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Tag: Insurance Industry

  • Neurology Expert Was Not Allowed to Opine on Credibility of Other Witnesses

    Neurology Expert Was Not Allowed to Opine on Credibility of Other Witnesses

    This civil action arises from a motor vehicle accident involving Plaintiff Sarah Kollman on February 20, 2019. The other driver, Taylor Bonello, was at-fault for the collision, which Plaintiff alleged caused her physical injuries.

    At the time of the collision, Bonello was insured for liability with Progressive Insurance company for $100,000.000. Plaintiff had an underinsured motorist (UIM) policy with Defendant State Farm Mutual Automobile Insurance Company. After receiving permission from Defendant, Plaintiff settled with Bonello for the $100,000.000 policy limit. Plaintiff then demanded the full UIM limits of $100,000.000 from Defendant under her policy. Defendant refused to pay, saying that all of Plaintiff’s damages were covered by the money she received from Progressive. In response, Plaintiff brought the instant lawsuit for breach of contract and breach of implied duty of good faith and fair dealing.

    Plaintiff sought to limit the opinions and testimony of two of Defendant’s proposed expert witnesses, Dr. Haley Burke and Keith Olivera while Defendant sought to limit the testimony of Plaintiff’s proposed expert Jeremy A. Sitcoff.

    Neurology Expert Witness

    Haley A. Burke is board-certified in neurology, psychiatry and interventional pain management. Burke has first-hand experience and training working with breast cancer patients who had similar surgeries from when she studied at Anderson Cancer Center in Houston, Texas.

    Get the full story on challenges to Haley Burke’s expert opinions and testimony with an in-depth Challenge Study.

    Insurance Expert Witnesses

    Keith R. Olivera is an attorney duly licensed to practice law in Colorado who has practiced in excess of 30 years in various fields of insurance, including good faith/bad faith law. He is an expert in the fields of civil litigation and insurance industry standards.

    Want to know more about the challenges Keith Olivera has faced? Get the full details with our Challenge Study report.

    Jeremy Andrew Sitcoff has been licensed to practice law in Colorado for over twenty-seven years. For more than twenty-two years approximately 85% of my practice has been devoted to insurance coverage, claims handling practices and procedures, and insurance breach of contract and bad faith on behalf of policyholders.

    Discover more cases with Jeremy Sitcoff as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Haley Burke, MD

    Plaintiff argued that Burke, who is certified in neurology, psychiatry, and pain management, is not qualified to make opinions regarding the Traffic Accident Report or Plaintiff’s lumpectomies and breast reconstructive surgery, Lyme disease, sinus and eye surgery, mental health, dental health, shoulder pain, and gastrointestinal issues.

    1. Burke’s qualifications

    Burke did not render an opinion regarding the Traffic Accident Report; she merely reiterated how the State of Colorado defines an “01” severity for an injury. The Court cannot identify where in Burke’s report Plaintiff claimed that she stated an opinion on the Traffic Accident Report. In addition, Burke’s discussion of PTSD is included as part of a summary of another provider’s neurocognitive testing of Plaintiff. As none of these comments involve Burke’s own opinions or “scientific, technical, or other specialized knowledge,” they are not properly challenged under Rules 702 and 403.

    Next, the fact that Burke did not cite any articles or provide a more detailed basis for her opinion that Plaintiff’s sinus and cataract surgery, mold exposure, fall, gluten intolerance, and Lyme disease potentially contributed to her symptoms did not necessarily make these opinions unreliable.

    The Court found that Burke is qualified to opine on the possible effects of Plaintiff’s lumpectomies, breast reconstructive surgery, shoulder pain, and mental health. The Court also found that Burke is qualified to know that these “are major surgeries and would be expected to contribute to stress and pain for many people.”

    Finally, Burke is also qualified and permitted to comment on the tests and practices employed by other providers who treated Plaintiff. As long as a subject is within an expert’s area of expertise, as is the case here, he or she may conclude whether he or she agrees with another’s data and opinions. Burke’s comments are not attacks on the other providers’ credibility but rather their substantive practices.

    2. Burke’s Rebuttal Report

    In contrast to Burke’s initial report, the rebuttal report is largely an attack on the credibility of Plaintiff’s experts. She specifically called into doubt the qualifications of Plaintiff’s experts and the believability of their testimony.

    Therefore, the Court appropriately excluded portions of Burke’s rebuttal commenting on the qualifications of Plaintiff’s expert witnesses.

    Other parts of the rebuttal report, such as the section discussing the records from Parker Vision Specialists, are appropriately limited to contradicting Plaintiff’s expert’s opinions and do not put forward new arguments or theories. Therefore, these portions of the report are admissible.

    B. Keith Olivera

    Plaintiff argued that several opinions of Defendant’s insurance expert, Olivera, should be excluded because he impermissibly drew legal conclusions, cited unreliable industry standards, and included irrelevant information.

    1. Legal conclusions

    Plaintiff cited 21 opinions that it argued are legal conclusions regarding the reasonableness of Defendant’s actions and complicity with industry standards.

    The Court agreed that throughout Olivera’s report, he impermissibly conflated Colorado insurance industry standards with case law to draw conclusions about the reasonableness of Defendant’s actions.

    Defendant stipulates to striking opinions 10, 11, 15, and 19. In addition, opinion 14 is not an application of either industry or legal standards to the facts of the case. While it is Olivera’s opinion that Burke’s testimony supported Defendant’s position, opinion 14 is not a conclusion regarding whether Defendant’s evaluation of or reliance on Burke’s report was in line with industry or legal standards. Therefore, the Court found Plaintiff’s argument is not applicable to opinion 14 and will not strike it.

