United States District Court, D. Arizona
ORDER AND OPINION [RE: MOTIONS AT DOCKETS 110, 111,
112, 114, 115, 116, & 117]
W.SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT
the court are seven motions in limine.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 111 GEICO moves in limine to preclude Smith
and Hillary Rider ("Rider") from testifying.
Defendants oppose at docket 120.
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." Defendants oppose
at docket 121.
docket 114 Defendants move in limine to preclude
evidence that the Cadillac Escalade was insured by Farmers
Insurance Company. GEICO opposes at docket 124.
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." GEICO responds at docket 125.
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 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.
argument was requested but would not assist the court.
STANDARD OF REVIEW
district courts exercise broad discretion when ruling on
motions in limine. In order for evidence to be excluded
under such motions, it must be "clearly inadmissible on
all potential grounds." "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
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.'" "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
Smith's Pima Federal Credit Union Checks
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. According to Defendants, the November 30
check has "Brandon's TR" written in the
"for" line,  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.
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.
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. 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. 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
Rule 803(15) did not apply, the court finds that the checks
will likely qualify under the residual exception to the
hearsay rule. 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."
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
Smith and Rider Will Not Be Precluded Outright From
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.
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. 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." 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.
Davis' Testimony Regarding Smith's Transfer of
Ownership of the Silverado
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. But Davis testified that she had no idea
whether Smith actually followed through on this
plan. 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.
do not and cannot dispute that Davis lacks firsthand
knowledge of any actual transfer of ownership; Davis ...