United States District Court, D. Minnesota
A. Magnuson United States District Court Judge
matter is before the Court on the parties' Motions in
Limine. Trial in this matter is set to begin on Monday,
December 4, 2017.
HPAI as a naturally occurring material
moves the Court for an order precluding Defendant from
claiming that highly pathogenic avian influenza
(“HPAI”) is a naturally occurring material,
arguing that the naturally occurring material exception in
the insurance policy is ambiguous as a matter of law.
Defendant opposes the Motion.
Court previously held that fact issues precluded a legal
determination on the applicability of the naturally occurring
material exclusion. (Docket No. 146.) Plaintiff's Motion
is, in effect, dispositive. And in denying the parties'
cross-motions for summary judgment, the Court held that this
exclusion was not ambiguous. The Motion will therefore be
denied, and the parties should be prepared to establish
whether the exclusion for naturally occurring materials
applies and whether the HPAI virus spread to Plaintiff's
facilities as a result of human activity.
Layer hen replacement cost and USDA indemnity
asks the Court to preclude any testimony or evidence
“relating to (1) the costs it would have incurred to
replace or repopulate its egg-laying hens in the normal
course of business at any point after the euthanizations, and
(2) any indemnity payments or reimbursement it received from
the USDA.” (Pl.'s Mot. in Limine (Docket No. 233).)
Defendant previously moved for partial summary judgment on
this issue, arguing in part that the cost to repopulate
Plaintiff's layer hens is not a “remediation
cost” under the policy because Plaintiff replaces layer
hens in the normal course of its business. (Docket No. 178.)
This Court rejected that argument, concluding that Defendant
“ignores that [Plaintiff] had to significantly expedite
its replacement cycle due to the forced euthanization,
replacing some birds almost twice as rapidly as
normal.” (Order at 7.) This Court also declined to give
the remediation-cost provision such a limited reading because
Defendant could have drafted it to exclude the cost of
replacing “damaged property that might have eventually
required replacement” if it so desired. (Id.
argues again that Plaintiff will receive a windfall because
it would have replaced some or all of the euthanized hens
regardless of the HPAI outbreak. But the Court has already
rejected Defendant's argument that Plaintiff's cost
to repopulate its layer hens is not a remediation cost, and
Defendant has identified no other basis for the Court to
conclude that evidence of the cost to repopulate
Plaintiff's laying hens in the normal course of business
also argues that evidence that Plaintiff received indemnity
payments from the USDA is relevant because it was germane to
the opinion of Defendant's expert, Matthew Woodcock. But
Defendant fails to identify any basis for the Court to
conclude such evidence is relevant to the issues at trial,
other than quoting Woodcock's references to the USDA
indemnity payments in his expert report. This Motion will be
Testimony on insurance policy construction
moves the Court for an order precluding Plaintiff from
eliciting testimony on the construction of its insurance
policy. Plaintiff does not intend to offer any such
testimony. The Motion will therefore be denied as moot.
Availability of avian influenza endorsements or
asks the Court to preclude Plaintiff from advising the jury
as to the availability of avian influenza endorsements or
exclusions. Plaintiff does not intend to advise the jury on
this issue. The Motion will therefore be denied as moot.
Defendant's initial bases ...