The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motions at dockets 71, 72, 73, 74, 75, 76, and 85]
At docket 71, defendant Safeco Insurance Company of Illinois ("Safeco") asks the court to preclude certain testimony by David Berlier. At docket 96, plaintiff Bill Montagne ("Montagne") responds. Safeco's reply is at docket 115.
At docket 72, Safeco moves to exclude Montagne's proposed Exhibits 70 and 71. Montagne's response is at docket 94. Safeco replies at docket 116.
At docket 73, Safeco asks the court to exclude Montagne's proposed Exhibits 74 and 75. Montagne responds at docket 95. Safeco's reply is at docket 117.
At docket 74, Safeco moves to preclude the plaintiff himself from testifying as an expert witness. Montagne's response is at docket 97. Safeco replies at docket 118.
At docket 75, Safeco asks the court to limit the scope of testimony from plaintiff's treating physicians and health care providers. Montagne's opposition is at docket 93. Safeco's reply is at docket 120.
At docket 76, Safeco moves to exclude evidence relating to Safeco's subrogation claim. Montagne's opposition is at docket 90. Safeco replies at docket 114.
At docket 85, Safeco asks the court to strike fourteen witnesses from Montagne's witness list. Montagne's opposition is at docket 101. Safeco replies at docket 119.
Oral argument has not been requested on any of the motions. Oral argument would not be of benefit to the court.
On January 8, 2004, Montagne was injured in an automobile accident while driving a Chevrolet pick-up insured by Safeco. A copy of insurance policy is found at docket 43-2, attached to the Affidavit of Deborah Campbell and labeled Exhibit A to the affidavit. It is policy number H1788240. ("Safeco Policy") The Safeco Policy included uninsured and underinsured motorist ("UIM") coverage of $250,000 per person plus medical payments coverage of $5,000 per person. Benjamin Brekke, the other driver, was at fault for the accident. Brekke was insured by GEICO. Montagne settled with Brekke on or about November 30, 2005, for the $50,000 GEICO policy limit. Safeco paid the $5,000 limit on its medical payments coverage to Montagne and made a subrogation claim for reimbursement against Brekke. As a result, GEICO paid $45,000 to Montagne and $5,000 to Safeco. Safeco acknowledged that the only third-party coverage available had been exhausted and then offered to make a payment to Montagne under the UIM coverage such that Montagne's total recovery from GEICO, the Safeco medical payments coverage and the Safeco UIM coverage, would be $75,000. Safeco's settlement offer was not accepted, and it has made no payment to Montagne beyond the $5,000 paid under the medical payments coverage.
Safeco's UIM coverage contains an arbitration clause which addresses the circumstance in which the insurer and the insured cannot agree on the amount to be paid. It provides that such a dispute "may be arbitrated,"*fn1 but conditions arbitration on mutual agreement. Safeco did not agree to arbitration. Eventually, Montagne sued Safeco in state court seeking compensatory and punitive damages as well as equitable relief.*fn2 Safeco removed the lawsuit to this court.*fn3 Following motion practice which narrowed the issues in dispute, the case was set for trial. Presently, the case is set for a jury trial on February 2, 2009, on the issues of Safeco's liability for compensatory and punitive damages and the quantum thereof.
David Berlier is Montagne's accountant. According to Montagne's witness list, he is expected to testify at trial "about Montagne's before and after financial condition."*fn4
Berlier was not retained as an expert to provide opinion testimony at trial and no expert disclosure was made. Reduced to its essence, the question framed by the motion and response is the permissible scope of testimony by an injured plaintiff's accountant regarding plaintiff's financial condition when the accountant has not been designated as an expert witness. The answer, of course, (which both parties recognize in their papers) is that the accountant may offer lay testimony, but not expert opinion testimony. Thus, Berlier may offer testimony about what he has personally observed in Montagne's financial records. For example, Berlier might testify that prior to the accident Montagne's business income was "X" and afterwards it was "Y." By way of further example, Berlier may also testify as to how he calculated X and Y, and what information he used to do so. Berlier may not, however, offer an opinion as to what external factors caused Y to differ from X, nor may he ...