United States District Court, D. South Carolina, Florence Division
UFP Eastern Division, Inc., f/k/a Universal Forest Products Eastern Division, Inc., Plaintiff,
Selective Insurance Company of South Carolina, Defendant.
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge
matter is before the Court on Plaintiff UFP Eastern Division,
Inc.'s motion in limine and motion to strike, and
Defendant Selective Insurance Company of South Carolina's
motion in limine. For the reasons set forth below, the Court
grants in part and denies in part Selective's motion in
limine, denies as moot UFP's motion in limine, and grants
in part and denies in part UFP's motion to strike.
Michigan corporation, was a framing contractor to Beazer
Homes for the development of 59 single- and multi-story
residential buildings in Horry County, South Carolina (the
"Park West" project). UFP used several
subcontractors on Park West, including VF Builders, which
performed the framing scope of work on 13 of the 59 buildings
and which was insured by Defendant Selective and two other
insurers, Nationwide Mutual and Frankenmuth Mutual. UFP
required VF Builders to include UFP as an additional insured
on its commercial general liability insurance policy. (Dkt.
No. 34-2 § 3.5.)
the completion of Park West, the Park West Horizontal
Property Regime and Park West Homeowners' Association of
Myrtle Beach, Inc. (the "Owners") claimed that
damaging water intrusion into the buildings had occurred and
that the framing scope of work contributed to that water
intrusion. The Owners filed suit against Beazer on January
31, 2013, Beazer in turn filed a third-party complaint
against its subcontractors, including UFP, and UFP in turn
asserted claims against its subcontractors, including VF
Builders (the "Underlying Litigation").
April 17, 2015, UFP filed the present action in state court
against its three insurers. (Dkt. No. 1-1 at 1.) UFP asserts
two causes of action. The first cause of action seeks both a
declaratory judgment regarding Selective's duty of
defense in the underlying litigation and compensatory damages
for Selective's alleged breach of that duty of defense.
The second cause of action alleges that Selective failed to
process UFP's claims in good faith. On June 23, 2015-
after the complaint in this action was filed but before it
was served-a settlement was reached in the Underlying
Litigation. VF Builder's three insurers paid $230, 000 in
settlement to UFP; Selective contributed $120, 000 of that
amount. (Dkt. No. 72-1 at 4.) The settlement was allocated as
$41, 089 for construction defects and $188, 911 for
attorney's fees. (Id. at 7.) UFP released
Frankenmuth from all possible claims, but specifically
excluded from the settlement were UFP's claims to
insurance benefits, including both defense and
indemnification, under commercial general liability policies
issued by Selective or Nationwide to VF Builders, and
UFP's bad faith claims against Selective or Nationwide.
(Id. at 5-7.) Also excluded were the insurers'
defenses against those claims. Those excluded issues are the
subject matter of the present litigation. The settlement
agreement, however, does provide UFP's insurers an offset
of $188, 911 in this litigation. (Id. at 7.)
action originally named all three insurers-Selective,
Nationwide, and Frankenmuth-as Defendants. (Dkt. No. 1-1).
Frankenmuth was dismissed on June 29, 2015, shortly after the
settlement agreement and before this action was removed from
state court. (Dkt. Nos. 1-2 at 1; Dkt. No. 1-3 at 1 (removal
on July 16, 2015).) Nationwide was dismissed on February 20,
2016, leaving Selective as the sole Defendant. (Dkt. No. 28.)
After the complaint was amended to name the proper Selective
legal entity, both parties filed renewed motions for summary
judgment, which were denied on February 13, 2017. This case
is scheduled for jury trial beginning April 18, 2017. Both
parties have filed motions in limine, and UFP has filed a
motion to strike Robert Gagnon as a witness.
not specifically provided for in the Federal Rules of
Evidence, motions in limine "ha[ve] evolved under the
federal courts' inherent authority to manage
trials." United States v. Verges, Crim. No.
1:13-222, 2014 WL 559573, at *2 (E.D. Va. Feb. 12, 2014).
"The purpose of a motion in limine is to allow a court
to rule on evidentiary issues in advance of trial in order to
avoid delay, ensure an even-handed and expeditious trial, and
focus the issues the jury will consider." Id.
"Questions of trial management are quintessentially the
province of the district courts." United States v.
Smith, 452 F.3d 323, 332 (4th Cir. 2006); see also
United States v. McBride, 676 F.3d 385, 403 (4th Cir.
2012) ("[A]ssessing [whether evidence is] relevan[t] is
at the heart of the district court's trial management
function."). A district court therefore has "broad
discretion" in deciding a motion in limine. Kauffman
v. Park Place Hosp. Grp,, 46S F.App'x 220, 222 (4th
Cir. 2012). Nonetheless, a motion in limine "should be
granted only when the evidence is clearly inadmissible on all
potential grounds." Verges, 2014 WL 559573, at
Defendant's motion in limine
moves to bar expert opinion testimony from UFP witnesses
Jason Gregorie and Kelvin Causey, including any opinion
testimony about the cause of damages observed in buildings on
which VF Builders worked or the repair costs for any
consequential damages arising from VF Builder's work.
(Dkt. No, 83.) The bases of Selective's motion are 1)
neither witness was identified as an expert witness, and 2)
Mr. Gregorie, a professional engineer who was an expert
witness in the Underlying Litigation but is a fact witness in
this case, testified in his deposition that he "ha[s]
personal knowledge as to the [Park West] facility as a whole,
but not as to the individual buildings or specifics of
individual buildings." (Id. at 3.)
Mr. Gregorie, UFP argues that he worked with the Owners and
with Beazer Homes to develop the scope of repair for Park
West and that he has personal knowledge about the property
damage at Park West and the scope of repair costs. (Dkt No.
91 at 2.) In reply to that, Selective argues that a lay
witness is prohibited from relying on his own professional
experience or on the reports or analyses of other persons
with specialized knowledge and information. (Dkt. No. 95 at 2
(citing James River Ins. Co. v. Rapid Funding, LLC,
65 F.3d 1207, 1214 (10th Cir. 2011).)
argument is sound but overreaching. Mr. Gregorie may testify
from his personal knowledge about Park West, including the
damages he observed and the repairs that were deemed
necessary, to the extent his "inferences do not require
any specialized knowledge and could be reached by any
ordinary person." James River Ins., 658 F.3d at
1214. That he is identified as lay witness and not an expert
certainly limits the potential scope of his testimony, but
the Court does not find that specialized knowledge is
required in order to make any personal observations of
damages in ...