    Out of the remainder of the 21 opinions cited by Plaintiff in this section of their motion, opinions 4, 5, 6, 9, 12, 13, 16 are permissible testimony regarding Defendant’s conformity with industry standards, not legal standards. On the other hand, opinions 2, 8, 17, 18, 20 are impermissible conclusions regarding the reasonableness of Defendant’s conduct, which is a matter of law.
    The Court also excluded opinions 1, 3, 7, and part of 21 because they are conclusions resulting from application of case law and statutory law to the facts of the case.

    2. Support for industry standards

    Plaintiff challenged 7 of Olivera’s opinions as based on industry standards that are not codified and have not been shown to be generally accepted. The Court disagreed, finding that at the beginning of his report, Olivera adequately stated a basis for the industry standards he cited.

    In his report, Olivera “identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards.”

    He clearly tied each of his opinions to an identified industry standard and stated the basis for that standard, citing Colorado case law, statutes, and his 40 years of experience in the insurance industry. Therefore, the Court found that the seven challenged opinions are not unsupported ipse dixit statements but are instead based on clearly articulated sources.

    3. Ties to factual observations

    Plaintiff argued that Olivera’s report failed to connect the case law and standards cited in pages 6-7 of his report to the facts of this case.

    As discussed above, Olivera may not directly opine on whether Defendant’s conduct was unlawful under the case law and statutes cited. However, courts in this district have noted that case law and statutes inform insurance industry standards, and experts are permitted to testify whether a Defendant’s conduct “conformed with specific industry standards, including ones identified in Colorado statutes.”

    Therefore, Olivera cannot tie the case law and statutes in pages 6-7 of his report directly to the facts of the case. However, as Olivera used the law and statutes to provide a basis for the industry standards he applied throughout his opinion, his discussion of them is admissible.

    4. Methodology and supporting facts

    Plaintiff argued that Olivera failed to provide any methodology or supporting facts for two of his opinions. However, Plaintiff’s argument reads not as a challenge to Olivera’s methodology but rather as a rehash of her argument that Olivera did not provide a basis for the industry standards cited. The Court has already discussed that Olivera provided sufficient bases for the industry standards he applied. To the extent Plaintiff disagreed with Olivera’s conclusion that it was consistent with industry standards for Defendant to consider Burke’s IME report, she may address her disagreement through cross-examination at trial.

    5. Rebuttal Opinion

    Plaintiff objected to Olivera’s rebuttal statement that he disagreed with Sitcoff’s “discussion of the case law, statutes, and regulations that provide Colorado insurance industry standards” to the extent it is inconsistent with his own.

    Plaintiff argued that it is unclear what Olivera specifically opposes. Olivera’s general statement of disagreement is supported by the lengthy discussion of case law, statutes, and regulations included in his initial report and to which he refers to as the basis for his disagreement in the rebuttal. He did not seek to introduce new facts or information to support his disagreement. Therefore, the Court found that Plaintiff is adequately on notice for the basis upon which Olivera disagreed with any of Sitcoff’s contrasting opinions.

    C. Jeremy Sitcoff

    Defendant argued that eight of Sitcoff’s opinions are not supported by any referenced industry standard and that he impermissibly drew legal conclusions from applying the law to the facts of the case.

    The Court excluded Opinions 2, 5, 6, and 7 as impermissible legal conclusions because they commented on the reasonableness of Defendant’s investigation, which was a legal determination reserved for the jury. In contrast, the Court held that Opinions 3, 4, and 8 drew conclusions based on industry standards rather than legal standards and were therefore admissible.

      Held

      • The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s retained expert Haley Burke.
      • The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s insurance industry expert Keith Olivera.
      • The Court granted in part and denied in part Defendant’s motion to exclude the opinions of Jeremy Sitcoff.

      Key Takeaway

      Physicians frequently rely on medical knowledge, physical examination, and patient history to form opinions, all of which are “routinely admitted in federal courts because this methodology is widely accepted among the relevant scientific community.” 

      Case Details:

      Case Caption: Kollmann V. State Farm Mutual Automobile Insurance Company
      Docket Number: 1:23cv2802
      Court Name: United States District Court, Colorado
      Order Date: April 23, 2026
    1. Insurance Expert Not Allowed to Opine on Legal Duties

      Insurance Expert Not Allowed to Opine on Legal Duties

      Plaintiff Lorenzo Garcia alleged that he was lawfully stopped at a red light when the vehicle Kenneth Childress was driving collided with the vehicle Pasty Ration was driving, causing Ms. Ration’s vehicle to strike the rear of Garcias vehicle. Garcia further alleged that as a result of the accident he sustained permanent, disabling injuries requiring extensive medical treatment.

      At the time of the collision, Garcia held a valid automobile insurance policy with State Farm, which included uninsured/underinsured motorist (“UM/UIM”) coverage with policy limits of $600,000. He alleged that the other drivers’ auto insurance coverage was insufficient to compensate him for his injuries. Garcia further alleged that he timely submitted a claim for UM/UIM benefits to State Farm but that State Farm failed to pay him the full benefits he is owed under the policy.

      Garcia disclosed Elliott Flood as an expert who may testify on his behalf at trial and produced Flood’s report.

