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David Welsh v. Newman International Transport

November 16, 2011

DAVID WELSH, PLAINTIFF,
v.
NEWMAN INTERNATIONAL TRANSPORT, INC., DEFENDANT.



ORDER

This matter comes before the Court on Defendant's Motion to Strike David Welsh as an Expert Witness and to Preclude Testimony of David Welsh (Doc. # 64) filed on October 21, 2011. In response, Plaintiff filed a Memorandum of Law in Opposition to Defendant's Motion to Strike David Welsh as an Expert Witness and to Preclude Testimony of David Welsh (Doc. # 72) on October 27, 2011. Prior to the filing of Defendant's Motion to Strike (Doc. # 64), Plaintiff and Defendants both filed their Motion(s) in Limine (Doc. # 55 and # 56, respectively) on September 26, 2011. Subsequently, Defendant filed its Opposition to Plaintiff's Motion in Limine (Doc. # 65) on October 21, 2011. Plaintiff did not file a response to Defendant's Motion in Limine. These Motions are now ripe for review.

FACTS

This case concerns a dispute over reimbursement for damage to private property -- namely two vehicles -- sustained while being transported in interstate commerce. In January 2010, Plaintiff David Welsh hired Defendant Newman International Transport to transport two classically restored vehicles, a 1969 Ford Mustang and a 1970 Dodge Challenger, to automobile auctions in Arizona from Alva, Florida. (Pl. Am. Compl. ¶¶ 7, 12). Defendant issued Plaintiff Bills of Lading for the transport of the vehicles. (Pl. Am. Compl. ¶¶ 8, 13). The two vehicles were damaged in transit, Pl. Am. Compl. ¶ 24, and were shipped back to Florida for repair by Plaintiff. (Pl. Am. Compl. ¶ 26).

On February 2, 2010, Plaintiff sent Defendant correspondence notifying it of a claim. (Doc. # 43-3, Pl. Ex. C). In the letter, Defendant requested "prompt payment for repairs as well as [reimbursement] for money spent to be at auctions." (Doc. # 43-3, Pl. Ex. C). The letter spelled out requests and justifications for $6,113.00, and indicated that Plaintiff expected the cars to sell for "75-100,000 [dollars] each" at auction. (Doc. # 43-3, Pl. Ex. C). During a phone conversation on February 26, 2010, Plaintiff and Defendant's insurer negotiated a settlement amount of $14,191.00, and a check was issued to Plaintiff for that amount, with "settlement for 69 Mustang & 1970 Challenger" printed on the back. (Doc. # 43-6, Pl. Ex. F). The Plaintiff subsequently deposited the check, after endorsing it and adding the word "repairs," to read "settlement for 69 Mustang & 1970 Challenger repairs" under his signature. (Doc. # 43-6, Pl. Ex. F) (emphasis added).

On March 1, 2010, Plaintiff sent Defendant a letter which indicates that Plaintiff did not consider his claim settled and which threatened legal action. (Doc. # 43-4, Pl. Ex. D). On March 2, Defendant's insurer sent a proposed Release which would have released all claims against the Defendant, whether for repairs or diminution in value damages. Plaintiff did not sign this Release. (Doc. # 43-5, Pl. Ex. E).

The cars were both eventually sold at auction in Palm Beach, Florida, on April 3, 2010. (Doc. # 43-1, Pl. Ex. A). At auction, the Mustang sold for $51,700, and the Challenger sold for $68,200.00. (Doc. # 37-1, Def. Ex. A). Plaintiff received less than he desired for each vehicle, and brought a claim seeking to recover the amount he thought the vehicles would have sold for at the no reserve auction. Plaintiff seeks general damages for the alleged "diminution in value" of the two vehicles in an amount of approximately $99,000.00. (Doc. # 37 at 4).

DISCUSSION

Defendant's Motion to Strike David Welsh as an Expert Witness and to Preclude Testimony of David Welsh (Doc. # 64)

In support of his claim for damages resulting from diminution in value, Plaintiff seeks to introduce himself as an expert witness at trial. Defendant objects, on the basis that expert witness disclosure was untimely, unjustified, and will cause severe prejudice. In its Motion to Strike (Doc. # 64), Defendant moves this Court to strike Plaintiff Welsh as an expert witness for "Plaintiff's failure to (1) timely identify Mr. Welsh as an expert witness, and (2) to disclose the opinions and basis for his testimony" in violation of Fed. R. Civ. P. 26(a)(2). As grounds, Defendant states that "Plaintiff's untimely and inadequate disclos[ure] of David Welsh as an intended expert witness has no justification and severely prejudices Defendant." Defendant further states that Plaintiff "failed to meet the barest requirement that the opinions and the basis for the opinions be disclosed."

In response, Plaintiff filed its Memorandum of Law in Opposition to Defendant's Motion to Strike (Doc. # 72) and stated that he has no objection "[t]o the extent that Defendant's Motion seeks to exclude Mr. Welsh from testifying as an expert witness based on his late disclosure."*fn1

However, Plaintiff claims that he is entitled to testify as to the value of the subject vehicles in this lawsuit, whether he is qualified as an expert or not. Accordingly, as the Plaintiff has already conceded to Defendant's claim that disclosure of expert witnesses was untimely under Fed. R. Civ. P. 26(a)(2), the Court will address Plaintiff's second contention concerning Mr. Welsh's right to testify on the value of the subject vehicles at trial.

It is well settled law, that an owner of property is qualified to render an opinion as to the value of that property at trial. Berkshire Mut. Ins. Co. v. Moffett, 378 F.2d 1007, 1011 (5th Cir. 1967); Gregg v. U.S. Indus. Inc., 877 F.2d 1462, 1469 (11th Cir. 1989); Electro Services, Inc. v. Exide Corp., 847 F.2d 1524, 1526-27 (11th Cir. 1988); Flagstar Bank v. A.M. Hochstadt, 2010 WL 5476733 at *5 n. 5 (S.D. Fla. Dec. 30, 2010); Caten v. Salt City Movers & Storage Co., Inc., 149 F.2d 428, 433 (2d Cir. 1945); Brooks Transp. Co. v. McCutcheon, 154 F.2d 841, 843 (D.C. Cir. 1946). It is equally well settled that the owner of the property need not be qualified as an expert to render an opinion as to the value of his/her personal property. See Caten, 149 F.2d at 433 (holding that in an interstate transport damage case, testimony by the property owners regarding the value of their personal property was admissible and said owners did not need to be qualified as experts to render the opinion). Courts have also held, "[t]he general test that anyone familiar with the values of personal property in question may testify, is liberally applied.[t]he owner of an article, whether he is generally familiar with such values or not, must certainly to be allowed to estimate its worth; the weight of his testimony.may be left to the jury." Barrett v. Fournial, 21 F.2d 298 (2d Cir. 1927).

The Court finds in accordance with the above cited case law that Plaintiff, as the previous owner of the two subject vehicles, is entitled to render his opinion at trial as to the value of the two subject vehicles. Furthermore, Plaintiff need not be qualified as an expert in order to render his opinion as to the value of the property. In applying the test liberally, the Court finds that Plaintiff may give his testimony as a lay witness concerning the value of the vehicles. Thus, the Court will grant the Defendant's Motion to Strike (Doc. # 64) insofar as Plaintiff's disclosure of expert witnesses was untimely. However, the Court will deny the ...


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