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Brawner v. Allstate Indemnity Co.

November 19, 2007

JOHN BRAWNER AND RENEA BRAWNER PLAINTIFFS
v.
ALLSTATE INDEMNITY COMPANY DEFENDANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER

Presently before the Court are Plaintiffs' Motions in Limine (Docket Nos. 63, 64, 65), Defendant's Motion for Protective Order (Docket No. 67), Defendant's Motion to Compel (Docket No. 68), and Plaintiffs' Motion for Extension of Time to Complete Discovery (Docket No. 70). Plaintiffs allege that on May 18, 2006, their home and contents were destroyed by fire. On November 15, 2006, Defendant advised Plaintiffs that it would deny payment under the policy on the basis of arson, and willful concealment and misrepresentation of material facts. Plaintiffs brought this action against Defendant Allstate Indemnity Company alleging breach of the implied covenant of good faith and fair dealing, slander, breach of the insurance contract, outrage, bad faith, and negligence.

I. Motion in Limine (Docket No. 63)

Plaintiffs move this Court to exclude mention of Plaintiff Renea Brawner's deposition testimony that she and her husband, Jon Brawner, filed an Extension of Time to file a tax return for 2004, 2005, and 2006, and they do not have the returns available, as irrelevant and unfairly prejudicial. Plaintiffs also seek to exclude deposition testimony regarding whether a person must pay money to obtain an extension and whether Plaintiffs did or did not pay any money for said extension as irrelevant and unfairly prejudicial.

Defendant responds by stating that Plaintiffs have put forward no evidence they have filed extensions for 2004-2006, and the fact that Plaintiffs filed extensions clearly demonstrates that they have not reconciled their taxes for 2004-2006, which could demonstrate proof of amounts owed to the Internal Revenue Service ("IRS"). Defendant argues that Plaintiffs have placed their financial condition at issue through their Complaint, and therefore, the information is relevant.

The Court will deny Plaintiffs' motion. First, Plaintiffs' financial situation prior to and at the time of the fire goes to motive. Furthermore, Plaintiffs have placed their financial status at issue through their claim for past and future lost income and loss of earning capacity.

II. Motion in Limine (Docket No. 64)

Plaintiffs move this court to exclude mention of Plaintiff Renea Brawner's deposition testimony concerning the plans that she and Mr. Brawner had to build a house close to her parents. Plaintiffs state that the house was not built as of the time of the destruction of the fire, and therefore, any plans to build a new house would be irrelevant and unfairly prejudicial. Plaintiffs also seek to exclude testimony of Ms. Brawner identifying John Pennington as the person who did the drawings for the home, as well as the fact that there were specifications that she gave to builders, as irrelevant and unfairly prejudicial. Plaintiffs further seek to exclude testimony from John Pennington, who has not been identified as a witness in this case, and any and all information concerning what work Mr. Pennington did, if any, concerning the plans and specifications as irrelevant and unfairly prejudicial.

Defendant responds by stating that Plaintiffs have testified that the reason they were moving from the home which burned was due to the fact that they intended to build said house. Defendant states, however, that it will reserve any examination of Plaintiffs, or any of its witnesses, on this issue until such time as Plaintiffs may open the door to this evidence. Based upon Defendant's response, the Court will grant Plaintiffs' motion. However, the Court will consider allowing this evidence if Plaintiffs open the door.

III. Motion in Limine (Docket No. 65)

Plaintiffs move this Court to exclude mention of Mr. Brawner's deposition testimony concerning whether Mr. Brawner received cash from Farmers, as part of his business, since the fire, and whether he needed to file a 1099 with regard to that cash as irrelevant and unfairly prejudicial. Plaintiffs also move this Court to exclude Mr. Brawner's statements regarding the filing of extension requests to file his tax returns and any payment of money with regard to those requests. Additionally, Plaintiffs seek to exclude Mr. Brawner's statements regarding whether he owes any taxes for 2004-2006. While Plaintiffs admit that whether Mr. Brawner had any obligation for back taxes at the time of the fire loss is relevant, Plaintiffs state that because Mr. Brawner had requested an extension, he does not know whether he owes taxes from 2004-2006. Therefore, such information is irrelevant and unfairly prejudicial. Plaintiffs also request that this Court exclude testimony regarding whether Mr. Brawner got a 1099 in response to a payment going to his wife, whether his wife reported $400 cash paid to her from her mother each month, and all questions about reports to the IRS concerning payments made for income, 1099's, and who reported income to the IRS as irrelevant and unfairly prejudicial.

Defendant contends that Plaintiffs have put their financial condition at issue before this Court, and therefore, their obligations and income are relevant. The Court agrees. As stated above, Plaintiffs' financial situation at the time of the fire goes to motive, and Plaintiffs have placed their past and current financial status at issue through their claim for past and future lost income and loss of earning capacity. Therefore, Plaintiffs' motion is denied as to these issues.

Plaintiffs also seek to exclude information regarding Mr. Brawner's clients in the agriculture marketing business. Plaintiffs note that counsel for Defendant did not "make an issue out of it" when Mr. Brawner declined to answer, and states that the clients in his business are privileged and confidential and should not be disclosed during the course of the trial. Defendant addresses this issue in the paragraph in which it states that Plaintiffs have put their financial condition at issue before this Court, and therefore, their obligations and income are relevant. Plaintiffs have not set forth the information to be excluded clearly enough for the Court to make an informed decision on this point. Therefore, Plaintiffs' motion is denied without prejudice as to this issue.

Plaintiffs also seek to exclude evidence of a fire loss by Linda Hawkins, Renea Brawner's mother, which was promptly paid by Farm Bureau. Defendant does not address this issue. The Court finds that such evidence should be ...


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