2018 WL 4509216

United States District Court, M.D. Pennsylvania.
JOSEPH SUNDAY, JR. d/b/a SUNDAY TRUCKING, LLC, Plaintiff,
v.
BERKSHIRE HATHAWAY HOMESTATE INSURANCE COMPANY and NATIONAL LIABILITY & FIRE INSURANCE COMPANY, Defendants.
NO. 3:17-CV-00946
|
09/19/2018

A. Richard Caputo, United States District Judge

MEMORANDUM
*1 Presently before me is a Motion for Reconsideration (Doc. 29) filed by Defendant Berkshire Hathaway Homestate Insurance Company (“BHHIC”). In its motion, BHHIC requests reconsideration of my denial of summary judgment on Count Three of Plaintiff Joseph Sunday’s complaint. Because BHHIC fails to satisfy the standard for reconsideration, its Motion will be denied.

I. Background
I summarized the undisputed factual background of this matter in my July 31, 2018 Memorandum. (See Doc. 27). In that Memorandum and its accompanying Order, I held that summary judgment could not be granted on Count Three of Sunday’s complaint, which alleges breach of contract against BHHIC. (Id. at 10-11). I explained that when an insurer like BHHIC seeks to cancel an automobile insurance policy, Pennsylvania law requires the notice of cancellation to “[s]tate the specific reason or reasons of the insurer for cancellation or refusal to renew.” (Id. at 11 (quoting 40 P.S. § 991.2006(3))). The provisions of Sunday’s insurance policy require the same. Id.

BHHIC discovered Sunday was “operating unscheduled equipment” not listed on his policy, which Sunday disputes. (Id. at 12). BHHIC also concluded that Sunday’s poor payment history was grounds for cancellation, and BHHIC underwriter Joseph Nibley informed Sunday’s insurance broker of both grounds in a June 3, 2015 email. (Doc. 30 at 10-12). The June 4, 2015 cancellation notice that BHHIC sent to Sunday, however, did not specifically mention his untimely payment as a reason for cancellation. (Doc. 27 at 11). The notice instead stated “a condition, factor or loss experience material to insurability ha[d] changed substantially or become known during the policy term,” which mirrors the policy’s “catchall” cancellation provision, Section 3(c). (Id.). Prior notices which were rescinded did state “[n]onpayment of premium to company” as a reason for cancellation, though, mirroring Section 3(b)’s language. (Id. n.6). After receiving the June 4 notice, Sunday applied for replacement insurance coverage from National Liability & Fire Insurance Company (“National Liability”). (Id. at 4).

BHHIC filed a Motion for Reconsideration, arguing that the June 4 notice did specifically mention poor payment history as a reason for cancellation (Doc. 30 at 5-10), and that BHHIC underwriter Joseph Nibley informed Sunday’s insurance broker of that reason on June 3, 2015 by email (id. at 10-12). BHHIC also argues that Sunday’s attempt to obtain replacement coverage from National Liability after the June 4 notice conceded the adequacy of the notice. (Id. at 12). Sunday argues in response that the notice was ineffective because it did not specifically mention poor payment history as a reason for cancellation, regardless of Nibley’s email and Sunday’s post-notice actions. (Doc. 31 at 3-4).

The Motion has been fully briefed and is now ripe for review.

II. Discussion
The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A motion for reconsideration may be granted if the movant establishes: (1) an intervening change in controlling law; (2) the availability of new evidence that was not available when the court decided the motion; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max’s Seafood Café, by Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

*2 BHHIC has not identified a change in intervening law, nor has it pointed to new evidence that was previously unavailable. Instead, BHHIC argues I committed three clear errors of law or fact: (1) Sunday’s policy was properly cancelled by the June 4, 2015 notice under Section 3(c) for his poor payment history (Doc. 29 at ¶¶ 11(a)-(c)); (2) BHHIC underwriter Joseph Nibley’s June 3, 2015 email to Sunday’s insurance broker constituted sufficient notice of cancellation (id. ¶¶ 11(d)-(f)); and (3) Sunday “effectively conceded that he received adequate notice of cancellation” by applying to National Liability for replacement insurance coverage (id. ¶ 11(g)).

