United States District Court, D. Nebraska
M. Gerrard United States District Judge.
matter is before the Court on motions in limine filed by the
plaintiffs (filing 168) and the defendant
(filing 171). The plaintiffs' motion will be
denied in its entirety, without prejudice to reasserting
those objections at trial. The defendant's motion will be
granted in part and denied in part, as set forth below.
Motion in Limine
plaintiffs object to "[t]he Vieau reports dated August
13, 2013 (Trial Ex. 20), and August 28, 2013 (Trial Ex. 22)
and any and all opinions contained therein." Filing
168 at 1. "The foundation for this request is that
Depositors never had the Vieau letters at the time it made
its decision to deny the Jamison's claim. Indeed, the
Vieau letters were not received until AFTER Mike Stumberg and
Depositors made a conclusive decision that the Jamisons'
claim would be denied." Filing 169 at 2.
objection is overruled, without prejudice to
reassertion at trial. In considering whether an insurer acted
in bad faith, the Nebraska Supreme Court has looked at the
adjustment process as being a series of denials. See
Radecki v. Mut. of Omaha, 583 N.W.2d 320, 325-27 (Neb.
1998); see also LeRette v. Am. Med. Sec., Inc., 705
N.W.2d 41, 48-49 (Neb. 2005). The issues in this
case include whether there was an arguable basis for
Depositors' initial denial of coverage and
whether there continued to be an arguable basis for denial of
coverage. The Vieau reports are relevant to the subsequent
denial of coverage, and will be admitted, subject to
appropriate foundation at trial and either appropriate
redaction, or a limiting instruction, or both.
Legal Opinions of Defendant's Counsel
plaintiffs object to "[t]he legal opinion and any and
all legal opinions obtained by Depositors from both in house
and outside counsel. Filing 168 at 1. The Jamisons
contend that "[n]one of the legal opinions have been
produced by Depositors, under claims of attorney client
privilege." Filing 169 at 6.
objection will be overruled without prejudice to
reassertion at trial, because it is not clear to the Court at
this point what evidence is expected to be adduced. Whether
the defendant consulted with counsel regarding the denial of
the plaintiffs' insurance coverage may be relevant to the
plaintiffs' bad faith claim: while evidence of advice of
counsel is insufficient by itself to act as an affirmative
defense to a bad faith claim, seeking the advice of counsel
may be relevant to such a claim. Graske v. Auto-Owners
Ins. Co., 647 F.Supp.2d 1105, 1110 (D. Neb. 2009).
generally, using advice of counsel as a defense implicitly
waives attorney-client privilege with respect to the
communications upon which the defense is based. See,
Garcia v. Kids, No. 8:14CV119, 2016 WL 199413, at *3
(D. Neb. Jan. 15, 2016); GP Indus., LLC v. Eran Indus.,
Inc., No. 8:06CV50, 2006 WL 3290306, at *3 (D. Neb. Nov.
13, 2006); see also Sedco Int'l, S. A. v.
Cory, 683 F.2d 1201, 1206 (8th Cir. 1982). "The
attorney client privilege cannot be used as both a shield and
a sword, " and a party cannot claim in its defense that
it relied on advice of counsel without permitting the
opposing party to explore the substance of that advice.
United States v. Workman, 138 F.3d 1261, 1264 (8th
Cir. 1998); accord, United States v.
Beckman, No. CRIM. 11-228, 2012 WL 1870247, at *1-2
(D. Minn. May 22, 2012); Sedillos v. Bd. of Educ. of
Sch. Dist. No. 1, 313 F.Supp.2d 1091, 1093 (D. Colo.
2004). And that principle is implicated when an insurer uses
consultation of counsel as evidence that it did not deny
coverage in bad faith. See Lee v. Med.
Protective Co., 858 F.Supp.2d 803, 808-09 (E.D. Ky.
2012). As the Maryland Court of Appeals has said in a similar
[W]hat defendants cannot do is defend a charge of bad faith
by referencing specific communications with attorneys that
purportedly provided a good-faith basis for certain actions,
and then refuse to allow any further investigation into those
communications. This is because allowing a defendant to make
the naked assertion that they consulted with their attorneys
leaves the fact finder with the impression that they had
shown good faith even in a situation where they had not. Such
tactics would allow the defendant to use the attorney-client
communication to his benefit and then refuse to answer more
questions about it. This would be an abuse of the
privilege-using it both as a sword and a shield.
CR-RSC Tower I, LLC v. RSC Tower I, LLC, 56 A.3d
170, 207 (Md. 2012) (citations, quotations, and emphasis
omitted); see United States v. Bilzerian, 926 F.2d
1285, 1294 (2d Cir. 1991).
is not clear, at this point, whether the evidence to be
expected at trial will present the defendant's
consultation with counsel as a defense in a manner that
implicates the attorney-client privilege with respect to the
substance of that consultation. Accordingly, the
plaintiffs' objection is overruled: the Court
will rule on any objections presented at trial, considering
the principles set forth above.
Motion in Limine
Use of Insurance Slogans
defendant objects to "[a]ny statement or argument
intended to inflame or arouse feelings of hostility or
resentment to Depositors Insurance Company" or
"Nationwide Insurance, " or "to use any
advertising or advertising slogans in a derogatory
manner." Filing 171 at 1. The defendant's
primary concern, expressed at argument on the motions, is the
use of advertising slogans such as Nationwide's in
argument to the jury. The plaintiffs represent that they do
not intend to make such an argument; therefore, the objection
is sustained: the ...