Minden v. Allstate Property and Casualty Insurance Company

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 MICHAEL MINDEN and THERESA Case No.: 2:21-cv-00151-APG-BNW MINDEN, 4 Order on Allstate’s Motions in Limine Plaintiffs 5 [ECF Nos. 131, 132, 134, 135, 136, 141] v. 6 ALLSTATE PROPERTY AND CASUALTY 7 INSURANCE COMPANY,

8 Defendant

9 I. Motion in Limine to Preclude Per Diem Calculation of General Damages (ECF No. 131) 10 Defendant Allstate Property and Casualty Insurance Company moves to preclude 11 plaintiffs Michael Minden and Theresa Minden from asking the jury to award damages based on 12 a per diem amount or some other mathematical calculation for pain and suffering. Allstate 13 contends that by making a per diem argument, the plaintiffs would improperly make a small 14 daily amount of damages sound reasonable and capable of being determined with certainty, but 15 noneconomic damages are not capable of mathematical precision. Allstate also contends that 16 this type of argument results in astronomical damage awards when multiplied over time. 17 The plaintiffs respond that Allstate does not cite any controlling authority in support of its 18 motion. The plaintiffs assert that the Supreme Court of Nevada has allowed this type of 19 argument, as have federal courts, so long as the trial judge gives a cautionary instruction that it is 20 not evidence and is merely counsel’s thoughts on what a proper damages award should be. 21 The propriety of attorney argument during closing is a procedural question governed by 22 federal law. See, e.g., Showan v. Pressdee, 922 F.3d 1211, 1220 (11th Cir. 2019). Nothing in the 23 federal rules prohibits this type of argument. Federal courts generally allow it with cautionary 1 instructions that noneconomic damages cannot be reduced to a precise mathematical calculation 2 and a proposed measure of damages based on a unit-of-time rate is merely a form of argument 3 that the jury is free to reject in its deliberations.1 To the extent Nevada law informs the issue in 4 this diversity case, the Supreme Court of Nevada has reached a similar conclusion. See Johnson 5 v. Brown, 345 P.2d 754, 759 (Nev. 1959) (holding that whether to allow counsel to argue a

6 mathematical calculation for pain and suffering lies within the trial judge’s discretion but if 7 allowed, then the court should instruct the jury that “the suggestions of counsel are not to be 8 taken as evidence but are merely the thoughts of counsel as to what would be proper damages to 9 award for this item”). I have previously allowed counsel to argue for a specific amount of 10 11

1 See, e.g., Showan, 922 F.3d at 1220 (stating that the district court erred when it ruled that a 12 “unit-of-time argument was not allowable under the law” (internal quotation marks omitted)); Vanskike v. ACF Indus., Inc., 665 F.2d 188, 211 (8th Cir. 1981) (allowing unit-of-time 13 arguments but stating the “jury should be cautioned that references to per diem damages in closing arguments are not evidence, but merely a form of argument, and that pain and suffering 14 cannot be reduced to a precise arithmetic calculation”); Murphy v. Nat’l R. R. Passenger Corp., 547 F.2d 816, 818 (4th Cir. 1977) (allowing the argument but stating the trial judge “should 15 caution the jury that the dollar figures mentioned by counsel do not constitute evidence but merely represent argument which the jury may disregard in its deliberations”); Mileski v. Long 16 Island R. Co., 499 F.2d 1169, 1174 (2d Cir. 1974) (declining to prohibit the argument but stating the trial judge should “specifically caution the jury that the dollar figures advanced by counsel do 17 not constitute evidence but merely represent argument which the jury is free to disregard in its deliberations”); Waldron v. Hardwick, 406 F.2d 86, 89 (7th Cir. 1969) (leaving the matter to the 18 trial judge’s discretion and suggesting cautionary instructions); Baron Tube Co. v. Transp. Ins. Co., 365 F.2d 858, 865 (5th Cir. 1966) (allowing such argument where the trial judges “make[s] 19 it clear to the jury that the unit of time argument is merely a method of presenting contentions, and is not to be considered as evidence”). But see Rodriguez v. Senor Frog’s de la Isla, Inc., 642 20 F.3d 28, 37 & n.3 (1st Cir. 2011) (precluding the argument but acknowledging that almost all other circuits allow it); Waldorf v. Shuta, 896 F.2d 723, 744 (3d Cir. 1990) (holding that counsel 21 may not request any specific dollar amount for pain and suffering). The Ninth Circuit has not directly addressed the issue. However, in an unpublished case, it held that where the defendant 22 did not timely object, any error in not giving a more robust cautionary instruction beyond telling the jury that counsel’s arguments were not evidence and the jury must base its verdict on 23 evidence was harmless. Matos v. Chloe Z Fishing Co., No. 96-17278, 129 F.3d 126, 1997 WL 702919, at *1 (9th Cir. 1997). 1 noneconomic damages with cautionary language. Aidini v. Costco, 2:15-cv-00505-APG-GWF, 2 ECF No. 85 at 2 (D. Nev. April 10, 2017). 3 I follow the great weight of authority and allow the plaintiffs (and Allstate if it chooses) 4 to make unit-of-time arguments regarding noneconomic damages. However, I will instruct the 5 jury that attorney argument offering a calculation of noneconomic damages is not evidence, but

