Appeals from the Superior Court of the District of Columbia No. CA-2945-02 Hon. Neal E. Kravitz, Trial Judge.
The opinion of the court was delivered by: Thompson, Associate Judge
Before WASHINGTON, Chief Judge, and REID and THOMPSON, Associate Judges.
Marshall Coyne, the owner and president of closely-held Madison Management Corporation ("Madison"), was the insured under a $1 million accidental death policy that Madison purchased from AIG Life Insurance Company ("AIG") through Madison's broker, Aon Risk Services ("Aon"). On August 24, 1999, Mr. Coyne, who was 88 years old at the time, fell while walking across a street and broke his hip. On March 16, 2000, 205 days after his fall, Mr. Coyne died. Madison filed an accidental death claim with AIG.
AIG investigated the cause of Mr. Coyne's death but, on February 26, 2001, ultimately denied Madison's claim on the ground that, under the accidental death policy, benefits could be paid only if the death resulting from an accident occurred within 180 days after the accident, i.e., within a 180-day "incurral period." Thereafter, Madison and the Coyne estate (which hereafter we refer to together as "Madison") sued, claiming that Aon, whose insurance brokerage business entailed procuring appropriate insurance policies on behalf of its clients, was professionally negligent and breached its contract with Madison by failing to procure for Mr. Coyne an accidental death policy whose terms included the industry-standard 365-day incurral period. A jury found in favor of Madison and awarded damages of $1 million. Madison then requested that the trial judge enter an award of prejudgment interest, but the court denied that request. Both parties appealed.
Aon argues that it was prejudiced by a number of evidentiary rulings by the trial court and by certain comments that the trial court made to or in the presence of the jury. It asks this court to vacate the verdict and judgment, and to order that it be afforded a new trial. Madison argues that the trial court erred in denying its request for prejudgment interest. We deal with each of the arguments in turn and, for the reasons set out below, affirm.
I. The Court's Evidentiary Rulings and Instructions
Aon argues that Dr. James Lewis should not have been permitted to testify for Madison and that Aon was unfairly prejudiced by Dr. Lewis's testimony, by statements that the trial court made about Dr. Lewis, and by the trial court's ruling precluding Aon from reading into evidence certain deposition testimony by an AIG department head. The pertinent factual background is as follows.
Dr. Lewis is an osteopath/forensic pathologist whom AIG retained to review Mr. Coyne's medical records and to advise AIG as to whether Mr. Coyne's death was caused by his fall and hip injury. In the course of his work, Dr. Lewis consulted with Dr. R. Bruce Heppenstall, an orthopedic surgeon. Dr. Lewis issued a report to AIG stating that the cause of Mr. Coyne's death was "complication of hip fracture" and that the manner of death was "accidental."
AIG also consulted with its attorneys, who advised it that the Employee Retirement Income Security Act of 1974 ("ERISA") applied to Madison's employee accidental death plan; that, under ERISA, AIG was required to adhere to the plan documents; and that because Mr. Coyne survived 25 days longer than the policy's 180-day incurral period, his death was not an eligible loss and AIG therefore should deny Madison's claim. In a letter to Madison dated February 26, 2001, AIG did deny the claim on that basis.
During the pre-trial discovery period, when Madison disclosed its witness list to counsel for Aon, it included Drs. Lewis and Heppenstall (and counsel for Aon subsequently deposed them). After Madison again listed them (as "fact witnesses who happen to be experts") in its portion of the parties' Joint Pretrial Statement, Aon filed a motion in limine seeking to preclude the two doctors from testifying. Aon argued that their testimony would be irrelevant because AIG did not rely on their opinions in denying Madison's claim. Aon also argued that permitting the two doctors to testify would be prejudicial to Aon because their testimony would leave the jury with the erroneous 4 impression that AIG agreed with the two doctors' reports as to the cause of Mr. Coyne's death and considered the death to be accidental (whereas in fact, Aon contends, upon resolving Madison's claim on the basis that Mr. Coyne's death occurred outside the policy incurral period, AIG did not complete its investigation into the cause of Mr. Coyne's death and never decided the issue of causation). Aon argued in addition that the doctors' testimony would amount to expert testimony that should be precluded because the doctors' opinions as to the cause of Mr. Coyne's death lacked a sufficient factual foundation to be considered competent evidence.
The court denied Aon's motion in limine, and Madison called Dr. Lewis to testify at trial. As he was about to testify, the court made the following remarks to the jury: "Just so the jury understands, Dr. Lewis is going to be permitted to testify about his review of medical records in this case and to testify also about whatever opinions he reached in making his report to the insurance company, but he's not been hired as an expert witness by one side or the other." Dr. Lewis testified about the findings he made for AIG. He also testified that AIG had retained him to render opinions on cause of death "hundreds of times" and had never rejected any of his opinions. Dr. Heppenstall did not testify, but, during re-direct examination, Dr. Lewis read a portion of Dr. Heppenstall's deposition testimony into the record including Dr. Heppenstall's statement that "it appears that the fall that this patient experienced and the injury to his hip resulted in gradual deterioration and eventual demise."
Aon sought to read into the record certain deposition testimony by Myra Zimmerman, the manager of AIG's Accidental Death & Dismemberment department, to show that AIG did not rely 5 on Dr. Lewis's and Dr. Heppenstall's opinions. Ms. Zimmerman testified in her deposition that she "was not comfortable that the fracture played a causative role in [Mr. Coyne's] death," that from her "review of the claim, [she] would have gotten more medical opinions . . . [f]rom a cardiologist or geriatrics specialist," and that AIG could have denied the Madison claim on medical causation grounds notwithstanding the opinions of Drs. Lewis and Heppenstall. The court precluded Aon from reading the testimony into evidence, observing that Ms. Zimmerman testified as to her hindsight views, and ...