IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

WINNIE THOMPSON,

Plaintiff,

vs. CASE NO. 3:10-cv-318/RS-EMT

CINCINNATI INS. CO.,

a foreign corporation, 

Defendant.

_________________________________________/

ORDER

Before me is Plaintiff’s Motion in Limine (Doc. 97) and Defendant’s Response in 

Opposition (Doc. 103). 

The touchstone of admissibility is relevance, “having the tendency to make the 

existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. 

Although relevant, evidence may be excluded in situations where “the probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury.” Fed. R. Evid. 403. 

Here, Plaintiff seeks to exclude the admission of testimony or evidence relating to 

(1) Katie Chavers’ behavior/duties; (2) Katie Chavers’ contacts with her attorney Bob 

Kerrigan; and (3) Katie Chavers’ and Dave DeMara’s communications with the Chavers’ 

insurance carrier. 

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When an insurer is handling claims against its insured, it “has a duty to use the 

same degree of care and diligence as a person of ordinary care and prudence should 

exercise in the management of his own business.” Perera v. United States Fid. & Guar. 

Co., 35 So. 3d 893, 898 (Fla. 2010) (citations and quotations omitted). Under Florida 

law, an insurer’s conduct in bad faith claims is judged by the “totality of the 

circumstances.” Snowden v. Lumbermens Mut. Cas. Co., 358 F. Supp. 2d 1125, 1127 

(N.D. Fla. 2003). This broad standard makes numerous issues relevant to the trier of 

fact’s determination of an insurer’s reasonableness. 

Ms. Chavers, the representative of the decedent, is of critical importance to this 

case. While Ms. Chavers’ actions are not the focus of an insurance bad faith case, her 

actions are nonetheless relevant to the behavior of Defendant in attempting to settle the 

claim. Inquiries into a claimant’s prior conduct and motives are not per se irrelevant and 

prejudicial. Rather, because the insurer has the burden to show that there was no realistic 

possibility of settlement within the policy limits, within the context of the “totality of the 

circumstances” test, the conduct of a claimant and her attorney may be relevant and 

admissible. Barry v. Geico Gen. Ins. Co., 938 So. 2d 613, 618 (Fla. 4th DCA 2006).

See also Cardenas v. Geico Cas. Co., 2011 U.S. Dist. LEXIS 3475 (M.D. Fla. 2011) 

(citing id.) (“Although a bad faith claim derives from and emphasizes the duty of the 

insurer to the insured, the conduct of a claimant and the claimant's attorney is relevant to 

determining the realistic possibility of settlement.); Mendez v. Unitrin Direct Prop. & 

Cas. Ins. Co., 2007 U.S. Dist. LEXIS 98925 (M.D. Fla. 2007).

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Likewise, Ms. Chavers’ actions and the actions of Defendant’s agent Mr. DeMara 

towards Ms. Chavers’ insurance company are relevant. At a minimum, they speak 

towards Ms. Chavers’ ability to conduct discussions with an insurance company during 

this difficult time. This is not unfairly prejudicial. 

Plaintiff’s Motion (Doc. 97) is DENIED without prejudice. Objections to 

specific testimony or evidence not addressed in this Order may be raised at trial. In 

addition, the objections above may be renewed at trial as the facts permit. 

ORDERED on May 10, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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