The June 4 notice did not properly cancel Sunday’s policy on the basis of his poor payment history. Insurers must cancel policies in strict accordance with 40 P.S. § 991.2006, and the insurer has the burden of proving compliance. Nationwide Ins. Co. v. Pa. Ins. Dep’t, 779 A.2d 14, 17 (Pa. Commw. Ct. 2001). 40 P.S. § 991.2006(3) provides that a cancellation “shall not be effective unless the insurer delivers or mails to the named insured…a written notice of cancellation,” which “shall…[s]tate the specific reason or reasons of the insurer for cancellation.” Nonpayment as a reason for cancellation is expressly dealt with in Section 3(b) of the policy. The “catchall” cancellation provision, Section 3(c), refers instead to a “condition, factor or loss experience material to insurability [that] has changed substantially.” BHHIC claims two cancellation reasons were stated in the notice: chronic nonpayment and operation of equipment not listed on the policy. But if that were the case, the June 4 notice would have cited conditions, factors, or loss experiences—plural, not singular. The notice thus specifies only one reason for cancellation, and BHHIC cannot shoehorn repeated nonpayment into the language of Section 3(c) and the June 4 notice. BHHIC sent prior notices of cancellation (which were rescinded) specifically citing nonpayment of premiums per Section 3(b), whereas the June 4 notice cited a substantially changed “condition, factor or loss experience material to insurability” per Section 3(c). See Atl. Richfield Co. v. Razumic, 390 A.2d 736, 741 (Pa. 1978) (noting that course of performance is always relevant in interpreting a writing). Therefore, the notice did not specifically state nonpayment, repeated or not, as a reason for cancellation, as required by both Pennsylvania law and the terms of the policy.

For similar reasons, neither Nibley’s June 3 email to Sunday’s insurance broker nor Sunday’s applying for replacement coverage renders the June 4 notice effective to cancel the policy on nonpayment grounds. Again, BHHIC must have strictly complied with the provisions of 40 P.S. § 991.2006 in order to cancel the policy. Nationwide Ins. Co. v. Pa. Ins. Dep’t, 779 A.2d 14, 17 (Pa. Commw. Ct. 2001). As for the email, no provision of the statute permits an insurer to state specific reasons for cancellation in an email preceding or even accompanying a notice of cancellation. Section 991.2006(5), by comparison, does permit the insurer to advise the insured “in an accompanying statement” of “his possible eligibility for insurance through the automobile assigned risk plan.” BHHIC thus asks me to interpret Section 991.2006(3) to include language that the legislature used only in Section 991.2006(5)—this is an unreasonable and therefore unacceptable construction. 1 Pa. Cons. Stat. Ann. § 1922(1); see, e.g., United States v. Morton, 467 U.S. 822, 828 (1984) (courts should “read statutes as a whole”). Because Section 991.2006(3) requires that specific reasons for cancellation be stated in the written notice of cancellation and not in an accompanying statement, Nibley’s June 3 email was insufficient to cancel Sunday’s policy. And because the notice of cancellation was defective, Sunday’s applying for new insurance coverage from National Liability could not have “effectively conceded that he received adequate notice of cancellation of the BHHIC policy.” (Doc. 30 at 12).

*3 Accordingly, there is no basis for reconsideration of my July 31, 2018 Order denying summary judgment to BHHIC as to Count Three of Sunday’s complaint.

III. Conclusion
For the above stated reasons, BHHIC’s Motion for Reconsideration will be denied. An appropriate order follows.

September 19, 2018 /s/ A. Richard Caputo

Date A. Richard Caputo United States District Judge
All Citations
Slip Copy, 2018 WL 4509216

Bishop v. Anderson
United States District Court for the Western District of Kentucky
September 18, 2018, Decided; September 19, 2018, Filed
CIVIL ACTION NO. 5:16-CV-128-TBR

Reporter
2018 U.S. Dist. LEXIS 159636 *
GERRY L. BISHOP, Plaintiff v. DAVID A. ANDERSON, R&L TRANSFER, INC., R&L CARRIER SHARED SERVICES, LLC, and GREENWOOD MOTOR LINES, INC., Defendants

OPINION AND ORDER
This matter is before the Court upon multiple motions in limine filed by the Defendants David Anderson, R&L Transfer, Inc., R&L Carrier Shared Services, LLC, and Greenwood Motor Lines, Inc. (R. 51-55). Plaintiff has responded. (R. 65). This matter is now ripe for adjudication. [*2] For the following reasons, Defendants’ Motion in Limine to Limit the Description of the Subject Accident (R. 51) is DENIED IN PART and GRANTED IN PART, and the rest of Defendants’ motions in limine are GRANTED.

Background
A semi-truck collided with Gerry Bishop’s vehicle in Oak Grove Kentucky in January of 2015 causing him various injuries. (R. 1). Bishop brought a negligence suite against the truck’s driver, David Anderson, along with R&L Transfer (the company that owns the truck), Greenwood Motor Lines (the company that leases the truck from R&L Transfer), and R&L Carrier Shared Services (the Company that employed Anderson during the accident). (R. 1; R. 42). All three companies are related business entities. The Defendants do not dispute liability, leaving damages as the sole issue for trial. (R. 47). The Defendants filed five motions in limine. (R. 51-55). Bishop opposes three of them. (R. 65).

