After a jury trial, Ms. Dudash obtained a judgment of $865,000 against Mr. Heisig.

Ms. Dudash then brought a bad faith action on behalf of herself and as assignee of Mr. Heisig, alleging that Southern-Owners had not attempted in good faith to settle her claim against Mr. Heisig.

After the district court denied the parties' respective motions for summary judgment, Ms. Dudash moved to exclude the opinions of Southern-Owners' expert witnesses, and the insurer moved to exclude the opinions of Ms. Dudash's expert witness.

In particular, David de Armas, an attorney with Cramer, Price & de Armas, P.A., who had practiced insurance bad faith law since 1987, had been retained by Southern-Owners to offer expert testimony on the issue of bad faith. Based on his review of documents produced in discovery, his experience, and his understanding of Florida law, he opined that Southern-Owners had not had an opportunity to settle Ms. Dudash's claim.

Ms. Dudash retained Susan Kaufman, who had been licensed as a Florida Licensed All Lines Adjuster since 1986 and who had worked as a claims adjuster for 24 years, who opined that Southern-Owners had not undertaken a fair or honest evaluation of Ms. Dudash's claim and had not made a fair and honest attempt to resolve her claim through negotiations.

Kelly Gray, lead claims counsel for an insurance carrier since 2009 who had practiced in the area of bad faith insurance litigation since 1993, was retained by Southern-Owners to rebut Ms. Kaufman's opinions. She reviewed the record in reaching her opinion that Southern-Owners had sought to fairly and accurately adjust the claim, verify Ms. Dudash's injuries, and resolve the claim. She also was critical of the opinions reached by Ms. Kaufman.

The District Court's Decision

The district court denied the motions, except with respect to an issue that Ms. Kaufman had not been retained to provide and that was not in her written report.

In its decision, the district court explained that an expert must be qualified through “knowledge, skill, experience, training, or education” and that the expert's testimony must be the product of “reliable principles and methods.” The district court added that expert testimony also must “assist the trier of fact” to be admissible and generally was not admissible when it offered “nothing more than what lawyers for the parties can argue in closing arguments.”

The district court then rejected Ms. Dudash's contention that Mr. de Armas was not qualified to render his opinions in this case because he was not an insurance adjuster and had not worked for an insurance provider. It pointed out that Mr. de Armas was an attorney licensed in Florida who has practiced for more than 30 years; that a third of his practice included working with insurance carriers in bad faith or claims handling matters; and that a third of his practice included representing plaintiffs in personal injury or bad faith cases. The district court found that he was qualified “based on his knowledge, experience, education and training to provide expert opinions in this case.” Ms. Dudash's argument that he was not qualified to render opinions in this case went to “the weight” of his opinions rather than their admissibility, according to the district court.

The district court also rejected Ms. Dudash's argument that Mr. de Armas' opinions were not the product of reliable methodology. The district court explained that Mr. de Armas represented insurance companies, provided advice on good faith claims handling, and was an “experienced attorney.” His opinions, the district court said, were based on “his understanding of Florida law” and a review of the documents in the case. The district court ruled that he was “uniquely qualified to apply his knowledge and experience” to the issues that were the subject of his opinions, which was a “sufficiently reliable methodology in a bad faith case.”

The district court then found no merit to Ms. Dudash's contention that his testimony was inadmissible as legal argument and conclusions. It noted that no witness could offer legal conclusions or testify to the legal implications of conduct, but that a witness' use of a term with legal significance did “not constitute the expression of a legal opinion.” Moreover, the district court observed, in Florida, reasonable diligence and ordinary care were “considerations of fact – not of law,” and Southern-Owners asserted that Mr. de Armas would testify as “to factual conclusions, not legal conclusions.” Because Mr. de Armas would not be offering legal conclusions, the district court said, it denied Ms. Dudash's motion.

Next, the district court rejected Southern-Owners' argument that Ms. Kaufman was not qualified to testify as an expert because she was not an attorney. The district court pointed out that she had been licensed as an insurance adjuster since 1986, had 24 years of experience in handling insurance claims, and trained and mentored adjusters on good claims handling practices. Therefore, the district court ruled, she had the “necessary qualifications” to testify as an expert based on her knowledge, skill, education, training, and experience. In the district court's view, Southern-Owners' challenge went to the weight of her opinions, not their admissibility.

The district court agreed with Southern-Owners that Ms. Kaufman's opinion of an evaluation range of Ms. Dudash's claim at the time of the accident should be excluded. It noted that Ms. Kaufman had not been retained to provide this opinion and it was not in her written report.

The district court agreed that Ms. Kaufman could not testify regarding legal conclusions, explaining that “no witness may offer legal conclusions or testify to the legal implications of conduct.” Ms. Kaufman, the district court ruled, could testify regarding her factual opinions “because her testimony as a witness experienced in claims adjusting will be helpful to the jury.”

Finally, the district court rejected Ms. Dudash's argument that Ms. Gray's opinions as a rebuttal expert should be excluded because her opinions were not the product of reliable methodology and were inadmissible as improper legal argument and conclusions.

The district court reasoned that Ms. Gray had worked as the lead claims attorney for an insurance company since 2009 and found that her opinions had been formulated based on her review of the record in this case. Given that no witness could offer legal conclusions or testify to the legal implications of conduct, the district court concluded, Ms. Dudash's motion to exclude Ms. Gray's testimony had to be denied.

The case is Dudash v. Southern-Owners Ins. Co., No. 8:16-cv-290-T-27AEP (M.D. Fla. May 12, 2017).