6 simply argument that the jury is free to accept or reject. I will also advise the jury that 7 noneconomic damages are not dictated by legal precedent or a mathematical formula, but rather 8 the jury must use its own estimates and reasoning to reach a figure appropriate to the specific 9 case. If the plaintiffs (or Allstate) intend to make this type of argument, then the parties must 10 confer and propose an instruction along with their other proposed jury instructions. I therefore 11 deny Allstate’s motion to preclude this argument. 12 II. Motion in Limine to Preclude “Mayhem” Commercials (ECF No. 132) 13 Allstate moves to preclude the plaintiffs from presenting to the jury Allstate’s 14 commercials or print ads that depict “Mayhem” as a human in a variety of scenarios. Allstate

15 contends its advertising is not relevant to the facts of this case under Federal Rule of Evidence 16 402 and is unfairly prejudicial under Rule 403. The plaintiffs respond that Allstate spends 17 millions of dollars advertising its business and telling customers that they are in good hands with 18 Allstate and Allstate will protect them from mayhem. The plaintiffs argue they should be able to 19 show these commercials because it goes to an insured’s expectations that Allstate will act in 20 good faith. 21 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than 22 it would be without the evidence; and (b) the fact is of consequence in determining the action.” 23 Fed. R. Evid. 401. Relevant evidence generally is admissible unless otherwise prohibited, while 1 irrelevant evidence is inadmissible. Fed. R. Evid. 402. I may exclude relevant evidence “if its 2 probative value is substantially outweighed by a danger of one or more of the following: unfair 3 prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 4 presenting cumulative evidence.” Fed. R. Evid. 403. 5 I grant Allstate’s motion because its commercials are irrelevant to the issues in this case.

6 Even if they had minimal relevance, that is substantially outweighed by the risk of unfair 7 prejudice, confusing the issues, and misleading the jury. The question in this case is not whether 8 Allstate generally protects against “mayhem,” or its insureds are generally “in good hands.” 9 Rather, the jury is tasked with determining whether Allstate breached the insurance contract and 10 engaged in bad faith when it denied or delayed payment under the particular facts and 11 circumstances of this case. See ECF No. 98 (summary judgment order). I therefore grant 12 Allstate’s motion and preclude the plaintiffs from presenting evidence of Allstate’s commercials 13 or print advertising. 14 III. Motion in Limine Regarding Allstate’s Claims Handling (ECF No. 134)

15 Allstate moves to preclude the plaintiffs from presenting evidence or arguing that 16 Allstate’s claims handling fell below the applicable standard of care because Allstate’s expert 17 opines that it did not, and the plaintiffs have no expert on this issue. The plaintiffs respond that 18 Allstate cites no law in support of its motion. They contend that courts do not require an expert 19 to establish insurer bad faith or improper claims handling practices. According to the plaintiffs, 20 they have sufficient other evidence of Allstate’s breach of contract and bad faith such that no 21 expert is required. 22 Allstate cites no authority for the proposition that an insured must have an expert to 23 establish a breach of contract or bad faith claim. The Supreme Court of Nevada has rejected the 1 proposition that an expert is required to prove bad faith. See Allstate Ins. Co. v. Miller, 212 P.3d 2 318, 334 n.5 (Nev. 2009) (en banc) (“Allstate also raises other issues, including whether Miller 3 was required to present an expert witness to meet his burden of proof . . . . We conclude that 4 each of these issues is without merit.”). Judges in this district and elsewhere have also held an 5 expert is not necessarily required to establish bad faith. See Tracey v. Am. Fam. Mut. Ins. Co.,

6 No. 2:09-cv-01257-GMN-PAL, 2010 WL 3724896, at *4 (D. Nev. Sept. 17, 2010) (gathering 7 cases). “When an insurer’s alleged breach of its duty of good faith and fair dealing toward its 8 insured involves facts and circumstances within the common knowledge or ordinary experience 9 of the average juror, the insured need not produce expert testimony to establish a bad faith 10 claim.” Id. “Only if the court finds that [the] alleged breach involves unusually complex or 11 esoteric matters beyond [the] ken of the average juror, should the court require the insured to 12 produce expert testimony to establish [a] prima facie case for bad faith.” Id. 13 Allstate has not pointed to any particular complexity or explained how the alleged 14 breaches in this case are outside the average juror’s understanding. The plaintiffs have presented

