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BREEZY POINT COOP. v. CIGNA PROP. & CAS. CO.

October 5, 1994

BREEZY POINT COOPERATIVE, INC., Plaintiff, against CIGNA PROPERTY AND CASUALTY COMPANY, Defendant.


The opinion of the court was delivered by: JOHN R. BARTELS

 The plaintiff Breezy Point Cooperative, Inc. ("Breezy Point") moves for an order precluding introduction and use at trial of testimony by defendant's proposed expert, Marvin Greenspan, Esq., and the transcript of a telephone conversation between one of defendant's employees and plaintiff's assistant general manager, recorded on or about August 8, 1991 (the "August 1991 Conversation"). For the reasons set forth below, the Court grants plaintiff's motion to preclude the testimony of defendant's expert, but denies that portion of the motion seeking to exclude the transcript of the August 1991 Conversation.

 BACKGROUND

 On July 8, 1989, Breezy Point personnel discovered William Lang unconscious in the water near his boat, a short distance from the plaintiff's shoreline. Breezy Point did not notify CIGNA of the incident until August 9, 1991, more than two years later, when it forwarded to CIGNA copies of the summons and complaint in a state court personal injury action commenced by Lang against plaintiff on or about July 22, 1991 (the "Lang Action"). In September 1991, CIGNA issued to Breezy Point a notice of disclaimer, denying coverage and refusing to defend Breezy Point in the Lang Action on the basis that plaintiff's two-year delay in notifying CIGNA of the precipitating incident did not constitute timely notice under the terms of the applicable policy.

 On July 4, 1990, Jason Sammut was injured off the shores of Breezy Point when he dove into the water from a structure owned by the United States Army. After receiving information that Sammut planned to institute a personal injury action naming Breezy Point as defendant, plaintiff first notified CIGNA of the incident and the likelihood of the Sammut suit on or about August 7, 1991. Sammut commenced a state court action on October 16, 1991 (the "Sammut Action"), at which time Breezy Point forwarded to CIGNA copies of the summons and complaint. On November 21, 1991, CIGNA issued to Breezy Point a notice of disclaimer, denying coverage and refusing to defend the Sammut Action on the basis that plaintiff's year-long delay in notifying CIGNA of the Sammut incident violated the terms of the applicable policy.

 Breezy Point moved for partial summary judgment, seeking an order requiring CIGNA to defend the Sammut Action. CIGNA cross-moved, arguing that, as a matter of law, Breezy Point's untimely notices vitiated the applicable policies and thus relieved defendant of its duty to defend and indemnify plaintiff in both actions. In a decision dated January 13, 1993, the Honorable I. Leo Glasser denied the cross-motions, holding that whether Breezy Point reasonably believed that it was not liable for the Lang and Sammut injuries and whether any such good faith belief justified plaintiff's delay in notifying CIGNA raised issues of fact precluding summary judgment. Plaintiff now moves for an order excluding the August 1991 Conversation and precluding introduction of testimony by defendant's expert.

 DISCUSSION

 I. Admissibility of Proposed Expert Testimony

 Plaintiff urges this Court to exclude the testimony of defendant's proposed expert, Marvin Greenspan, Esq., on the grounds that the proffered testimony impermissibly draws legal conclusions and invades the province of both the judge and jury. Plaintiff contends that defendant seeks improperly to have Mr. Greenspan testify that: any delay by Breezy Point in reporting the Lang and Sammut incidents was unreasonable; plaintiff's alleged failure to provide timely notice violated the terms of the insurance policies and Section 3420(a)(4) of the New York State Insurance Law; and Breezy Point has no reasonable excuse for its delay in notifying CIGNA.

 This court "has broad discretion in the matter of admission or exclusion of expert evidence" such as that proffered by Mr. Greenspan. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S. Ct. 1119, 1122, 8 L. Ed. 2d 313 (1962). Accord F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1257 (2d Cir. 1987). Indeed, the Federal Rules of Evidence expressly vest within the sound discretion of the trial judge the decision of whether to admit expert testimony. Fed. R. Evid. 703.

 
Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach. . . . They also stand ready to ...

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