      Defendants asked the Court to “confine Flood’s testimony to industry standards and customs relevant to this matter” and to prohibit him from “testifying to any legal conclusions” and from “applying the law to the facts as part of his testimony at trial.”

      Insurance Expert Witness

      Elliott St. John Flood has 35 years of professional experience in the insurance industry, including in positions of significant responsibility, as well as over a decade of professional experience as an attorney specializing in insurance law.

      Want to know more about the challenges Elliott Flood has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      Defendants argued that the Court should exclude portions of Flood’s proffered opinions because they infringe on the Court’s duty to define the law of the case and the jury’s duty to apply that law to the facts and are thus unhelpful.

      Plaintiff is correct that expert testimony is not objectionable merely because it refers to legal concepts and Flood’s opinions are not excludable on that basis. For example, Flood’s opinions are not excludable merely because they address the legal concepts of “damages” and “causation.” Nevertheless, Plaintiff failed to refute Defendants’ charge that some of Flood’s opinions impermissibly state legal conclusions that he has drawn by applying the law to the facts of the case. And based on his report, it certainly appeared that Flood proposed to opine about the propriety of Defendants’ conduct in relation not only to insurance industry customs, practices, and standards, but also to Defendants’ legal duties as he defines them.

      Flood proposed to opine that “insurers handling first-party claims owe a heightened standard of fairness and transparency” and have a “fiduciary-like responsibility when handling UM claims for their policyholders.” These opinions appeared to concern Defendants’ legal duties rather than industry standards. But whether a legal duty exists is a question for the Court to decide, and it would not be helpful to the jury for Flood to opine on this topic.

      In addition, Flood frequently appeared to draw legal conclusions by directly or indirectly characterizing Defendants’ conduct as unreasonable or in bad faith, where unreasonableness and bad faith are elements of claims asserted in Plaintiff’s Complaint.

      The Court excluded Flood’s testimony because such testimony is not helpful, and it is also more unfairly prejudicial than probative. 

      Held

      The Court granted Defendants’ motion to exclude certain opinions of Plaintiff’s expert Elliott Flood.

      Key Takeaway

      Flood did more than opine about insurance industry customs, practices, and standards and whether Defendants’ handling of Plaintiff’s claim conformed to such norms. Rather, Flood appeared to define the scope of Defendants’ legal duties, including the duties to act reasonably and in good faith, and to apply the law regarding these duties to the facts of the case, impinging on the Court’s and the jury’s performance of these functions.

      Case Details:

      Case Caption: Garcia V. State Farm Insurance Company
      Docket Number: 1:24cv1286
      Court Name: United States District Court, New Mexico
      Order Date: April 17, 2026
    2. Insurance Expert Allowed to Opine on Diagnostic Methods

      Insurance Expert Allowed to Opine on Diagnostic Methods

      This first-party property damage case arises from a dispute to insurance benefits related to a July 15, 2019 hailstorm. AMCO issued a policy of insurance (the “Policy”) to PTT Properties, Inc. for property located at 411 Sable Boulevard, 525 Sable Boulevard, 501 Sable Boulevard, and 14410 E. 6th Avenue, Aurora, Colorado 80111 (collectively, “the Property”). Plaintiff inspected the Property and advised it sustained hail damage. On January 17, 2020, AMCO advised PTT that the estimate for each location was below the wind/hail deductible, so no payment was owed.

      PTT assigned its claim with AMCO to Plaintiff. Following additional review, AMCO amended its repair estimate and issued payment of $421,980.86 for the Actual Cash Value associated with 411 Sable and $154,992.60 for the ACV associated with 501 Sable after applying the respective deductibles. On May 27, 2020, Plaintiff’s counsel provided PTT’s invocation of appraisal. The parties proceeded to appraisal which became binding on September 14, 2021. The award was for $40,113.83 in Replacement Cost Value and ACV without consideration of any deductible or prior payments. Plaintiff asserted claims for breach of contract, and declaratory judgment vacating the appraisal.

      Plaintiff disclosed David Herring a building consultant, estimator, umpire, appraiser, and self-described expert in the field of first-party property damage claims.

      Defendant filed a motion to strike Herring as an expert because he is generally unqualified to opine on the matters addressed in his report, because he is “not a lawyer and has never adjusted insurance claims before.”

      Insurance Expert Witness

      David Herring has decades of experience working on insurance claims, including cost estimation, appraisal, umpiring, and testifying as an expert witness.

      Get the full story on challenges to David Herring’s expert opinions and testimony with an in-depth Challenge Study.

      Discussion by the Court

      A. Legal Conclusions

      AMCO argued that several of the opinions expressed in Herring’s report involve improper legal conclusions as well as opinions that improperly invade the province of the jury.

      While Herring may offer testimony articulating what he believes to be the relevant industry standards, and explaining—factually—how Defendant’s conduct did or did not comport with those standards, the Court excluded Herring’s opinions that Defendant’s conduct was unreasonable or insufficient as a matter of law, or was in violation of any statute. In other words, he is unqualified to offer such opinions as a matter of legal expertise and such ultimate conclusions would not be helpful to the jury and would improperly intrude on its fact-finding function.

      B. Reliability

      Next, Defendant sought to exclude the “entirety of Herrings’ opinions” “because they are not based on sufficient facts and are not the product of reliable principles and methods” and are “the type of ipse dixit that courts refuse to accept.”

      However, the record reflects Herring has experience as a claims adjuster, providing estimating services for property damage, and investigating insurance claims. Herring is qualified to opine on hail damage to roof systems and the cost to repair such damage. He also appeared qualified to provide opinions regarding the cause of damage and the diagnostic methods used in the industry to detect water damage.

