Insurance Expert Witness’ Testimony Limited Because it Consists of the Interpretation of Policy Language
Posted on October 22, 2024 by Expert Witness Profiler
Plaintiff American Empire Surplus Lines Insurance Company (“AESLIC” or “Plaintiff”) issued to J.R. a commercial excess liability insurance policy, which included a premium charge to be computed as a percentage of J.R.’s gross receipts during the policy period. Plaintiff assigned an advanced premium to the Policy based on J.R.’s estimate of its gross receipts during the policy period, which was subject to adjustment if a post-policy audit reflected that J.R.’s actual gross receipts exceeded its initial estimate.
The post-policy audit concluded that J.R.’s actual gross receipts exceeded its initial estimate, and thus J.R. owed an additional premium in the amount of $487,386.00. Following non-payment of this additional premium, AESLIC brought this action on June 13, 2023, seeking to recover payment of said additional premium.
After Arthur R. Nelson issued his expert report in support of J.R., Thomas M. Trezise issued his rebuttal report in support of AESLIC.
Based on his review of the audit and the Nelson Report, Trezise offered the following four opinions:
1. The Policy was a surplus lines policy and, as such, not regulated by the State of New Jersey. [AESLIC] had full discretion to establish the forms and terms of the Policy as well as the rules and rates by which the premium was determined.
2. The terms of the Policy solely define the relationship between [AESLIC] and J.R…. Standards and practices, whether of admitted or surplus lines insurers, have no application.
3. The Policy provided coverage for significant risks. The coverage was not illusory.
4. J.R. and Nelson cannot challenge the underwriting process of [AESLIC].
Motion to Exclude
While addressing a number of Nelson’s premises and assumptions, Trezise maintained that “rate [at issue] was unmistakably and clearly stated and anyone familiar with basic arithmetic can understand how it determined the premium. The Policy has no flaw as to the definition of the [r]ates and is, therefore, enforceable.”
On August 16, 2024, J.R. filed its Daubert motion to exclude Trezise’s expert opinion.
Insurance Expert Witness
Thomas M. Trezise graduated cum laude from Western Maryland College in 1975 with a Bachelor of Arts in American Studies and Political Science. He then obtained his Juris Doctor degree from Washington & Lee University in 1978. In 2009, Trezise was licensed as an adjuster in the State of Florida.
From 1978 to 1992, Trezise practiced as a trial attorney, where his experience included commercial, and property & casualty and life insurance coverage and bad faith litigation and his expertise included commercial litigation, premises and premises security liability, and insurance coverage. Trezise held various positions in the insurance industry for over 30 years and, during that time, he supervised individuals who conducted premium audits. He also was involved in litigation where there was a dispute “over the premium owed or whether additional amounts were owed under the policies.” The policies in that litigation were “structured similar to the policies in this case,” because there was “an [upfront] premium involved and then a premium due at the end.”
Additionally, Trezise’s self-identified expertise includes “the management of primary and excess property and casualty liability, property, auto physical damage, and worker’s compensation business operations, claims, coverage, and litigation, as well as reinsurance and surplus lines issues in those lines.” He also has assisted underwriting departments in the development, drafting and approval of policy forms, underwriting classifications, rate filings and risk management services.
Discussion by the Court
Qualifications
Defendant argued that Trezise is not qualified as an expert because he lacks relevant experience in conducting post policy premium audits, especially in connection with surplus lines policies.
The Court found that Trezise is qualified as an expert. The Court added that Trezise possesses “specialized knowledge” in insurance that will more likely than not “help the trier of fact to understand the evidence or to determine a fact.”
In addition to his experience of over 30 years in the insurance industry and related experience involving insurance coverage as a trial attorney, the Court added that he has “experiential qualifications in a general field closely related to the subject matter in question.” Considering the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony,” Trezise is qualified as an expert to provide an opinion (but not as to legal conclusions).
Existence Of Sufficient Facts Or Data And Reliable Principles And Methods
Defendant argued that Trezise’s opinions are not well-grounded, are not reliable, are purely speculative, and lack analysis, because Trezise has no experience with post-policy premium audits.
The Court found that Trezise’s opinions, as permitted herein, are based upon sufficient facts and reliable principles and methods drawn from his background, including relevant experience. Trezise has decades of experience in the insurance industry, during which he was exposed to the surplus lines market. Trezise’s opinions regarding industry practice, including his opinions about the purpose of surplus lines policies and the general existence of standards and practices in the surplus lines market, is based upon that experience. After all, Trezise explicitly tied his conclusion regarding industry practice to his specialized experience.
Defendant argued that Trezise’s experience, which does not include participation in post-policy premium audits, does not align with the issues here. The Court held that such a “quibble” goes to the “weight and credibility,” and not the admissibility of Trezise’s opinion.
Helpful To The Trier Of Fact
The Court found that portions of the Trezise Report and related deposition testimony improperly reach legal conclusions. For example, the Trezise Report includes interpretation of policy language, such as the discussion of whether a professional liability exclusion clause in the Policy limits its coverage for New York Labor Law claims.
The Court held that such legal conclusions are not helpful to the trier of fact, because an expert’s opinion on questions of law is inadmissible even when an expert—like Trezise, who is a former practicing attorney—has legal qualifications.
Held
The Court granted in part and denied in part the Defendant’s Daubert motion to exclude Trezise’s expert opinion.
Key Takeaways:
- Trezise explicitly tied his conclusion regarding industry practice to his specialized experience. Trezise’s opinions regarding industry practice, including his opinions about the purpose of surplus lines policies and the general existence of standards and practices in the surplus lines market, is based upon his years of experience in the insurance industry and his exposure to the surplus lines market.
- Trezise may provide testimony about the insurance industry and audits, and he may provide his opinion regarding premiums due under the Policy based upon a hypothetical set of facts. However, Trezise may not testify or provide his opinion about his interpretation of the Policy, and may not testify about any other legal conclusions.
Case Details:
| Case Caption: | American Empire Surplus Lines Insurance Company V. J.R. Contracting & Environmental Consulting, Inc. |
| Docket Number: | 1:23cv4942 |
| Court: | United States District Court, New York Southern |
| Order Date: | October 21, 2024 |
