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GEICO Indemnity Co. v. Smith

United States District Court, D. Arizona

April 5, 2017

GEICO Indemnity Company, Plaintiff,
v.
Darinda Kay Smith, etal., Defendants. Hillary Rider, etal., Counterclaimants,
v.
GEICO Indemnity Company, Counterdefendant.

          ORDER AND OPINION [RE: MOTIONS AT DOCKETS 110, 111, 112, 114, 115, 116, & 117]

          JOHN W.SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT

         I. MOTIONS PRESENTED

         Before the court are seven motions in limine.[1]At docket 110 plaintiff and counterdefendant GEICO Indemnity Company ("GEICO") moves in limine to preclude checks written by Darinda Kay Smith ("Smith") to Pima Federal Credit Union on which Smith handwrote various dates and notations. Defendants and counterclaim ants Darinda Kay Smith, Barry T. Webb, Hillary Rider, Amber Davis, and Nathan Davis (collectively, "Defendants") oppose at docket 119.

         At docket 111 GEICO moves in limine to preclude Smith and Hillary Rider ("Rider") from testifying. Defendants oppose at docket 120.

         At docket 112 GEICO moves in limine to preclude Amber Davis ("Davis") from "stating or suggesting that before the accident underlying this case, Darinda Smith transferred the Chevrolet Silverado listed on her GEICO policy to Smith's son Brandon."[2] Defendants oppose at docket 121.

         At docket 114 Defendants move in limine to preclude evidence that the Cadillac Escalade was insured by Farmers Insurance Company. GEICO opposes at docket 124.

         At docket 115 Defendants move in limine to preclude "any evidence of an assignment of bad faith claims, [and] any evidence of demand letters and/or correspondence from GEICO to the Defendant's counsel."[3] GEICO responds at docket 125.

         At docket 116 Defendants move in limine to preclude evidence of GEICO's claim file and to preclude Jose Castillo from testifying as a witness. GEICO responds at docket 126.

         At docket 117 Defendants move in limine to preclude records from Pima Federal Credit Union and Desert Energy Credit Union regarding Smith. GEICO responds at docket 127.

         Oral argument was requested but would not assist the court.

         II. STANDARD OF REVIEW

         The district courts exercise broad discretion when ruling on motions in limine.[4] In order for evidence to be excluded under such motions, it must be "clearly inadmissible on all potential grounds."[5] "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context."[6]

         "It is settled law that in limine rulings are provisional. Such 'rulings are not binding on the trial judge [who] may always change his mind during the course of a trial.'"[7] "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded."[8]

         III. DISCUSSION

         A. Smith's Pima Federal Credit Union Checks

         GEICO seeks to preclude Defendants from offering copies of seven checks that Smith wrote in 2010. The first six checks are dated before November 30, 2010, and either have nothing, Smith's loan number, or the word "truck" written in the "for" line on the check.[9] According to Defendants, the November 30 check has "Brandon's TR" written in the "for" line, [10] which shows that Smith had transferred ownership of the Chevy Silverado to Brandon. GEICO argues that the checks should be barred, or at least redacted, because the dates and notations on the checks are inadm issible hearsay.

         Defendants do not dispute that the dates and notations are hearsay. Indeed, Defendants offer the dates and notations for the truth of the matters asserted-namely, that the checks were written on the dates indicated and that Sm ith wrote the November 30 check for the purpose of paying down the loan on Brandon's truck (if, in fact, that is what is written in the "for" line). Defendants argue that the checks are admissible under several exceptions to the hearsay rule. The court agrees; GEICO's motion will be denied.

         Defendants first argue that the disputed assertions qualify as statements in documents that affect an interest in property under Rule 803(15). Under this rule a hearsay statement is admissible (1) if it is "contained within a document that affects an interest in property;" (2) if it is "relevant to the purport of the document;" and (3) "if dealings with the property since the document was made have not been inconsistent with the truth of the" statement.[11] All three requirements are met here. A check is a document that establishes or affects an interest in property because it orders the drawer's bank to pay the payee a sum certain in money.[12] The date and any information listed in the "for" line of a check is relevant to the check's purpose. And it does not appear that there were any subsequent dealings that are inconsistent with the truth of the statements or the purport of the checks.

         Even if Rule 803(15) did not apply, the court finds that the checks will likely qualify under the residual exception to the hearsay rule.[13] That exception, set out in Rule 807, provides that a hearsay statement is not excluded if (1) it has "circumstantial guarantees of trustworthiness" equivalent to those presented under the hearsay exceptions in Rule 803 or 804; "(2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice."[14]

         With regard to factors (3) and (4), it is premature to rule on whether the checks are more probative than any of Defendants' other evidence or whether admitting them will best serve the purpose of the rules and the interests of justice. Factors (1) and (2) are satisfied because the checks are offered as evidence of a material fact and they have circumstantial guarantees of trustworthiness. As Defendants point out, when the checks were written Smith could not possibly have known that she would be involved in an automobile collision and a subsequent dispute with GEICO about the truck's ownership. The fact that Smith had no motive to fabricate the dates or notations on her loan payment checks provides a circumstantial guarantee of trustworthiness.

         B. Smith and Rider Will Not Be Precluded Outright From Testifying

         GEICO's next motion seeks an order precluding Smith and Rider from testifying at trial, arguing that their testimony is irrelevant under Rule 401 and that the probative value of their testimony is substantially outweighed by a danger of unfair prejudice under Rule 403. With regard to Smith, Defendants acknowledge that Smith has suffered memory loss that prevents her from testifying as to most material facts. But, the court agrees with Defendants that GEICO has not established that Sm ith has no relevant testimony to offer. For example, as Defendants point out, Smith's testimony regarding her memory loss itself is relevant under Rule 401. The probative value of such testimony is not substantially outweighed by a danger of unfair prejudice.

         With regard to Rider, Defendants concede that it "may be true" that Rider is capable of offering "little or no" testimony relevant to the coverage dispute central to this trial.[15] Yet, Defendants maintain that they should be allowed to call Rider as a witness "solely in the event that there is some factual dispute regarding the nature of the accident, the loss that she incurred, and/or any other matter for which she may have relevant testimony."[16] The court agrees with the parties that Rider will not likely offer relevant testimony at this trial, but finds it premature to rule that her testimony is irrelevant in its entirety. If Rider does testify, the court agrees with GEICO that the probative value of her testimony on the topic of the loss of her son would be substantially outweighed by a danger of unfair prejudice.

         C. Davis' Testimony Regarding Smith's Transfer of Ownership of the Silverado

         At her deposition Davis testified that "the arrangement" between Smith and her son Brandon "was supposed to be" that Brandon would acquire ownership of the Chevy Silverado once Smith acquired the Cadillac Escalade.[17] But Davis testified that she had no idea whether Smith actually followed through on this plan.[18] GEICO seeks an order precluding Davis from testifying that Smith transferred the Silverado to Brandon upon acquiring the Escalade because she lacks knowledge of whether the transfer occurred.

         Defendants do not and cannot dispute that Davis lacks firsthand knowledge of any actual transfer of ownership; Davis ...


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