      Defendant also argued that Herring’s report is not reliable because he opined that the engineering report from January 20, 2020, did not address the ongoing leaks and water intrusion issues when the Defendant argues it did. The Defendant is free to point out inconsistencies in Herring’s report or that his opinions should be afforded less weight than the expert opinions proffered by its expert. It will be up to the jury to determine which expert to believe.

      Held

      The Court granted in part and denied in part Defendant’s motion to exclude the testimony of Plaintiff’s expert, David Herring.

      Key Takeaway

      An insurance industry expert’s methodology has been deemed reliable when the expert “explains what he knew of insurance industry standards and practices based on his experience, explains the facts and evidence he reviewed in the case,” and opines on how the insurer’s handling of the Plaintiff’s claim “fell short of the relevant industry standards or differed from handling of similar claims in his experience.”

      Case Details:

      Case Caption: Hettick Contractors LLC V. Amco Insurance Company
      Docket Number: 1:20cv412
      Court Name: United States District Court, Colorado
      Order Date: March 30, 2026
    3. Insurance Expert Was Allowed to Opine on Property Coverage Claims

      Insurance Expert Was Allowed to Opine on Property Coverage Claims

      Church Mutual renewed an insurance policy issued to Chabad of New Mexico on June 2, 2022, which covered certain real property owned by Chabad in Rio Rancho, New Mexico. The policy includes a vacancy condition providing that if a building has been vacant for more than 60 consecutive days before a loss, coverage is limited. The policy eliminates coverage entirely for losses caused by vandalism, even though vandalism would otherwise be a covered cause of loss, and any otherwise covered loss is subject to a 15% reduction. A building is considered vacant when it lacks sufficient personal property to conduct customary operations.

      On December 28, 2022, there was an act of arson committed on a building covered by the Policy. On March 5, 2023, there was a second act of arson committed on the same building. Chabad submitted claims under the Policy to Church Mutual for both fires.

      On January 29, 2024, Church Mutual instituted this diversity action, seeking a declaratory judgment that it owes no duty to cover Chabad’s claims because the property was “vacant” for more than sixty consecutive days before the acts of arson, and therefore no coverage is owed pursuant to the Policy’s “Vacancy” loss condition.

      Chabad sought to introduce expert testimony “regarding insurance industry standards, customs and practices and about how Church Mutual Insurance Company deviated from those standards in its handling of the property damage claims.”

      In this regard, Chabad has hired Stuart Setcavage who purports to be “an expert in the field of insurance industry claim handling, policy interpretation and coverage analysis.” Church Mutual filed a motion to exclude Setcavage’s testimony.

      Insurance Expert Witness

      Stuart S. Setcavage has considerable experience in the handling and management of third-party, contractual and extracontractual lawsuits. He has learned industry claim handling standards based on personal learning, training, research, and industry experience for over three decades. His adjuster’s licenses in Texas, Florida, and West Virginia enjoy reciprocal agreements with most every state that requires licensing.

      He is a past president of the Pennsylvania Defense Institute and also served as chairman of its Coverage and Claims Practices committee. Throughout his career he has attended professional seminars and continuing legal education seminars related to insurance industry claims practices and procedure, auto law, policy, and coverage bad faith. He has given many presentations to both claims and law groups on insurance and claims-related topics, and served as faculty for the Pennsylvania Association for Justice, the Pennsylvania Bar Institute, the West Virginia Association for Justice, the Florida Justice Association, and the Kentucky Justice Association.

      Want to know more about the challenges Stuart Setcavage has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      a) Qualification

      Church Mutual initially argued that Setcavage is unqualified to offer expert opinions in this case because he lacks sufficient knowledge of property insurance policy language and property insurance adjusting to offer reliable opinions regarding the subject property.

      Church Mutual noted that Setcavage’s background is primarily in handling and supervising automobile insurance claims and most of the cases for which he has provided expert testimony involved automobile insurance claims.

      But Church Mutual did not articulate any difference between industry standards applying to claims handling under automobile insurance policies and property insurance policies that would render Setcavage’s knowledge, experience, education, and training as to the former irrelevant to the latter.

      As a result, the Court found that Setcavage is qualified by knowledge, skill, experience, training, and/or education to render an opinion on insurance practices and standards and whether Church Mutual deviated from those standards in its handling of Chabad’s claims and in renewing Chabad’s Policy in 2022 with the “Vacancy” loss provision.

      b) Usurping the role of the Court

      Church Mutual next argued that Setcavage’s interpretation of the Policy’s terms are legal conclusions that usurp the role of the Court. The Court agreed with Church Mutual that the interpretation and construction of an insurance policy is a question of law for the Court.

      The motion did not specify which of Setcavage’s opinions Church Mutual believes are legal conclusions. However, it appeared to object to Setcavage’s opinion that the plain language of the Policy’s “Vacancy” provision applies, rather than Church Mutual’s position that “vacancy” means “unused.”

      c) Reliability

      Church Mutual next argued that Setcavage’s opinion is unreliable because “no discernible methodology exists to guide Setcavage’s interpretation of the Policy.”

      The Court first found that Church Mutual’s argument is largely moot because it takes issue primarily with Setcavage’s interpretation of the Policy’s “Vacancy” loss condition, and the Court has already interpreted that provision and found that it does not preclude coverage. Thus, Setcavage’s interpretation of the Policy’s “Vacancy” loss condition will be relevant only to whether Church Mutual’s interpretation of the Policy’s “Vacancy” loss condition was frivolous, unfounded, or otherwise violative of the duty of good faith and fair dealing.

