Experts cannot opine on coverage.
How many times have you heard an expert testify about coverage in a deposition or try to do so at trial? How many times has it been your expert?
Scottsdale Insurance Co. v. City of Waukegan, No. 07 C 1990, at *1 (N.D. Ill. Feb. 9, 2010), reminds us that this is improper. There the City of Waukegan filed sought coverage under various policies for a $9 million jury verdict from a 42 U.S.C. § 1983 action against a police officer. At issue were motions to strike Waukegan’s insurance expert’s report and to bar the expert’s testimony.
The court, citing Federal Rule of Evidence 702 and Daubert, noted that to be admissible expert testimony must come from one qualified as an expert due to knowledge, training, skill, experience or education; must use a methodology or underlying reasoning that is scientifically reliable; and must be relevant in that it assists the jury in understanding the evidence or in determining a fact in issue.
Relevance was at issue in Scottsdale. The court noted in general that while experts may provide opinions as to ultimate facts they may not testify "as to legal conclusions that will determine the outcome of the case." Because the interpretation of an insurance policy is a question of law, the expert's opinions were doomed.
More specifically, the court barred the following opinions because they would “usurp the Court’s role in interpreting the language contained in the PPL endorsement and the LEL . . .”:
- While the Interstate insuring agreement appears to cover only occurrences during the policy period, the insuring agreement is modified by the Police Professional Liability Form Endorsement (“PPL endorsement”).
- The PPL endorsement “follows form” over the American Safety Law Enforcement Liability coverage (“LEL”), which is not limited to occurrences during the policy Period.
The court barred the following opinions because they were conclusions regarding duties imposed by law:
- If American Safety had settled with Dominguez for its policy limits prior to or during trial, Interstate would have a duty to assume the defense of the City of Waukegan based on the policy definition of “loss.”
- Interstate did not fulfill its duties to Waukegan after receipt of notice of the Dominguez claim up to and after the trial. Although Interstate had not duty to defend until the underlying American Safety policy was exhausted, Interstate had a duty to interpret its own policy correctly and not attempt to mislead the City of Waukegan by failing to address the PPL endorsement in Terry Donahoe’s denial letter dated October 20, 2006.
The court barred the following opinions because they told the jury what result to reach:
- The arrest of Dominguez; the trial of Dominguez; the requirement that Dominguez register as a sex offender; Dominguez’s arrest and conviction for attempted failure to register as a sex offender; Dominguez’s arrest by the U.S Immigration and Naturalization Service; the alleged malicious prosecution and due process violations were each bodily injuries, personal injuries, occurrences or triggering events that would have engaged coverage under the Law Enforcement Liability (“LEL”) insurance policies in effect at the time of the events.
- The Coregis primary polices provide coverage to Waukegan and its police officers with respect to the Dominguez claim and the jury verdict resulting therefrom.
- The Coregis umbrella polices provide coverage to Waukegan and its police officers with respect to the Dominguez claim to the extent that “occurrences” qualifying for coverage on the corresponding Coregis underlying polices also qualified as covered “occurrences” on one or more umbrellas.
- Coregis did not fulfill its duties under its policies after receipt of notice of the Dominguez claim up to and after trial. Coregis denied coverage unjustifiably, may not have policy defenses with respect to their exposure regarding the Dominguez claim, violated Illinois law with respect to claim handling as a consequence, it is reasonable to conclude that Coregis acted in a vexatious and unreasonable manner in the way they addressed the Dominguez claim.
- Based on the reasons provided above and the import of the Employers Insurance of Wausau v. Ehlco Liquidating Trust, et al. case in Illinois, because of Coregis’ failure to deny coverage on a timely basis, it likely has no policy defenses because it is estopped for raising them.
The court struck eighteen more opinions because they constituted legal conclusions.
What use is an insurance expert if he can't testify as to coverage? Not much in my view, which is why I rarely use them. Scottsdale brings home the point, sometimes forgotten by courts in my experience, that experts simply cannot testify as to coverage; only the court can.
