Opinion
Civil Action No. 03C-12-168-JOH.
Submitted: August 10, 2007.
Decided: September 7, 2007.
Upon Motion of Defendant for Clarification — DENIED.
Bernard A. van Ogtrop, Esquire, of Seitz van Ogtrop Green, P.A., and James J. Woods, Esquire, of W ilmington, Delaware, attorneys for plaintiffs.
Sherry R. Fallon, Esquire, of Tybout Redfearn Pell, and Daniel V. Folt, Esquire, of Duane Morris, LLP, Wilmington, Delaware, attorneys for defendant.
MEMORANDUM OPINION
Defendant State Farm has moved for "clarification" of two portions of this Court's decision of August 3, 2007. It claims it needs clarification of the Court's ruling involving the proffered testimony of Dr. Alan Fink and its ruling regarding the testimony of Francis Jones, Esquire.
Dunlap v. State Farm Fire and Casualty Co., 2007 WL 2390682 (Del.Super.).
Applicable Standards
Motions for reargument cannot be used to raise new arguments. Nor can such motions be used to raise matters or arguments that could have been raised prior to the Court's earlier opinion. "Reargument will usually be denied unless it is shown the Court overlooked a precedent or some principle that would have a controlling effect or misapprehended the law or facts in a way that would have affected the outcome."
Plummer v. Sherman, 2004 WL 63414 (Del.Super.).
Id.
Norfleet ex rel. Norfleet v. Mid-Atlantic Realty Co., Inc., 2001 WL 989085 (Del.Super.), quoting Monsanto Co. v. Aetna Cas. and Sur. Co., 1993 WL 563251 (Del.Super.).
Discussion Clarification Regarding Dr. Fink
In its earlier ruling, this Court stated the following about State Farm's tender of testimony from Dr. Fink:
The Dunlaps move to preclude any trial testimony of Dr. Allan Fink. They assert several grounds for this motion: (1) Dr. Fink is a neurologist without qualification in handling insurance claims; (2) Dr. Fink cannot competently opine about any issue of (covenant breach) prejudice to State Farm; (3) Dr. Fink used "reasonable medical certainty" not "reasonable medical probability"; and (4) he cannot properly comment on Dr. Crowley's report. Portions of the Dunlaps motion have merit, but the motion raises potential additional issues. There is one argued ground to preclude Dr. Fink's testimony, if proffered, that lacks merit. That ground is that preclusion is required because Dr. Fink uses the phrase "to a reasonable degree of medical certainty." Contrary to the Dunlaps' contention that this standard differs from "reasonable medical probability," the two phrases are interchangeable.
The Dunlaps are correct to argue that Dr. Fink lacks the qualifications to opine about how to handle an insurance claim. He is competent to opine about the meaning of the medical records supplied to State Farm. But he is without the expertise to opine how a reasonable insurance company would have processed the claim based on the records which were supplied. Keeping in mind that the jury will make the ultimate "reasonableness" determination, based on the partial records supplied, Dr. Fink could not properly testify (1) whether State Farm should have sought an IME at some point, (2) if so, when, and (3) once Shalk's letter made State Farm's adjuster aware of the Crowley letter, whether it should have insisted on a medical doctor's report, or fall back to an IME.
Perhaps there is no competent expert to opine on what State Farm should or should have done at the various stages of this matter. But respectfully to Dr. Fink, he is not that expert.
It is unclear at this point how or when State Farm would intend to use Dr. Fink. The Court is, therefore, reluctant to overstate or overly limit, at this stage, his potential testimony.
Dunlap v. State Farm, Infra p. 1.
In seeking clarification, State Farm does not argue that the Court overlooked any facts, law, or precedent. It says that it will show Dr. Fink the medical records of Anne Dunlap that James Woods, Esquire, supplied to it. It would then ask Dr. Fink "if he would be able to form a medical diagnosis for Anne Dunlap based on those records."
State Farm Motion for Clarification, p. 1.
State Farm asserts it is not going to call Dr. Fink as an insurance practices expert and it will not ask him any questions on what it should or should not have done at the time.