      He further stated that “claim professionals are trained to know that the plain meaning of an insurance policy will prevail unless its terms somehow violate public policy” and that “Church Mutual is attempting to redefine ‘vacancy’ to include factors not set forth in the policy it had underwritten and sold to this policyholder.”

      As to valuation, Setcavage stated that “claims professionals are trained to know that the plain meaning of an insurance policy will prevail unless its terms somehow violate public policy. Like ignoring policy definitions relative to coverage, calculating the loss differently than what the policy promises to pay violates industry standards.”

      It is unclear what more of an explanation Church Mutual believes is necessary in this context.

      d) Assist the jury

      Finally, Church Mutual argued that Setcavage’s testimony will not assist the jury because there is nothing about Church Mutual’s claim handling procedures or the principles of bad faith that would require any real expert opinion.

      Here, Setcavage has offered opinions that may assist the jury in deciding whether Church Mutual has engaged in bad faith insurance conduct. For example, he opines that Church Mutual’s handling of Chabad’s claims was “unfair” and “falls well below industry standards.” He further stated that “the purported investigation in this matter was woefully inadequate as is evidenced by the claim notes. In fact, the claim handling or investigation is indicia of a pre-determination to deny payment for these claims.”

      These opinions (and others) may assist the jury in determining whether Church Mutual engaged in bad faith insurance conduct under New Mexico law.

      Held

      The Court denied Church Mutual Insurance Company’s motion to exclude the testimony of Stuart S. Setcavage

      Key Takeaway

      District courts evaluating the reliability of non-scientific expert testimony do not have to focus on whether the expert employed an objective standard or methodology and can instead focus on the reliability of the expert’s personal knowledge or experience.

      Setcavage’s personal knowledge and experience permits him to offer an expert opinion regarding insurance industry standards, customs and practices and about how Church Mutual deviated from those standards in its handling of Chabad’s claims.

      Case Details:

      Case Caption: Church Mutual Insurance Company, S.I. V. Chabad Of New Mexico
      Docket Number: 1:24cv90
      Court Name: United States District Court, New Mexico
      Order Date: February 10, 2026
    4. Insurance Expert’s Testimony on Legal Obligations Excluded

      Insurance Expert’s Testimony on Legal Obligations Excluded

      Plaintiff The Lucia Family Trust (“Plaintiff” or the “Trust”) and non-party Daniel Unrein had a homeowners insurance policy (the “Policy”) with Defendant American Family Mutual Insurance Company, S.I. (“Defendant” or “American Family”). The policy covered a property located in Denver, Colorado (the “Property”). A fire occurred at the property in September 2021, and Unrein submitted a claim under the policy. Unrein passed away in November 2021, leaving the Trust as the remaining insured listed in the policy.

      The repairs to the Property required asbestos abatement.The first contractor selected to perform the abatement, CAT Environmental Services, LLC (“CAT”), failed to complete the job and violated several Colorado Department of Public Health and Environment regulations, among other issues. The Trust then hired other contractors to complete the abatement and perform additional reconstruction work on the Property. Although American Family made some payments, the Trust alleged that American Family has refused to pay for approximately $112,000 of covered abatement and reconstruction work, in violation of the Policy.

      American Family filed a motion to exclude certain opinions of Plaintiff’s insurance industry standards expert, Brian Seigal, pursuant to Rule 702.

      Insurance Expert Witness

      Brian Seigal has been involved in the insurance industry throughout his career for several decades. He served as the lead supervisor and claim manager position in property and casualty claims, the senior adjuster and team manager status of property and casualty claims at Liberty Mutual Group, in which capacity he adjusted, audited, and led multi-disciplinary claim teams.

      Seigal is engaged as a consultant in a wide variety of insurance related cases, which include evaluation of first and third-party property claims.

      In 1998 he earned and obtained the Associate Insurance Claims (AIC) Designation from the Insurance Institute, which is a nationally recognized insurance claims designation.

      Get the full story on challenges to Brian Seigal’s expert opinions and testimony with an in-depth Challenge Study. 

      Discussion by the Court

      I. Motion to Exclude

      A. Qualifications

      American Family first attacked Seigal’s qualifications as an expert under Rule 702(a). American Family argued that Seigal “has not worked in the insurance industry since 2018″—focusing instead on consulting work—and that his industry experience “did not involve property damage claims.”

      To the extent American Family contended that Seigal must have specific experience in “homeowners property damage claims involving asbestos abatement,” that is an “overly narrow” test of Seigal’s qualifications. Rather, Seigal’s report reflected a familiarity with the applicable industry and statutory standards for handling property claims in Colorado.

      Seigal has “passed the licensing exams for a Colorado Property & Casualty and Life Producer.” And his curriculum vitae and report describe over 20 years of experience at various stages of the claim-shandling process, including “reviewing and auditing thousands of open and closed claim files from 50+ claims departments for the adherence to company standards and practices.” Seigal’s more recent pivot to consulting work does not undermine his extensive industry experience.

      The Court accordingly found that Seigal’s opinions regarding American Family’s handling of Plaintiff’s claim are “within the reasonable confines of his subject area” and will assist the jury in evaluating American Family’s conduct.

      B. Methodology

      American Family next attacked Seigal’s methodology. American Family faults Seigal for failing to analyze American Family’s conduct based on the information it had at the time it handled Plaintiff’s claim.