Legal Standard
Using the inherent authority to manage the course of trials before it, this Court may exclude irrelevant, inadmissible, or prejudicial evidence through in limine rulings. See Luce v. United States, 469 U.S. 38, 41 n.4, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984) (citing Fed. R. Evid. 103(c)); Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013); Mahaney ex rel. Estate of Kyle v. Novartis Pharms. Corp., 835 F. Supp. 2d 299, 303 (W.D. Ky. 2011). Unless such evidence is patently “inadmissible for any purpose,” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997), though, the “better [*3] practice” is to defer evidentiary rulings until trial, Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975), so that “questions of foundation, relevancy and potential prejudice may be resolved in proper context,” Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706 (E.D. Ky. 2010). A ruling in limine is “no more than a preliminary, or advisory, opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff’d, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443). Consequently, the Court may revisit its in limine rulings at any time and “for whatever reason it deems appropriate.” Id. (citing Luce, 713 F.2d at 1239).

Discussion
Defendants filed five motions in limine (R.51-55), but Bishop only opposes three: Defendants’ Motions in Limine to Limit the Description of the Subject Accident (R. 51), Defendants’ Motion in Limine as to Various Issues and Evidence (R. 54), and Defendants’ Motion in Limine to Exclude Improper References to Defendants’ Trial Counsel or the Cost of Defendants’ Defense. The Court will grant the unopposed motions and address each opposed motion respectively (R.52).

I. Defendants’ Motion in Limine to Limit the Description of the Subject Accident
With their Motion in Limine to Limit the Description of the Subject Accident the Defendants move the Court for an order prohibiting any potential testimony regarding the accident, including how fast the semi-truck was going and whether it slowed down prior [*4] to impact. (R. 51). Defendants also seek to prohibit any testimony as to why the semi-truck was unable to stop or slow prior to impact. (R.51). Defendants argue these details are irrelevant because they conceded liability. (R.51). They also point out that no accident reconstructionist has been hired and Bishop has no scientific evidence to establish the semi-truck’s speed or whether it braked prior to impact. (R.51).
Bishop responds simply that he, and his eyewitness to the collision, should be permitted to describe the accident as they observed it, including perceived speed and whether the vehicles were braking prior to collision. (R. 65). The Court agrees.
Any potential testimony by Bishop or his eyewitness concerning details of the accident, including how fast the semi-truck was going or whether it braked, constitutes lay witness opinion testimony governed by Rule 701. That Rule provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized [*5] knowledge within the scope of Rule 702.
Fed. R. Evid. 701. As best the Court can discern,1 the Defendants seem to imply that any testimony regarding the details of the accident—particularly the speed of semi-truck and whether it was slowing down—would require the specialized knowledge of an accident reconstructionist, thereby running afoul of Rule 701(c). But as long as Bishop and his eyewitness perceived the collision—however brief that perception might have been—they may testify as to its details, including the semi-truck’s speed and whether the semi-truck’s speed was slowing. See, United States v. Jackson, 688 F.2d 1121, 1125 (7th Cir. 1982) (holding eyewitness testimony regarding speed admissible under Rule 701, and determining the length of perception to go towards weight and not admissibility); Accord, Ford v. Southwestern Greyhound Lines, Inc., 180 F.2d 934, 936 (5th Cir. 1950) (holding the same). Such testimony requires no accident reconstructionist and no scientific evidence, or specialized knowledge. Robinson v. Louisville R. Co., 112 F. 484, 487 (6th Cir. 1901) (holding that no “technical knowledge was required” for an opinion on vehicle speed). In fact, such testimony is exactly the type intended to be admitted under Rule 701. See, e. g., United States v. Sowards, 690 F.3d 583, 604 n.6 (4th Cir. 2012) (compiling examples in which courts have permitted lay witness testimony regarding vehicle speed under Rule 701); Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1197 (3rd Cir. 1995) [*6] (“Other examples of this type of quintessential Rule 701 testimony include. . . the speed of a vehicle.”). Thus, the Defendants request to prohibit testimony regarding accident details based on a lack of scientific evidence or qualification is without merit.
Furthermore, contrary to the Defendants argument, the details of the accident, including how fast the semi-truck was going and whether it slowed prior to impact, are relevant. Defendants argue those details are irrelevant because only damages are contested at trial. But the semi-truck’s speed and whether it braked or slowed prior to colliding with Bishop’s vehicle correlate to the severity of Bishop’s injuries, making these details directly relevant to damages. See Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319, (1998) (holding a vehicle’s speed relevant to injuries sustained in car accident); Berndston v. Annino, 177 Conn. 41, 43, 411 A.2d 36 (1979) (“Speed is relevant to the severity of impact and, inferentially, to the injury sustained.”); Hall v. Burkert, 117 Ohio App. 527, 528, 193 N.E.2d 167 (1962) (holding that despite liability being admitted, the vehicle’s speed was relevant to the severity of the plaintiff’s injuries and, therefore, damages). However, the Court agrees with the Defendants that any potential testimony outside the witness perception regarding why the semi-truck did not stop [*7] prior to impact is irrelevant. Such testimony is closer to speculation than to permissible Rule 701 testimony. Therefore, to the extent the potential testimony is rationally based on witness perception, the Court denies Defendants’ request to prohibit testimony on the accident’s details—including the semi-truck’s speed and whether it braked prior to impact—but grants Defendants’ request to prohibit testimony regarding why the semi-truck failed to stop prior to impact.

