--- title: "Law And Legal Expert Was Allowed to Opine on Claims Handling Customs" meta: "og:description": "The law and legal expert was allowed to opine on claims handling customs because of his undisputed expertise and experience in the insurance industry" "og:title": "Law And Legal Expert Was Allowed to Opine on Claims Handling Customs " author: "Shuva Guha Thakurta" description: "The law and legal expert was allowed to opine on claims handling customs because of his undisputed expertise and experience in the insurance industry" --- # Law And Legal Expert Was Allowed to Opine on Claims Handling Customs Posted on July 27, 2026 by Shuva Guha Thakurta Plaintiff Evanston Insurance Company filed this insurance-coverage action seeking a declaration that it owed no duty to defend or indemnify Defendants Enterprise Plan B, Inc., Lance Brown, and Diane Stember Richards in connection with an underlying lawsuit filed against Enterprise, Brown, and Richards by Defendants Alex and Eugenia Serrano Borja. The Borjas counterclaimed, seeking a declaration that Evanston had a duty to both defend and indemnify. Evanston filed motions to exclude the testimony of two of the Borjas's experts, [Timothy L. Walker](https://expertwitnessprofiler.com/expert-witness/Timothy-Walker/1530458) and Dr. [John C. Gardiner](https://expertwitnessprofiler.com/expert-witness/John-Gardiner/1531065). # **Law** And Legal Expert Witness [Timothy Lee Walker](https://expertwitnessprofiler.com/expert-witness/Timothy-Walker/1530458) is an actively practicing civil attorney specializing in the counseling, advising and representation of insurance companies and those that they insure for more than 35 years. [Discover more cases with Timothy Walker as an expert witness by ordering his comprehensive Expert Witness Profile report](https://expertwitnessprofiler.com/order/add?eId=1530458&pId=3). # **Biomechanics Expert Witness** [John Carter Gardiner](https://expertwitnessprofiler.com/expert-witness/John-Gardiner/1531065), PhD PE holds a BS degree in Mechanical Engineering from the University of Minnesota and a PhD in Bioengineering from the University of Utah. He is a Professional Engineer, licensed as a Professional Mechanical Engineer by the State of California. Gardiner is a member of the Orthopaedic Research Society, the American Society of Biomechanics, the American Society of Mechanical Engineers, and the Society of Automotive Engineers. [Want to know more about the challenges John Gardiner has faced? Get the full details with our Challenge Study report](https://expertwitnessprofiler.com/order/add?eId=1531065&pId=3). # **Discussion by the Court** ## **I. Evanston's motion to exclude the testimony of Timothy Walker is granted in part and denied in part** Evanston sought to strike the expert report and testimony of Timothy Walker, the Borjas' claims-handling expert. Walker's report and testimony concern the reasonableness of Evanston's conduct in investigating the insured's claim, both when initially denying a defense and then when later refusing the Borjas' policy-limits settlement offer. First, Evanston contended that Walker's opinions are unlikely to "help the trier of fact to understand the evidence or to determine a fact in issue." In other words, Evanston argued that Walker's testimony is not relevant to the question whether Evanston acted reasonably in investigating the insureds' claim, denying a defense, and refusing to settle. The core of Walker's testimony is his opinion that Evanston's conduct departed from customs and practice in the insurance industry. Evanston concedes both that this is the relevant inquiry for the purposes of the Borjas' bad-faith claims and that Walker is qualified to opine as an expert on standard claims-handling practices. While Walker's report briefly mentions those regulations in passing, the bulk of his expert report and deposition testimony concerning customs and practices is rooted in California case law, California jury instructions, and his own experience. Evanston argues that his opinions are improper and irrelevant because they do not "relate to Evanston's compliance with or deviation from the California Fair Claims Settlement Practices Regulations." Evanston cited only two cases for the proposition that an expert's testimony as to claimshandling custom and practice must be based solely on the Fair Claims Settlement Practices Regulations. These cases merely suggest that a claims-handling expert may refer to the Fair Settlement Claims Practice Regulations, without suggesting that an expert may only or must refer to those regulations. Evanston makes no effort to explain its assertion that such regulations are the only