      Seigal’s methodology essentially involved reviewing the facts of the case and relevant documents and then analyzing them based on his knowledge and experience of insurance industry standards. Courts routinely find that such a methodology is reliable for an insurance industry expert.

      In light of Seigal’s methodology, the Court respectfully disagreed with American Family that Seigal failed to evaluate American Family’s conduct based on the information available at the time. Seigal’s report spends more than 50 pages detailing the timeline of the claim and specifically references the statements and communications made to and by American Family’s employees during the claim adjustment process. 

      American Family next argued that Seigal failed to set forth a methodology to support his statement that “liability was reasonably clear.” 

      In full, the relevant statement in Seigal’s report is:

      “Liability was reasonably clear in this matter and the claim was accepted by [American Family]. Nonetheless, [American Family] put [Plaintiff] into a situation where they had to file multiple reports for the abatement process and proof of loss. [American Family] understood the impact on the personal property claim under Coverage B. The process [American Family] used put the Coverage B claim in jeopardy for [Plaintiff]. This influenced the settlements under the insurance policy.”

      The Court did not understand this statement to opine that “[l]iability was reasonably clear” for Plaintiff’s claimed reconstruction costs, or that American Family was obligated to automatically pay every dollar demanded by Plaintiff. This portion of Seigal’s opinion exclusively discussed abatement costs and personal property losses, not reconstruction.

      C. Specific Opinions

      American Family also challenged several specific opinions in Seigal’s report that it contended are ipse dixit, subjective beliefs, legal conclusions, or impermissible statements about litigation conduct.

      1. Ipse Dixit

      American Family contended that five of Seigal’s opinions are inadmissible ipse dixit. First, American Family challenged Seigal’s description of American Family’s investigation and denial of coverage for Unrein’s and his dog’s injuries as “a heavy-handed approach for an insured who AMF knew was unfamiliar with the insurance process.”

      The Court respectfully disagreed that this statement is ipse dixit. Seigal reviews the applicable industry standards in earlier portions of his report, including Colorado’s good faith standard.

      The Court likewise found that another challenged opinion is not ipse dixit for substantially the same reasons. This opinion involved Seigal’s criticism of American Family’s “negotiating tactic” of offering Unrein a “lowball” amount to cover his living expenses in order to “force a settlement at a compromised value to [American Family’s] benefit.”

      The remaining three challenged opinions relate to Seigal’s references to how other insurers might handle similar claims. The opinions are (1) “In my opinion, [American Family] did not manage this claim in accordance with industry standards regularly embraced by carriers in cases like this one,” (2) “[American Family’s] claim handling fell short of how claims like [Plaintiff’s] are typically investigated,” and (3) “[American Family] offered [Plaintiff] substantially less than the amounts of insureds in these types of matters.”

      The Court agreed with American Family that these opinions are unsupported to the extent they imply that Seigal has expertise in the specific type of claim at issue. Seigal’s report and curriculum vitae reflect that he does not specialize in or have particular experience with property damage claims.  Nor does his report discuss any comparator cases involving claims “like” Plaintiff’s, let alone how such claims would be investigated, adjusted, and settled. 

      2. Subjective Beliefs or Opinions

      American Family next challenged five more opinions as based only on Seigal’s subjective beliefs. Plaintiff conceded that three of these opinions are inadmissibly speculative. Those opinions involved Seigal’s statements that American Family “utilized a strategy designed to limit its claim costs,” was “more concerned with lowering [its] claim costs,” and possessed “preconceived thoughts and bias” during the claim-handling process. The Court agreed that, as stated in Seigal’s report, these opinions lack foundation and must be excluded as speculative. 

      The remaining two opinions asserted that American Family’s employees were “focused on reducing [American Family’s] exposure” and hired certain vendors “for this purpose in mind.” In Plaintiff’s view, = Seigal’s conclusion that American Family sought to reduce its exposure is grounded in factual observations. Plaintiff appeared to concede, however, that claiming American Family had a certain “purpose in mind” is improper speculation.

      The Court agreed with American Family that, as presented in Seigal’s report, these statements improperly assigned a motive to American Family and its employees. Seigal did not adequately provide a factual basis for his opinions about the “purpose” of certain actions or what certain employees were “focused on.”

      3. Legal Conclusions

      American Family asked the Court to exclude several of Seigal’s statements that American Family believes are legal conclusions. In these statements, Seigal opined that American Family’s conduct was “unreasonable,” violated the “standards of good faith and fair dealing,” and “occurred intentionally or with reckless disregard.”

      The Court will permit Seigal to testify about insurance industry standards and why he believes American Family deviated from those standards in this case. He may also “testify generally about his understanding of the law and how it impacts his understanding of the standards that govern the insurance industry.”

      But Seigal may not testify about whether American Family acted unreasonably, in bad faith, or knowingly or recklessly. Nor may he opine about American Family’s legal obligations and whether it complied with them.

      4. Opinions About Litigation Conduct

      Finally, American Family sought to exclude opinions in Seigal’s report about American Family’s conduct during this litigation. For instance, Seigal stated that American Family’s “claim manual was provided on the eve of the Plaintiff’s expert report being due.” Seigal also opined that based on his review of the Parties’ discovery disclosures, “there appears to be redactions that were taken which are routinely disclosed in cases like this one.” American Family contended that Plaintiff has not shown sufficient facts to permit admission of these opinions under Rules 702 and 403. 

