Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02073-WDM-KLM

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Filed 12/27/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.03-CV-02073-WDM-PAC ROBERTA PULSE, TONYA. HOUSE, Plaintiffs, v. THE LARRY H. MILLER GROUP, Defendant. _____________________________________________________________________ PLAINTIFFS' REPLY IN SUPPORT OF THIRD MOTION IN LIMINE ______________________________________________________________________ Plaintiffs request this Court to enter an Order in Limine ruling admissible the Larry H. Miller Group Royal & Sun Alliance Management Assurance Policy and state as follows: 1. By its terms, FED.R.EVID 411 permits admission of evidence of insurance

against liability when offered for a purpose other than liability, such as proof of agency, ownership, or control. See FED.R.EVID 411; See also, Conde v. Starlight I, Inc., 103 F.3d 210, 214 (1st Cir. 1997)(Rule 411 permits evidence of insurance coverage, not to prove negligence, but collaterally for other purposes); Pinkham v. Burgess, 933 F.2d 1066, 1072 (1st Cir. 1991) ("Rule 411 itself contemplates that evidence that the defendant was insured may be admissible on issues other than negligence."); Charter v. Chleborad, 551 F.2d 246, 248 (8th Cir. 1977)(evidence of witness' employment by insurance company admissible to show bias), cert. denied, 434 U.S. 856 (1977).

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2.

In this case, The Royal & Sun Alliance Management Assurance Policy

("Defendant's Policy") is not offered for the issue of whether the Defendant acted negligently or otherwise wrongfully. Instead, it is offered as proof of agency, ownership, or control, as Rule 411 expressly permits. 3. One of the issues in this case is whether The Larry H. Miller Group is a

"single employer"/"integrated enterprise" under the 4-factor test applied by Magistrate Judge Coan in her recommendation against summary judgment, set forth in Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1184 (10th Cir. 1999)(1) interrelation of operations; 2) centralized control over labor relations; 3) common management; and 4) common ownership or financial control"). Plaintiffs also may prove liability under the agency theory. Frank v. U.S. West, 3 F.3d 1357,1362 (10th Cir. 1993). 4. Defendant's Policy is relevant to the issue of common ownership or First, it names "The Larry H. Miller Group of Companies" as the

financial control.

"parent company." See Ex. 1, attached, p. 2. Second, Defendant's Policy names as subsidiaries inter alia: 1) Landcar Management, Ltd. (Corporate management in Utah); and 2) Lawrence H. Miller & Karen G. Miler and Landcar Management d/b/a Larry Miller Toyota (Auto dealership in Colorado). See Ex. 1, p. 11. The Defendant Larry H. Miller Group is the d/b/a for Landcar Management Ltd., a named insured. See Id., and Ex. 2, Certificate of Fact. 5. Defendant put its corporate existence, ownership, and control squarely at This only

issue by its repeated denials of its existence, ownership, and control.

confirms the relevance of Defendant's Policy, which tends to make the existence of 2

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these facts more probable than it would be without admission of the Defendant's Policy. See FED.R.EVID. 401. 6. Additionally, Defendant's policy is relevant to determining the total number It tends to show the

of employees for purposes of interrelation of operations.

interrelation of operations by providing a "Total Automotive" Employee Count, which lists and includes all of the Larry H. Miller Group auto dealerships, and it shows a "Grand Total" of all employees for the Larry H. Miller Group of Companies. The jury should be permitted to evaluate this evidence for the purposes of establishing both parental control and interrelation of operations. 7. Although Defendant contends that this evidence would "improperly

influence the jury" by referencing "non-party companies," and could "cause the jury to speculate as to financial status and size and the legal status of and relationships between non-parties," the Defendant's size and legal status are squarely at issue in this case. Moreover, there are less onerous ways to protect against these concerns, including Defendant's own jury instruction to prevent potential bias, instructing the jury that all parties are to be treated equally under the law. Alternatively, certain portions of the policy relating to the amount of coverage could be redacted, so that the relevant portions relating to ownership, control, and interrelation of operations can be presented. 8. When weighing the probative value under Rule 403 against Defendant's

perceived concern that the jury will learn that it is a big company, the probative value of Defendant's policy weighs more heavily in favor of admission of the evidence.

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9.

Rule 403 does not exclude evidence because it is strongly persuasive or

compellingly relevant ­ the rule only applies when it is likely that the jury will be moved by a piece of evidence in a manner that is somehow unfair or inappropriate. In re Air Crash Disaster, 86 F.3d 498, 538 (6th Cir. 1996). As the United States Sixth Circuit Court of Appeals has aptly noted: "The truth may hurt, but Rule 403 does not make it inadmissible on that account." Id. For these reasons, Plaintiffs respectfully ask this Court to rule admissible Defendant's Larry H. Miller Group Royal Sun & Alliance Management Assurance Policy attached as Exhibit 1. Dated this the 27th day of December, 2005.

RESEPECTFULLY SUBMITTED, Kimberlie K. Ryan s/ Kimberlie K. Ryan for Ryan Law Firm, LLC 283 Columbine St. #157 Denver, CO 80206 Tele: (303) 355-0639 Fax: (303) 355-3020 E-mail: [email protected] Whitney C. Traylor W.C. Traylor & Associates, LLC 700 E. 24th Ave., #1 Denver, Colorado 80205 Office: (303) 321-1862 Fax: (303) 837-1214 Email: [email protected] ATTORNEYS FOR PLAINTIFFS 4

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CERTIFICATE OF SERVICE I certify that on the 27th day of December, 2005, I electronically filed the Plaintiffs' Reply in Support of Third Motion in Limine with the Clerk of Court using the CM/ECF system, which will send notification to the following addresses to counsel of record; Judy Holmes, [email protected] Steven M. Gutierrez, [email protected] Christopher M. Leh, [email protected]

s/ Kimberlie K. Ryan

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