relevant source of industry customs and practices concerning claims handling. The Court therefore concluded that Walker's opinions concerning claims-handling customs and practices—based on his undisputed expertise and experience in the insurance industry, as well as case law and jury instructions—are reliable, relevant, and likely to assist the jury. Second, Evanston argued that Walker's expert opinion included improper legal conclusions that (1) an insurer must "meet a heavy burden" to establish that no potential for coverage exists; (2) insurance-policy exclusions are construed against insurers; (3) insurance policies in California impose an implied obligation of good faith and fair dealing; (4) insurers have a legal duty to diligently search for and consider evidence to support coverage; and (5) an insurer is responsible for an entire judgment if it unreasonably rejects a policy-limits settlement offer. The Court agreed. He simply articulates high-level legal principles of insurer liability and insurance-policy interpretation without drawing a clear connection to specific industry norms and practices. While the Borjas attempt to explain such connections in their opposition to Evanston's motion, such "_post hoc_ arguments cannot fill in the gaps for Walker's deficient expert report." This does not mean, however, that Walker is totally precluded from opining on the industry customs and practices relevant to the Borjas' claim that Evanston acted in bad faith when it denied a defense and rejected their policy-limits settlement offer. The Court strikes and excludes only the statements of legal principles described above. To the extent Walker's expert report and deposition testimony discuss the norms arising from those legal principles, or from any other source, he may testify as to those norms and Evanston's departure therefrom at trial. For example, Walker's opinion that the short duration of Evanston's investigation of the insured's claim for a defense, based on his industry experience, is not barred. Third, Evanston argued that certain of Walker's statements in his expert report and deposition testimony improperly opine on ultimate issues of law. The Court agreed. Here, Walker expressly stated in his deposition testimony that Evanston's conduct was "the epitome of bad faith," and his report opines that Evanston's investigation was "biased with a mindset to deny coverage," which is simply another way of stating that Evanston acted in bad faith. The Court granted Evanston's motion to strike and exclude these statements. ## **II. Evanston's motion to exclude the testimony of John Gardiner is granted** Evanston also sought to strike the expert report and testimony of Dr. John Gardiner, the Borjas' biomechanical expert. The Borjas offered Gardiner to rebut the testimony of Evanston's own expert who opined that Alex Borja's injuries from the accident giving rise to the underlying judgment could have been mitigated by his installation and use of a three-point seatbelt in his 1960 Chevrolet Impala. The Borjas suggested in their opposition that Gardiner's opinions could not be properly offered at trial in the event the Court granted their summary-judgment motion. Because the Court has granted the Borjas' motion for summary judgment as to Evanston's fraud-based defenses, Evanston may not attack the underlying judgment. Because Gardiner's testimony no longer bears on any issues that will be presented to the jury, the Court granted Evanston's motion to strike Gardiner's report and to exclude his testimony. # **Held** - The Court granted in part and denied in part Evanston's motion to strike the expert report and exclude the testimony of Timothy Walker. - The Court granted Evanston's motion to strike the expert report and exclude the testimony of Dr. John Gardiner. # **Key Takeaway** So while an expert may "testify to the issue of bad faith" by opining that an insurer "deviated from industry standards," an expert cannot opine that an insurer "actually acted in bad faith." Nor can an expert skirt that prohibition by offering opinions that are nothing more than proxies for the ultimate issue of bad faith, such as by stating that an expert acted unreasonably. # **Case Details:** | Case Caption: | Evanston Insurance Company V. Enterprise Plan B, Inc. | | --- | --- | | Docket Number: | 5:24cv3329 | | Court Name: | United States District Court, California Northern | | Order Date: | July 06, 2026 | --- **About the Author:  **Shuva Guha Thakurta ![user](https://media.jurimatic.com/profile_images/1736141702378.webp) Shuva Guha Thakurta has four years of experience in legal research. 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