      However, Plaintiff only made the cursory argument that Seigal’s opinions about American Family’s litigation conduct are based on industry standards and grounded in factual obligations. This does not explain why American Family’s attorneys’ discovery practices are probative of American Family’s alleged bad faith in handling Plaintiff’s claim. Nor is it clear to the Court that Seigal’s discovery-related opinions are based on industry standards.

      Held

      The Court granted in part and denied in part American Family’s motion to exclude or limit the testimony of Brian Seigal pursuant to Rule 702.

      Key Takeaway:

      Seigal’s methodology boils down to explaining the applicable industry standards, reviewing the facts of the case, and analyzing whether American Family’s claim-handling practices complied with Seigal’s understanding of the industry standards. Consequently, courts routinely find that such a methodology is reliable for an insurance industry expert. 

      Courts also routinely preclude experts from opining about whether an insurer acted reasonably or unreasonably in the handling of an insured’s claim. As a result, Seigal may not testify about whether American Family acted unreasonably, in bad faith, or knowingly or recklessly. Nor may he opine about American Family’s legal obligations and whether it complied with them.

      Case Details:

      Case Caption: Lucia Family Trust V. American Family Mutual Insurance Company S.I.
      Docket Number: 1:23cv2156
      Court Name: United States District Court, Colorado
      Order Date: September 25, 2025
    5. Experts Attempted to Present Legal Opinions Disguised as Industry Standards

      Experts Attempted to Present Legal Opinions Disguised as Industry Standards

      Defendants 1536 Blue Jay Way, LLC and Michael Herman (collectively, Blue Jay Way) have brought claims against Defendant LMID, Inc. and others for negligence and negligence per se related to the renovation of a high-end home.

      Plaintiff Travelers has been defending its insured, Defendant LMID, Inc. (LMID), in state court since June 2020.

      Travelers has brought this action seeking: (1) a declaration that it has no duty to defend LMID in the state court action; (2) a declaration that it has no duty to indemnify LMID; and (3) reimbursement for defense costs incurred.

      In January 2025, LMID and Blue Jay Way each disclosed an expert witness under Federal Rule of Civil Procedure 26(a)(2).

      LMID’s expert, Joseph Oliva, is an attorney whose practice focuses on insurance coverage disputes. Oliva was asked to provide an opinion on “whether the allegations [in] the complaint and/or extrinsic evidence (discovery) . . . constitutes an occurrence under California insurance industry standards and whether the claims against [LMID] fall within the scope of the definition of property damage.” In his report, he concludes that the claims against LMID fell within the terms of the policy and that Travelers is obligated to defend and indemnify in the underlying action. Blue Jay Way’s expert, Peter Schulz, is also an attorney with experience in insurance coverage matters. Schulz’s opinions relied on Oliva’s analysis and his review of Oliva’s report.

      However, Travelers filed a motion to exclude Oliva’s and Schulz’s testimony.

      Insurance Expert Witnesses

      Joseph Oliva is an attorney licensed and admitted to practice before all courts of the states of California, Texas, Arizona, and Nevada. He is a shareholder of the law firm of Joseph Oliva & Associates, P.C.

      Oliva has been retained as an expert on sixteen matters, provided testimony on four matters, three of which were California arbitrations and one Arizona State Court action.

      Get the full story on challenges to Joseph Oliva’s expert opinions and testimony with an in-depth Challenge Study. 

      Peter Schulz is an attorney at law, duly licensed and admitted to practice before all courts of the states of California. He is the sole shareholder of the law firm of Schulz Brick & Rogaski, APC.

      Schulz has taught in seminars attended by attorneys, brokers, and insurance claims adjusters in California. In 2023, he was a lecturer in a program sponsored by The Seminar Group entitled “Insurance in the Construction Industry,” where he presented on Cumis/Civil Code Section 2860 – Practical considerations for policy holders and for carriers.

      Want to know more about the challenges Peter Schulz has faced? Get the full details with our Challenge Study report. 

      Discussion by the Court

      Travelers moved to exclude Oliva’s and Schulz’s testimony on two grounds. First, it argued that the experts are not qualified to testify about insurance industry standards because they are attorneys who have never worked in the insurance industry itself. Second, Travelers contended that the experts’ opinions are improper legal conclusions. While the reports refer to “insurance industry standards” and “insurance industry practices,” Travelers contends that the experts’ opinions are in fact legal conclusions that rely on legal analysis.

      As an initial matter, the Court rejected Travelers’ overbroad argument that Oliva and Schulz are unqualified to opine on insurance industry standards because they are insurance lawyers.

      The fact that Oliva and Schulz are attorneys does not mean that they could not have acquired the requisite expertise to testify about insurance industry standards.

      But this motion is less about qualifications and more about the subject of the proffered opinions. Oliva and Schulz did not offer opinions on insurance industry standards that would assist the trier of fact; rather, they attempted to present legal opinions disguised as industry standards—much of it amounting to little more than legal briefing.

      Nowhere in the reports do the experts explain how their conclusions are based on their experiences or specialized knowledge from litigating insurance cases. Though the reports refer to some nonlegal materials—e.g., insurance bulletins and pamphlets—the Court held that those references appear to be intertwined with the experts’ legal analysis.

      It is unclear how the experts would be able to excise any legal analysis from their testimony, or how any nonlegal opinions would be based on their specialized knowledge from litigating insurance cases.

