Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-01070-PSF-PAC

Document 68

Filed 07/06/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-F 1070 (PAC) DANNIE W. JOHNSON and MARTHA D. JOHNSON Plaintiffs, v. OVERRIGHT TRUCKING, INC., a New Mexico Corporation, and ROSS A. REED, Defendants. PLAINTIFFS' MOTION IN LIMINE AND SUPPORTING AUTHORITIES RE: EXCLUSION OF TESTIMONY OF DENISE KIMSEY Plaintiffs, by and through their undersigned Counsel, for their Motion in Limine re: Exclusion of Testimony of Denise Kimsey' and Supporting Authorities pursuant to Fed. R. Evid. 401 re: Relevance, Rule 411 re: Insurance and C.R.S. § 13-21-111.6 states as follows: CERTIFICATE OF CONFERRAL WITH OPPOSING COUNSEL Pursuant to D.C. Colo. L Civ R 7.1, the undersigned counsel certify that they have conferred unsuccessfully with opposing counsel to resolve the dispute raised herein and the within Motion was filed thereafter. MOTION IN LIMINE RE: EXCLUSION OF TESTIMONY OF DENISE KIMSEY Defendants, in their Answer have asserted a claim for reduction of verdict by way of application of collateral sources and have determined that the Plaintiffs did purchase, well in advance of the incident in question, homeowners' insurance. Defendants have deposed Ms. Denise Kimsey, a State Farm Insurance homeowners' insurance representative, referenced her as

Case 1:04-cv-01070-PSF-PAC

Document 68

Filed 07/06/2005

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a possible witness and elicited testimony from her at depositing that Plaintiffs' home would likely be rebuilt and paid for by State Farm Insurance Company if a claim were placed and a file opened. Pursuant to C.R.S. § 13-21-111.6, which states " ... except that the verdict shall not be reduced by the amount by which such person, his estate, or his personal representative has been or will be wholly or partially indemnified or compensated by a benefit paid as a result of a contract entered into and paid for or by or on behalf of such person. ..." Therefore, in application of C.R.S. § 13-21-111.6 and Fed. R. Evid. 401 and 411, the Plaintiffs assert that any evidence of or reference to their homeowners' insurance is irrelevant and inadmissible. Because of the Plaintiffs' advance purchase of the homeowners' insurance, Defendants should not receive a windfall when the Plaintiffs, by their own separate efforts, have protected themselves against possible losses. See Frost v. Schroeder 876 P.2d 126 (Colo. App. 1994) For reasons set forth in the Response to Partial Motion for Summary Judgment, the applicable arguments and authorities for which are hereby incorporated by this reference, Plaintiffs have not attempted to recover any damages through their homeowners insurance policy, however, if homeowners' insurance coverage were to be paid after application by Plaintiffs, based upon the foregoing statutory law, the existence of homeowners' insurance is irrelevant and inadmissible. Plaintiffs' homeowners' insurance is a contract entered into and paid for by the Plaintiffs and not to be allowed as a windfall to Defendants. This standard of exclusion for amounts received as a result of a contract entered into and paid by the Plaintiffs has also been affirmatively applied in Simon v. Coppola 876 P.2d 10 (Colo. App. 1995) and also to prejudgment settlements where percentage application(s) of fault were set forth by a jury. Smith v.

Case 1:04-cv-01070-PSF-PAC

Document 68

Filed 07/06/2005

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Zufelt 880 P.2d 1178 (Colo. 1994). The rule has also been utilized with favor in Colorado Federal Court, Orr v. Koch Supplies No. 90-F-1190 slip op. (D. Colo. 1991) and should be utilized herein to wholly block the testimony of Denise Kimsey. The foregoing, together with Fed. R. Evid 411, where the matter of insurance cannot even be raised to suggest that the Plaintiffs' have the ability to pay the claim with insurance, causes the testimony of Denise Kimsey to be inadmissible. Clearly a reference to or testimony by Denise Kimsey as a representative of State Farm Insurance Company is a plain reference to homeowners' insurance and cannot be raised. Her testimony is also irrelevant and improper to the merits of the tort action which involve the level of negligence and damages owed by the Defendants. [See Liber v. Flor 160 Colo. 7, 415 P. 2d 332, 339 (1966)] The mere the reference to homeowners' insurance is not allowed and likewise the testimony of Denise Kimsey, should not be allowed. WHEREFORE, on the basis of the foregoing facts and law the testimony of Denise Kimsey should be excluded and eliminated in all forms from this trial. Respectfully submitted this 1st day of July, 2005 by: MCDANIEL BATY MILLER AGRO WALES & ROBBINS LLC \s\ original signature on file Michael W. Baty, Esq. #14804 (Colo.) 1040 Main Ave. P.O. Box 1157 Durango, CO 81301 (970) 247-1113 PHILLIPS & GRAHAM \s\ original signature on file Randolph H. Phillips, Esq. #576575 (GA) 609 Pine Ave P.O. Box 2303 Albany, Georgia 31702 (229) 435-4452

Case 1:04-cv-01070-PSF-PAC

Document 68

Filed 07/06/2005

Page 4 of 4

CERTIFICATE OF SERVICE The undersigned certifies that on the 6th day of July, 2005, a true and correct copy of the foregoing Motion In Limine re: Testimony of Denise Kimsey was electronically filed with the Clerk of Court suing the CM/ECF system which will send notification of such filing to the following e-mail addresses and previously fax filed to opposing counsel on the 2nd day of July 2005 at approximately 2:30 A.M.. as follows: Mr. Brad Hardman, Esq. Mr. Ted Bills, Esq. Wittman & McCord fax#: 719/590-9899 UMB Bank Building 5825 Delmonico Drive, Suite 320 Colorado Springs, CO 80919 [email protected] \s\ original signature on file Michael W. Baty