The Court is mystified about why clarification is needed of its prior ruling. It is irrelevant as the Court noted before, what Dr. Fink, or any other similarly qualified physician, has to now say about what those records mean. The issue for trial is not the reasonableness of State Farm's current actions, but the reasonableness and good faith, or lack thereof, regarding the DART matter and the records supplied from the inception of the Dunlap's claim up to its decision to pay the one million dollars in 2002. State Farm chose not to get Dr. Fink or any other physician during that relevant time frame. Why? All Dr. Fink would presumably do is offer irrelevant after-the-fact rationalization. In doing so he would not only be offering irrelevant testimony, his testimony would invade the province of the jury.
This Court has, to an extent, told State Farm the areas of expertise which are relevant. There is absolutely no basis to further explain or "clarify" its earlier decision on Dr. Fink.
Clarification Regarding Francis Jones, Esquire
State Farm again asserts no factual or legal matter which this Court overlooked or any misapprehension of facts or law when it denied State Farm's motions concerning the potential testimony of Francis Jones, Esquire.
In this Court's earlier opinion, it recited how Mr. Jones was ensnared in this dispute. The Court explained how his involvement has relevance to the issue of State Farm's reasonableness, i.e., whether it did or did not breach the covenant of good faith and fair dealing.
State Farm sought to bar Jones' testimony, period. There was little or no argument before that the Dunlaps had failed to answer any interrogatories about what evidence he might offer. The Court now directs State Farm's attention, again, to Colin Shalk's letter to Maude Niedzielski, State Farm's adjuster on this matter. The Court quoted it twice in its earlier decision. No more be said.
The Court is similarly mystified by State Farm's reargument assertion about uncertainty of what Jones might say. That was not State Farm's prior assertion. It sought a total bar. Lacking getting that, it wanted access to all of Jones' file. The Court addressed that motion, too.
There is no need for clarification regarding Jones. It was not necessary to say that as things unfold regarding Jones' testimony other issues might then arise requiring the Court's attention. This case is not at that point.
Conclusion
For the reasons stated herein, defendant State Farm's motion for clarification is DENIED.
IT IS SO ORDERED.
Defendant State Farm has moved to reargue the portion of this Court's opinion of August 3, 2007 sua sponte disqualifying its counsel, Daniel Folt, from further participation in this case.
Dunlap v. State Farm Fire and Casualty Co., 2007 WL 2390682 (Del.Super.).
In sum, State Farm argues this Court's disqualification decision lacks the necessary detail and reasoning to warrant that step. It seeks to compare Folts' conduct to that of Woods. State Farm had previously moved to disqualify Woods as Dunlaps' counsel on two independent grounds. One he was to be an important witness. The other was his conduct vis a vis the previously assigned judge in this case. It was Woods' role as a key witness that mandated his removal. The Court did not disqualify him on any action involving that judge. State Farm seeks now in its reargument motion to compare Folts' conduct to Woods inappropriate conduct. That argument in its way demonstrates the fundamental problem of both counsel, Folt and Woods, to which this Court alluded in its decision.
That problem was that the words used in arguments, primarily briefing, had reached an intense, palpable animosity, to a degree where detached professional judgment was potentially compromised. While both counsel are competent and otherwise professional, the atmosphere in this case, as said before, had become too poisoned to permit this Court to allow it to proceed.
And with the denouncement of this case, trial, now looming, the Court was also concerned how much those personal feelings might manifest themselves to a jury. A part of that concern was the interaction of Woods and Folt when Woods testified.
In addition, there is a need for professional detachment in the evaluation of a case. The parties deserve that and the rules of conduct mandate it. The Court was concerned enough about this, too, to consider it as a factor here.
Finally, however, the Court declines to supplement the above or the reasons given in its original decision. The Court sees no need to list them in a judicial opinion and compound the problem.
Conclusion
For the reasons stated herein, defendant State Farm's motion to reargue the Court's decision to disqualify Daniel Folt, is DENIED.
IT IS SO ORDERED.