche, P.A., Counsel for Defendant Bryan C. Johnson.

Patrick J. Boley, Paul A. Sand, Paula Duggan Vraa, and John M. Bjorkman, Larson King, LLP, Counsel for Defendant Western National Mutual Insurance Company.

ORDER

MICHAEL J. DAVIS, Chief Judge.

I. INTRODUCTION

*1 This matter is before the Court on four motions in limine by Plaintiff Acuity, and four motions in limine by Defendant Western National Mutual Insurance Company. [Docket Nos. 52, 64] Defendant Bryan C. Johnson has not filed any motions in limine and has not opposed or otherwise responded to any of the motions in limine pending before the Court. Also before the Court is Plaintiff Acuity’s Motion to Dismiss Bryan C. Johnson, Individually and d/b/a BCJ. [Docket No. 74] Trial is set to start on April 29, 2013.

This Order addresses: (1) Plaintiff Acuity’s first motion in limine to preclude Western National from seeking to reform Acuity’s policy; and (2) Plaintiff Acuity’s motion to dismiss Bryan C. Johnson, individually and d/b/a BCJ. For the reasons that follow, the Court will deny both motions.

The Court has taken the remaining motions under advisement.

II. BACKGROUND

A. Factual Background

This is an insurance coverage dispute involving commercial automobile insurance policies. On December 5, 2010, there was a motor vehicle accident at the intersection of U.S. Highway 2 and 2d St. East in Proctor, Minnesota. Defendant Bryan Johnson was operating a 1986 International semi-tractor pulling a trailer owned by J & B Trucking when he collided with a vehicle driven by Penny Marlow. As a result of the accident, the trailer Johnson was pulling overturned, landed on Marlow’s vehicle, and killed her.

Defendant Johnson was insured by Acuity under a commercial auto policy, number L34980. For an unknown time period before the 2010–2011 policy period, Acuity’s policy covered Johnson’s 1986 International semi-tractor. Acuity’s policy shows that on or about the policy’s renewal date of February 21, 2010, the 1986 International was removed from coverage and replaced with a 1987 International. There is a dispute over the circumstances of the removal of the 1986 International from the insurance policy, and whether Holden Duluth Agency, Acuity’s local agent, had authority to remove the 1986 International.

J & B Trucking was insured by Western National under a commercial auto policy, number CPP 0019631 02, with a renewal policy period of June 28, 2010 to June 28, 2011. The policy provides liability limits of $1,000,000 per accident minus the deductible. The J & B trailer that Johnson was hauling at the time of the accident is alleged to be covered by this Western National policy.

The insurance companies dispute whether Acuity or Western National must provide insurance coverage to Johnson. Western National refused to defend Johnson in the underlying wrongful death action brought in St. Louis County, Minnesota (Elizabeth Mascarenas and Ruth Burchett, as Co–Trustees for Next–of–Kin of Penny Neryne Marlow, decedent v. Bryan C. Johnson, individually and d/b/a BCJ and J & B Trucking, LLC, et al., Court File No. 69DUCV–11–2640). Acuity defended Johnson under a reservation of rights and settled the liability lawsuit against Johnson for $561,000 on March 11, 2013. This settlement expressly reserved Acuity’s rights to pursue indemnity, contribution, or any other cause of action available to it against Johnson and Western National.

B. Procedural History

*2 On July 1, 2011, Acuity filed a Declaratory Judgment in this Court against Johnson and Western National, which requests an Order and Judgment declaring, inter alia, that Western National provides the primary insurance coverage to Johnson and Acuity’s policy did not provide coverage for the 1986 International operated by Johnson at the time of the accident. [Docket No. 1]

On March 15, 2013, at the settlement conference conducted by Magistrate Judge Brisbois, Acuity and Johnson reached a settlement of their issues in this coverage action. Acuity provided the Court with a copy of the settlement agreement on April 23, 2013, when it filed the present motion. The agreement is signed by Jim Schwartz, Senior Claims Adjuster at Acuity and Acuity’s counsel, James Mewborn and dated April 15, 2013. To date, the agreement has not been signed by Johnson or his counsel.

III. DISCUSSION

A. Plaintiff Acuity’s Motion to Preclude Western National from Seeking to Reform Acuity’s Policy.

The Court denies Acuity’s motion to preclude Western National from seeking to reform Acuity’s policy. The parties’ dispute centers on whether Acuity or Western National must provide insurance coverage to Johnson for the December 2010 accident. Western National has standing to challenge coverage issues under the Acuity policy as its coverage liability is dependent on whether and to what extent Acuity’s policy provides coverage. See, e.g., Rhone–Poulenc, Inc. v. Int’l Ins. Co., 877 F.Supp. 1170, 1174 (N.D.Ill.1995) (stating that “any declaration of the excess insurer’s coverage liability necessarily depends on whether and to what extent the primary insurer covers the loss”), vacated on other grounds Rhone–Poulenc, Inc. v. Int’l Ins. Co., 71 F.3d 1299 (7th Cir.1995). Acuity acknowledged that Western National has a tangible interest in the resolution of the coverage issues when it named Western National as a defendant in its declaratory judgment action. Acuity’s settlement with Johnson does not alter Western National’s standing on this issue. Carlson Marketing Group, Inc. v. Royal Indemnity Co., 517 F.Supp.2d 1089, 1117 (D.Minn.2007) (refusing to give weight to a stipulation between policy holder and one of the excess insurers regarding the terms of the underlying insurance policy).

B. Plaintiff’s Acuity’s Motion to Dismiss Bryan C. Johnson, Individually and d/b/a BCJ.

The Court denies Acuity’s motion to dismiss Bryan C. Johnson, individually and d/b/a BCJ. Acuity moves the Court to dismiss Johnson from the case because: (1) the settlement agreement released Johnson from future liability and he has no continuing legal interest in the case, and (2) Johnson’s participation at trial would be prejudicial.

As an initial matter, Acuity has not provided the Court with a fully executed settlement agreement between it and Johnson. Acuity appears to suggest to the Court in a footnote in its memorandum of law that the Court can “enforce a settlement agreement that contemplates the execution of a later written document.” Sowada v. Luberts, No. 09–3320 (MJD/LIB), 2011 WL 1869208 (D.Minn. Mar. 28, 2011). There is no motion pending before this Court to enforce the settlement agreement. Further, there is no indication in the record before the Court as to why Johnson has not signed the agreement or if he now objects to any of the terms of the agreement.

*3 Additionally, the settlement agreement does not resolve the cross-claims asserted by Western National against Johnson. Because of the outstanding crossclaims, Johnson has a right to participate at trial and have an attorney present. Finally, the Court is well-equipped to ensure that the case is tried efficiently and without the duplicated lines of questions that Acuity argues would be prejudicial to it.

Accordingly, based upon the files and records herein, IT IS HEREBY ORDERED:

1. Plaintiff Acuity’s Motion to Preclude Western National from Seeking to Reform Acuity’s Policy [Docket No. 64] is DENIED.

2. Plaintiff Acuity’s Motion to Dismiss Bryan C. Johnson, Individually and d/b/a BCJ [Docket No. 74] is DENIED.