Virginia Lawyers Weekly

In this dispute over insurance coverage for flood damage to plaintiff golf course, a Richmond U.S. District Court excludes expert witnesses proffered by both sides – two property loss adjusters proffered by defendant carrier and a lawyer proffered by plaintiff golf course – because their testimony would attempt to interpret the contract language of the policy at issue.

Plaintiff golf course has proffered testimony from Thomas Veitch, Esq. as an expert witness at trial on insurance coverage and claims adjusting, and that his testimony will be offered to explain how the policy operates. This proposed testimony, which seeks to interpret the challenged provisions of the policy at issue, is improper under the established application of Fed. R. Evid. 702. The defense motion to exclude the expert testimony is granted.

Plaintiff also challenges the proposed testimony of two of defendant carrier’s expert witnesses on the grounds that both proposed experts have insufficient training/experience to qualify as experts under Rule 702, and their “proposed opinions are not the product of reliable principles and methods.”

It appears both the proffered experts, Jakubowski and Corso, can qualify as experts in their respective disciplines. Since 1977, Jakubowski has been active in adjusting property losses under insurance contracts, and he also has significant technical expertise in civil engineering and construction. Likewise, Corso has over 30 years of experience in adjustment of property losses and in the application of the terms of insurance contracts to property damage claims.

Therefore, by virtue of both their training and experience in the insurance field, both witnesses are qualified to opine on the relevant issues in this case.

However, both Jakubowski and Corso demonstrate their testimony suffers from the same infirmity as the proposed testimony of Veitch. Namely, the proposed testimony attempts to interpret the language of the insurance policy at issue. Therefore, the court grants plaintiff’s motion in limine to exclude the testimony of the two property loss adjusters.

The carrier also objects to proposed testimony of witness Bielecki regarding the potential impact to the golf course of having no irrigation water during the month of September 2006.

Any testimony by Bielecki under the Extra Expense subsection of the ELITEPAC policy provision is only conditionally relevant and is subject to the satisfaction of these requirements. Whether Bielecki’s testimony is admissible will depend on whether a factual predicate is laid at trial. But the grounds asserted in the carrier’s present motion are without merit and the motion in limine is denied.

Piankatank River Golf Club Inc. v. Selective Way Ins. Co. (Payne, J.) No. 3:08cv606, May 11, 2008; USDC at Richmond, Va. VLW 009-3-270, 18 pp.

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