15 sufficient evidence of bad faith for this matter to proceed to trial. See ECF No. 98 at 4-5. I 16 therefore deny Allstate’s motion. 17 IV. Motion in Limine Regarding Allstate Hiring J&J Contracting (ECF No. 135) 18 Allstate moves to preclude any evidence or argument that it retained Daniel Merritt of 19 J&J Contracting because, although Allstate initially admitted that it hired J&J, Magistrate Judge 20 Weksler granted Allstate’s motion to amend that response. Allstate contends that at his 21 deposition, Merritt testified that Michael Minden, not Allstate, hired J&J. 22 The plaintiffs respond that although Judge Weksler allowed Allstate to amend its 23 admissions, she noted there was “shifting evidence” on the issue of who hired J&J and she 1 agreed that the plaintiffs’ counsel could question Allstate witnesses on Allstate’s initial 2 admission that it had hired J&J. The plaintiffs contend that Merritt later corrected his testimony 3 and stated he was not sure who had hired J&J. The plaintiffs thus assert that this is a jury 4 question. 5 Although Allstate initially admitted it hired J&J, Judge Weksler granted Allstate’s motion

6 to amend that admission. ECF No. 95. In doing so, Judge Weksler noted that because J&J was 7 the first to assert that wind damaged the Mindens’ roof and so would be covered by Allstate’s 8 policy, who retained J&J and for what purpose “is important to the merits of the case.” Id. at 2. 9 Judge Weksler noted that the parties “acknowledge the shifting evidence” on this point. Id. And 10 she concluded the plaintiffs would not be prejudiced by allowing amendment to the admission 11 because the plaintiffs “admitted that they would only be prejudiced if they were not allowed to 12 question witnesses about this shift in evidence at trial.” Id. 13 Merritt stated at his deposition that the initial call was made by Michael Minden. ECF 14 No. 162 at 83, 87. But later in his deposition, Merritt equivocated and stated that he was not

15 certain if Allstate or Minden called the office first. Id. at 107-10. Allstate’s claims notes suggest 16 that its claims adjuster may have first called J&J. ECF No. 163 at 53. 17 The evidence about who retained Merritt and J&J is unclear, so this is a question for the 18 jury to resolve. Moreover, part of the reason Judge Weksler allowed Allstate to amend its 19 admission was a lack of prejudice to the plaintiffs if they could question witnesses at trial about 20 the shifting evidence on this issue. To preclude the plaintiffs from being allowed to do so now 21 would undermine Judge Weksler’s reasoning and unfairly prejudice the plaintiffs. I therefore 22 deny Allstate’s motion. 23 / / / / 1 V. Motion in Limine to Preclude Reptile Theory Arguments (ECF No. 136) 2 Allstate moves to preclude the plaintiffs from making arguments “designed to play on the 3 jurors’ fears and sympathies, also known as ‘Reptile Theory’ tactics.” ECF No. 136 at 2. 4 Allstate contends these tactics are an end run around “Golden Rule” type arguments. Id. at 2-3. 5 Allstate contends that examples of this impermissible argument would be “asking the jury to

6 consider what standard of conduct society should expect from underinsured motorist insurance 7 carriers as a whole and how society expects underinsured motorist claimants to be treated by 8 their insurer.” Id. at 6. It also contends the plaintiffs should not be allowed to ask jurors to 9 imagine how they would feel if their insurer refused to pay for expenses or stating that if Allstate 10 can get away with its conduct in this case, “there is no telling who will be next.” Id. at 7. Allstate 11 also gives various examples of questions that might be asked during voir dire and closing 12 argument that supposedly invoke the reptile theory. Id. at 7-9. Allstate seeks to exclude this type 13 of argument as irrelevant and unfairly prejudicial. Allstate acknowledges that I have previously 14 denied a reptile theory motion in limine in Aidini, but it contends that it has sufficiently

15 identified the types of arguments that it believes are improper. 16 The plaintiffs respond that courts routinely reject this type of motion because the 17 arguments about reptile theory are vague, overbroad, and because the motion does not specify 18 what evidence or argument would be objectionable. The plaintiffs also argue I have previously 19 denied similar motions in limine and I should do the same here. 20 I have previously denied similar motions as too vague and broad. See Rosas v. GEICO 21 Cas. Co., No. 2:18-cv-01200-APG-NJK, 2022 WL 2439575, at *1 (D. Nev. Jan. 26, 2022); 22 Aidini v. Costco Wholesale Corp., No. 2:15-cv-00505-APG-GWF, 2017 WL 10775082, at *1 (D. 23 Nev. Apr. 12, 2017). Although Allstate gives examples of the types of arguments it seeks to 1 preclude, as I stated in Rosas, “[t]he universe of objectionable phrasings is expansive, and I will 2 not now endeavor to decide matters that require the benefit of verbatim analysis and context to 3 be properly considered. . . . Trial objections are the best-suited means by which [Allstate] may 4 address its concerns, and at trial I will enforce the Federal Rules of Evidence, as I must.” 2022 5 WL 2439575, at *1. Consequently, I deny Allstate’s motion without prejudice to it objecting to

