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Boardwalk Apartments, L.C. v. State Auto Property and Casualty Insurance Co.

United States District Court, D. Kansas

June 13, 2014

BOARDWALK APARTMENTS, L.C., Plaintiff,
v.
STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This is an insurance coverage action arising out of a 2005 fire at Boardwalk Apartments, L.C.'s ("Boardwalk") apartment complex in Lawrence, Kansas. Boardwalk was insured under a commercial property insurance policy issued by State Auto Property and Casualty Insurance Company ("State Auto"). The remaining claims are set for jury trial on June 24, 2014. The parties have filed several motions in limine to exclude certain categories of evidence at trial, which the Court heard on June 10, 2014. At that hearing, the Court ruled on most of the motions and took some under advisement.

For the reasons stated on the record at the June 10 hearing and supplemented by this Order, the Court rules as follows:

Plaintiff's Motion in Limine (Doc. 267)

1. Any reference to "coinsurance, " a "coinsurance penalty, " or suggestion that Boardwalk was underinsured

Boardwalk asks the Court to exclude evidence or argument that Building 1 is subject to coinsurance, a coinsurance penalty, or that the complex was underinsured. Boardwalk maintains that there is no evidence that it was underinsured, but even assuming there is some evidence, the only relevant question is: "what was the replacement cost of the complex before the fire in 2005, using like kind and quality materials, but excluding law and ordinance costs."

State Auto disagrees that the jury should be shielded from coinsurance references. It argues that coinsurance is a key concept at issue in this case and that while the jury may only be called upon to decided the replacement cost of the complex and of Building 1, respectively, the parties must be allowed to discuss the meaning of coinsurance and whether Boardwalk was underinsured. It argues that otherwise, the jury has no context for the parties' positions and the evidence on these matters.

At the hearing, the Court heard argument from the parties on this issue and took the matter under advisement. The Court is now prepared to rule. As stated on the record, the Court finds that references to coinsurance or a coinsurance penalty are unnecessary in order for the jury to render a verdict on this issue. Therefore, the probative value of this evidence and argument is outweighed by the substantial likelihood of prejudice and jury confusion over this issue. The Court will instruct the jury that it must find the replacement cost of the Boardwalk complex without including law and ordinance costs and that it must determine the replacement cost of Building 1, including law and ordinance costs. These figures will allow the Court to determine as a matter of law whether the coinsurance provision applies, and if so, calculate the penalty. When pressed by the Court on the relevance of these references in light of the jury instructions and interrogatories, State Auto argued that it was the only way for the jury to understand why they are asked to determine the respective values in this case. However, the Court is not persuaded that these references are necessary for the jury to render its verdict. The jury will be instructed on the findings it must make, and the Court presumes that they will follow these instructions. Given the degree of judicial interpretation that has impacted the coinsurance provision in this case, along with the confusing nature of the concept, the Court sustains Boardwalk's motion and finds that this evidence should be excluded under Fed.R.Evid. 403.

2. Expert opinions on the "replacement cost" of the complex that do not comply with the Court's order to exclude law and ordinance costs; opinions regarding the "replacement cost" of Building 1 that do not comply with the Court's order to include all law and ordinance costs and to calculate the cost as of 2010

The Court largely overruled and denied these motions without prejudice, indicating that they will be subject to contemporaneous objections at trial based on the witnesses' compliance with the Court's summary judgment rulings on law and ordinance costs. Some of Boardwalk's objections go to the weight of the evidence and not to its admissibility, as the Court explained fully at the hearing.

3. Lay opinions, or any other evidence, regarding the "replacement cost" of the complex that do not comply with the Court's order to exclude law and ordinance costs, specifically evidence from the Missouri Litigation Testimony

This motion is overruled and denied. Boardwalk may impeach the witnesses based on the arguments asserted in the motion.

4. Evidence regarding Boardwalk's plans or ability to rebuild during the Missouri Litigation

This motion is overruled and denied because it is probative on the issue of the period of restoration on the business income claim. The Court made clear that there is no remaining affirmative defense related to State Auto's claim that Boardwalk did not timely rebuild.

5. Evidence regarding the details of the fire or resulting ...


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