United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART DEFENDANT'S FOURTH MOTION
KAYS, UNITED STATES DISTRICT COURT CHIEF JUDGE
case arises out of an insurance coverage dispute. Plaintiff
Sunflower Redevelopment, LLC (“Sunflower”)
undertook a project to remediate the former Sunflower Army
Ammunition Plant (“Plant”) in order to develop it
for commercial purposes. After insurer Defendant Illinois
Union Insurance Co. (“ILU”) refused to indemnify
Sunflower for certain expenses, Sunflower sued for
declaratory judgment and breach of contract.
before the Court is ILU's fourth motion in limine (Doc.
219). For the following reasons, ILU's motion is granted
seeks to preclude Sunflower from introducing three categories
of evidence and argument: (1) that ILU is responsible for
Sunflower ceasing to work on remediating the Plant from 2011
to the present; (2) Sunflower's future costs are
“past damages”; and (3) Sunflower's
remediation project will fail if ILU does not provide
Sunflower with insurance coverage.
The motion to exclude evidence and argument that ILU is
responsible for Sunflower ceasing work at
the Plant is denied.
ILU seeks to exclude evidence and argument that it is to
blame for Sunflower ceasing work at the Plant starting in
2011 because this evidence is improper and prejudicial. ILU
argues Sunflower never raised this argument during discovery
and only first took the position that the reason it ceased
work at the Plant due to ILU's coverage position after
the close of discovery, creating an unfair prejudice to ILU.
Rule of Evidence 403 permits exclusion of otherwise relevant
evidence if “its probative value is substantially
outweighed by the danger of one or more of the following:
unfair prejudice, confusing the issues, or misleading the
jury . . . .” A district court has broad discretion to
assess unfair prejudice. U.S. v. Henderson, 416 F.3d
686, 693 (8th Cir. 2005). Evidence is unfairly prejudicial
when “it tends to suggest a decision on an improper
basis.” Wade v. Haynes, 663 F.2d 778, 783 (8th
Cir. 1981), aff'd sub nom. Smith v. Wade, 461
U.S. 30 (1983).
essentially argues, this evidence is unfairly prejudicial
because it was a surprise theory of recovery sprung on them
on the eve of trial. However, in reviewing the deposition
testimony, Sunflower's fact witnesses state the project
was stopped because Sunflower was unable to pay certain
contractors and allude that the reason for Sunflower's
inability to pay was due to the remediation costs exceeding
projected estimates and that Sunflower was unable to obtain
insurance coverage. Based on this, the Court cannot find that
Sunflower has sprung a new theory of recovery causing an
unfair prejudice to ILU or that this evidence would suggest
the jury base its decision on an improper basis. The motion
The motion to preclude Sunflower from converting its claim
for future costs into a claim for past
damages is denied.
ILU attacks Sunflower's damages demand. ILU's theory
is that Sunflower is seeking “future damages” or
consequential damages, which it did not specifically plead,
and raised for the first time at the close of discovery.
is seeking approximately $41 million in damages for
remediation costs it contracted with ILU to pay under the
Premises Pollution Liability Policy (“PPL
Policy”). Sunflower responded to ILU's First Set of
Interrogatories with a reference to a report detailing the
remediation costs it was seeking coverage for. Sunflower
explains its damages are costs related to remediation work
already performed and costs related to remediation work that
must be, but has not yet been, performed. ILU argues that
because Sunflower has not actually incurred these costs, they
are future or consequential damages, which Sunflower failed
insuring agreement states: “[ILU] agrees to pay on
behalf of [Sunflower] for claims, remediation costs, and
associated legal defense expenses, in excess of the
self-insured retention, arising out of a pollution condition
[at the Plant].” PPL Policy (Doc. 206 at 135) (internal
quotation marks omitted).
Kansas law, “[d]irect damages refer to those which the
party lost from the contract itself - in other words, the
benefit of the bargain - while consequential damages refer to
economic harm beyond the immediate scope of the
contract.” Penncro Assocs., Inc. v. ...