6 particular arguments or statements at trial. 7 VI. Motion in Limine to Preclude Unsupported Categories of Damages (ECF No. 141) 8 Allstate moves to exclude two categories of damages that it contends are unsupported. 9 First, it argues that the plaintiffs cannot seek both damages under the policy and the return of 10 premiums they paid for the policy. The plaintiffs agree. ECF No. 157 at 3-4 n.1. I therefore 11 grant this portion of Allstate’s motion. 12 Second, Allstate argues that the plaintiffs cannot present evidence of a diminution in 13 value of their home or that they lost profits because they were unable to sell their home. Allstate 14 contends that although a property owner generally can testify to a property’s value, the plaintiffs

15 have not provided any methodology for how they arrived at their figures. Allstate contends that 16 to the extent this evidence is based on matters not within a layperson’s knowledge, an expert is 17 required. 18 The plaintiffs respond that under Nevada law, homeowners can testify about the value of 19 their home and the diminution of such value. The plaintiffs assert that they have produced 20 documents and will testify about the research they conducted to support their valuation, and 21 Allstate can cross-examine them on their testimony. 22 “A party to a lawsuit may testify as to the value of her personal or real property when that 23 value is an issue in the case, and expert testimony is not required.” Dugan v. Gotsopoulos, 22 1 P.3d 205, 207 (Nev. 2001); see also Stephans v. State, 262 P.3d 727, 731 (Nev. 2011); Lucini- 2 Parish Ins., Inc. v. Buck, 836 P.2d 627, 630 (Nev. 1992). The theory behind this rule is that by 3 virtue of ownership, the property owner “is presumed to have special knowledge of the property 4 and may testify as to its value.” City of Elko v. Zillich, 683 P.2d 5, 8 (Nev. 1984). That may 5 include testimony about a decrease in value caused by conditions on the property. See Laurrance

6 v. Deutsche Bank Nat. Tr. Co. ex rel. Am. Home Mortg. Assets Tr. 2006-5, No. 3:13-cv-0694- 7 LRH-WGC, 2015 WL 5521879, at *1-3 (D. Nev. Sept. 18, 2015) (permitting a property owner to 8 testify about the decrease in his home value after he discovered previously undisclosed high 9 pressure gas transmission pipelines beneath his property). “The question of the landowner’s 10 competency to form an opinion of the [property’s] value may be exposed on cross examination 11 and affects the weight to be given to the testimony, not its admissibility.” City of Elko, 683 P.2d 12 at 8. The jury thus “may consider this testimony for its weight in conjunction with other 13 evidence of value.” Dugan, 22 P.3d at 207. 14 Because a property owner may testify as to his or her property’s value, including alleged

15 diminution in value, I deny Allstate’s motion. Allstate can cross-examine the plaintiffs regarding 16 their valuation and how the plaintiffs arrived at that number. The jury may consider that 17 testimony along with all the other evidence and is free to accept or reject it. 18 VII. Conclusion 19 I THEREFORE ORDER that defendant Allstate Property and Casualty Insurance 20 Company’s motion in limine to preclude per diem calculation of general damages (ECF No. 21 131) is DENIED. 22 I FURTHER ORDER that defendant Allstate Property and Casualty Insurance 23 Company’s motion in limine to preclude “mayhem” commercials (ECF No. 132) is GRANTED. ] I FURTHER ORDER that defendant Allstate Property and Casualty Insurance 2|| Company’s motion in limine regarding Allstate’s claims handling (ECF No. 134) is DENIED. 3 I FURTHER ORDER that defendant Allstate Property and Casualty Insurance Company’s motion in limine regarding Allstate hiring J&J Contracting (ECF No. 135) is DENIED. 6 I FURTHER ORDER that defendant Allstate Property and Casualty Insurance 7\| Company’s motion in limine to preclude reptile theory arguments (ECF No. 136) is DENIED. 8 I FURTHER ORDER that defendant Allstate Property and Casualty Insurance Company’s motion in limine to preclude unsupported categories of damages (ECF No. 141) is 10| GRANTED in part. The motion is granted as to the plaintiffs’ request for reimbursement of the premiums they paid for the policy. The motion is denied as to the plaintiffs’ testimony about their valuation of their property. 13 DATED this Sth day of June, 2024. 14 1S ANDREW P.GORDON. 16 UNITED STATES DISTRICT JUDGE

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