Insurance Law Expert Witness’ Testimony Does Not Survive the Rule 37 Challenge
Posted on February 17, 2025 by Expert Witness Profiler
A fire took place overnight at Tiffany Keen and Trevor Wogrin’s newly-purchased residence at 45100 County Road 1 in Parker (the “Home”), on June 5-6, 2022 (the “Fire”), causing damage. The Home was insured by a homeowner’s insurance policy issued by Allstate (the “Policy”). The Insureds submitted a claim to Allstate on June 6, 2022 for the payment of covered benefits under the Policy (the “Claim”).
Allstate refused to pay Dwelling benefits under the Policy. Almost ten (10) months after the Claim was submitted, Allstate filed this action against the Insureds seeking a declaration that the intentional acts exclusion applies to the Claim to bar coverage.
Defendants designated an insurance industry expert in support of their counterclaims for breach of insurance contract and bad faith. However, Allstate did not designate an affirmative insurance industry standards expert; instead, it designated its industry standards expert, Keith Olivera as a rebuttal expert.
To begin with, Defendants sought to strike Olivera on the ground that he was not a proper rebuttal expert. Alternatively, they claimed that he was unqualified to offer certain opinions asserted in his expert report and sought to limit other aspects of his testimony as unnecessary, irrelevant, confusing, or usurping the Court’s prerogative to instruct the jury on the law.
Insurance Law Expert Witness
Keith R. Olivera has been an attorney practicing in the field of insurance law for 30 years. Much of his practice involves advising insurers on claim handling practices and claims decisions.
He advises insurers on claim handling decisions involving both first- and third-party claims. Moreover, he has represented or assisted insurers in hundreds of cases or claims where the insurer has been alleged to have engaged in unreasonable claim handling.
Discussion by the Court
As per Fed. R. Civ. P. 26(a)(2)(D)(ii), a rebuttal expert opinion is one “intended solely to contradict or rebut evidence on the same subject matter identified by another party.”
The Court found that, superficially, this is what Olivera’s opinion appeared to do. In other words, Olivera contradicted the opinions of the Defendants’ industry standards expert witness, Douglas Meier, who asserted that Allstate’s handling of the Defendants’ insurance claim was unreasonable.
However, where the subject matter of the expert’s testimony concerns a matter the designating party knew or should have known would be part of its opponent’s case-in-chief, that expert is an affirmative expert.
To prove their substantive claim, Defendants perforce will be required to show Allstate “acted unreasonably and with knowledge of or reckless disregard for the fact that no reasonable basis existed for denying [Defendants’] claim.” Accordingly, Allstate absolutely should have predicted Defendants would offer an industry standards expert. They could not lay behind the log and only designate their own industry standards expert in rebuttal. Accordingly, the Court held that Olivera is not a proper rebuttal witness.
Under Rule 37, a party is required to show that the violation of the discovery obligations was substantially justified or harmless.
Allstate has failed to even acknowledge Rule 37 standards, must less attempt to show how they might be satisfied in this case.
Held
The Court granted the Defendants/Counterclaim Plaintiff’s motion to strike or limit the opinions and testimony of Plaintiff’s retained insurance law expert witness, Keith Olivera.
Key Takeaway
A rebuttal expert addresses “new unforeseen facts” that emerge in the opposing side’s case. Basically, Allstate tried to present Olivera as a rebuttal expert to counter the Defendants’ expert testimony about insurance industry standards. However, where the subject matter of the expert’s testimony concerns a matter the designating party knew or should have known would be part of its opponent’s case-in-chief, that expert is an affirmative expert.
When given the chance to justify the violation of its discovery obligations under Rule 37(c)(1), Allstate failed to address any of the required factors for showing their violation was either substantially justified or harmless. Allowing Olivera to testify would have prejudiced Defendants and disrupted the trial. This failure further cemented the Court’s decision to strike his opinions and bar him from testifying.
Case Details:
| Case caption: | Allstate Vehicle And Property Insurance Company V. Wogrin Et Al |
| Docket Number: | 1:23cv803 |
| Court: | United States District Court for the District of Colorado |
| Date: | December 23, 2024 |