      Held

      The Court granted Plaintiff Travelers Casualty Insurance Company of America’s motion to exclude the testimony of experts Joseph Oliva and Peter Schulz.

      Key Takeaway:

      Basically, Oliva’s and Schulz’s reports engage in legal analysis, assessing cases and industry materials and applying the law to the facts of this case. In doing so, Defendants have not demonstrated that is it more likely than not that the experts’ knowledge “will help the [Court] to understand the evidence or to determine a fact in issue.”

      Case Details:

      Case Caption: Travelers Casualty Insurance Company Of America V. Lmid, Inc. Et Al
      Docket Number: 2:24cv1022
      Court Name: United States District Court, California Central
      Order Date: April 18, 2025
    6. Insurance Expert Witness Barred from Testifying as to which Party is at Fault

      Insurance Expert Witness Barred from Testifying as to which Party is at Fault

      This case involves an accumulator universal life insurance policy purchased by Dr. Herbert Wiegand in 2000 when he was 82 years old. The insured was his second wife, Jean Wiegand (nee Walters), who was 80 years old at the time. The policy had a face value (death benefit) of $1.4 million and a maturity date of June 12, 2020. The original owner of the policy was an LLC Dr. Wiegand set up for the benefit of his children from his prior marriage. Dr. Wiegand paid an initial premium which guaranteed coverage for five years. The policy carried a cash value, which fluctuated as a function of interest the policy earned, less the ongoing cost to maintain the insurance policy.

      Breach of Contract Claim

      Dr. Wiegand died in 2002, approximately two years after purchasing the policy. After Dr. Wiegand’s death, the Policy’s ownership transferred to his revocable trust which he set up for the benefit of all of his children. Plaintiffs are two of Dr. Wiegand’s adult children who serve as trustees of the trust.

      Dr. Wiegand’s initial premium payment kept the policy in force for 16 years after purchase until 2016 with no subsequent premiums being paid. Ms. Weigand, however, lived past her 100th birthday until November of 2020, surviving the policy’s maturity date by more than four months. Plaintiffs had no knowledge of Ms. Wiegand’s health condition or status from which they could have assessed whether to maintain or surrender the Policy. 

      They raised a breach of contract claim based on New York Life’s alleged failure to send them annual statements at their attorney’s address instead of the original address listed on the policy—the residence of Dr. Wiegand and Ms. Wiegand, the insured. Plaintiffs claimed their damages were equal to the cash value of the policy as it existed in 2012—four years prior to the policy lapse. They asserted that they would have exercised their option to surrender the policy for a cash disbursement had New York Life sent them annual statements at their attorney’s address.

      Plaintiffs moved to exclude Defendant’s expert, Charles W. Bowden from testifying under Rule 702 and Daubert standards because his report allegedly lacked relevant expert opinions bearing on the ultimate factual issue in this case.

      Insurance Expert Witness

      Charles W. Bowden has more than 40 years of experience as an independent life, health and disability insurance agent/ broker. He holds two insurance industry recognized certifications, Chartered Life Underwriter (CLU) and his Chartered Financial Consultant (ChFC). His specialties and experience include business continuity planning, using all forms of business life and disability insurance. He has extensive experience in Whole Life, Universal Life and Variable Life in the Business Markets selling COLI, Business Continuity Planning. Group Term Life Insurance and Group Disability and all types of group Health care coverage.

      In addition to his practice in estate and business continuity planning, Charlie is a Qualified Continuing Education Instructor, and assists other licensed insurance professionals to keep current with the ever-changing structure of the insurance and investment marketplace using financial and estate planning strategies. Charlie uses his extensive experience to provide expert testimony in legal matters brought to courts around the country and he is a frequent radio guest. Charlie is a member of the South Jersey Chapter of The Society for Financial Service Professionals, as well as a past member of their Board of Directors.

      Discussion by the Court

      Bowden offered opinions on the following three topics:

      1. Why was the life insurance policy able to continue from 2000, the effective date of the policy without continuing premium payments?
      2. Why was the policy initially held in the Family LLC and subsequently moved to the revocable trust?
      3. What are the administrative issues that allowed the policy to lapse prior to the death of the insured?

      Plaintiffs argued that Bowden’s conclusions were merely recaps of factual points discussed in his report, his opinions were lay opinions, and it set out an opinion that was irrelevant in a breach of contract case. Further, Plaintiffs argued that Bowden’s opinions were in reality legal argument, which was not appropriate. Defendants argued that Bowden’s opinions were proper as industry standards could provide assistance to the fact finders.

      Industry practices or standards may be relevant in insurance cases, and the Eighth Circuit has upheld the admission of opinion testimony addressing whether an insurance company handled a claim properly under industry standards.

      The Court allowed Bowden to explain industry standards regarding policy updates and the like but barred him from giving his legal opinion as to which party was at fault.

      Held

      The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Defendant’s expert, Charles W. Bowden.

      Key Takeaway:

      1. Legal Conclusion: Considering an expert “may not intrude on the Court’s role to instruct the jury as to the law and testify to a legal conclusion,” the Court did not allow Bowden to give his legal opinion as to which party was “at fault.”
      2. Relevance of Industry practices or standards in insurance cases: The Eighth Circuit has upheld the admission of opinion testimony addressing whether an insurance company handled a claim properly under industry standards.

      Case Details:

      Case Caption: Wiegand Et Al V. New York Life Insurance & Annuity Corporation Et Al
      Docket Number: 4:22cv188
      Court: United States District Court, Missouri Eastern
      Order Date: March 26, 2024