II. Defendants’ Motion in Limine as to Various Issues and Evidence
Bishop only objects to Part 4 of Defendants’ Motion in Limine as to Various Issues and Evidence. (R. 65). Part 4 seeks to exclude any testimony or evidence by Bishop or his witnesses regarding Bishop’s medical condition, and the cause thereof, as beyond Rule 701’s scope. (R. 54). Bishop responds by stating “that a lay witness should be allowed to testify concerning the observations they have made of the plaintiff and whether the symptoms existed prior to the accident.” (R. 65).
Defendants are correct. Medical conclusions and causation are beyond the scope of admissible lay witness testimony. Shinnick v. Ram Kabir, LLC, 2016 U.S. Dist. LEXIS 162326, *5-6, 2016 WL 6909827 (W.D. Ky. Nov. 23, 2016) (citing United States v. Holden, 625 F. App’x 316, 318 (9th Cir. 2014); United States v. El-Mezain, 664 F.3d 467, 511 (5th Cir. 2011)). But witnesses are certainly free to testify as to their own perceptions. [*8] Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 240 (6th Cir. 2010). This includes a person’s observed conduct, condition, and symptoms. Id. at 241 (“The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons or things, identity, the manner of conduct. . .”) (emphasis added); Shinnick, 2016 U.S. Dist. LEXIS 162326 at *7 (holding that witnesses are free to testify regarding a person’s observed condition and ability to manage affairs); Mahaney v. Novartis Pharms. Corp., 835 F. Supp. 2d 299, 305 (W.D. Ky. 2011) (holding that witnesses may testify as to symptoms but not causes); Kovacic v. Ponstingle, 2014 U.S. Dist. LEXIS 133600, 2014 WL 4715859, *5-6 (N.D. Ohio Sep. 22, 2014) (holding that the plaintiff may testify to their symptoms and when they began but not their cause). Accordingly, the Court grants the Defendants request to exclude potential testimony by Bishop and his lay witnesses regarding any medical conclusions and causation. In so doing, the Court notes that Bishop and his witnesses are free to testify as to Bishops symptoms, condition, and conduct to the extent they personally observed them.

III. Defendants’ Motion in Limine to Exclude Improper References to Defendants’ Trial Counsel or the Cost of Defendants’ Defense
Defendants seek to “exclude improper references to Defendants’ trial counsel or the costs of Defendants’ defense” based on relevance and issues of prejudice pursuant [*9] Rule 403. (R.52). “Broad discretion is given to district courts in determinations of admissibility based on considerations of relevance and prejudice.” United States v. Warshak, 631 F.3d 266, 330 (6th Cir. 2010) (quoting Unites States v. Jackson-Randolph, 282 F.3d 369, 376 (6th Cir. 2002) (citing United States v. Hawkins, 969 F.2d 169, 174 (6th Cir. 1992))). Here, the Court can determine no way in which references to Defendants’ trial counsel or Defendants’ defense costs might offer any probative value at trial. However, the Court notes Bishop’s objection regarding the necessity to inquire during voir dire about whether a potential jury member has been represented by opposing counsel. Therefore, the Court Grants Defendants’ motion to the extent it does not interfere with effective voir dire.

Conclusion
For the reasons stated herein, Defendants’ Motion in Limine to Limit the Description of the Subject Accident (R. 51) is hereby DENIED IN PART and GRANTED IN PART, and Defendants’ remaining Motions in Limine (R. 52-55) are hereby GRANTED.
/s/ Thomas B. Russell
Thomas B. Russell, Senior Judge
United States District Court
September 18, 2018