Preview:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

EMPIRE LUMBER CO., a Washington corporation, d/b/a KAMIAH MILLS, Plaintiff, vs. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, an Indiana corporation and a division of the ILM Group, THE ILM GROUP, and JOHN DOES I to V, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 3:10-CV-00533-REB MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S DAUBERT MOTION TO EXCLUDE TESTIMONY OF ANDY SHEMCHUK (Docket No. 83)

Currently pending before the Court is Defendant's Daubert Motion to Exclude Testimony of Andy Shemchuk (Docket No. 83). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order: I. BACKGROUND On November 4, 2008, a catastrophic fire destroyed buildings, equipment, and machinery at Plaintiff Empire Lumber Company's ("Empire Lumber") sawmill in Weippe, Idaho. Defendant Indiana Lumbermens Mutual Insurance Company ("ILM") had issued a policy to Empire Lumber to cover such losses. This is a bad faith lawsuit, which primarily concerns the valuation of certain property destroyed in the fire and the handling of Empire Lumber's claim for such losses under the policy. However, Empire Lumber also contends that ILM's alleged mishandling of its loss claim was so egregious that a claim for punitive damages is justified.

MEMORANDUM DECISION AND ORDER - 1

Relevant here, in support of its effort to add a claim for punitive damages, Empire Lumber attached (1) the September 2, 2011 Affidavit of Andy Shemchuk (Docket No. 21, Att. 7), and (2) the July 19, 2012 Supplemental Declaration by Andy Shemchuk (Docket No. 78, Att. 2) (collectively the "Shemchuk materials"). Part and parcel with its objection to Empire Lumber's argument in favor of punitive damages, ILM objects to the Shemchuk materials, arguing that the testimony contained therein: "(1) seeks to define for the Court and the jury what the law is; (2) offers legal conclusions as to compliance with, or violations of, particular statutes; (3) offers legal conclusions as to the meaning and application of the insurance contract; (4) offers inadmissible conclusions characterizing the behavior and actions of certain witnesses and of ILM; (5) purports to evaluate the credibility of other witnesses, and to weigh the evidence offered by those witnesses; and (6) otherwise is merely cumulative with that of other fact witnesses." See Mem. in Supp. of Daubert Mot. to Exclude, pp. 2-3 (Docket No. 83, Att. 1). II. DISCUSSION A. ILM's Motion as an Objection to Empire Lumber's Motion to Amend Preliminarily, the undersigned primarily views ILM's dispute with the Shemchuk materials as largely another piece of ILM's objection to Empire Lumber's attempt to add a punitive damages claim

Download 110.pdf

Idaho Law