Motion in Limine is Used to Resolve Liability Issue
‘Creative’ Device Helps In Tort Case
By BAINBRIDGE D. TESTA
A recent decision indicates that lawyers on both sides of a civil case benefited by the “creative” use of a motion in limine that cleared up an issue of liability rather than merely an evidentiary matter.
In ITT Sheraton Corporation, et al. v. Flatley, Superior Court Judge Judith Fabricant conditionally agreed to rule on a disputed indemnification provision of a franchise license agreement — ultimately ruling that the hotel franchise owner would have to show more than 50 percent responsibility for a hotel guest’s injury rather than a mere 1 percent.
Alan R. Hoffman, the lawyer for the individual franchise owner, said he was glad to have this issue resolved prior to trial.
“Both sides felt it would assist in their evaluation of the case and trial preparation to have a ruling on the indemnification clause,” he said.
With discovery complete and the case scheduled for trial in January 2003, the parties stipulated at the pre-trial conference that they would not seek further consideration of the issue from the trial judge if Fabricant would decide it.
They retained the right to challenge her ruling through a motion for reconsideration or single justice appeal.
The indemnification-clause issue was actually one that the parties unsuccessfully tried to resolve before a different judge earlier in the case.
Flatley, the individual franchise owner, had filed a motion for partial summary judgment that Superior Court Judge Allan van Gestel denied.
Van Gestel also denied Sheraton’s cross-motion for summary judgment, which raised disputed factual issues in addition to the contract interpretation issue.
The disputed contract language attempted to spell out what degree of fault by Sheraton for a guest’s bodily injury would permit Flatley to escape his indemnification obligation under the license agreement.
Sheraton had contributed $1.5 million to settle a claim brought by a hotel guest who was rendered quadriplegic when he fell from a wall on the hotel property run by Flatley.
Although Fabricant decided the issue in Sheraton’s favor (ruling that Flatley would have to show more than 50 percent responsibility for the hotel guest’s injury rather than a mere 1 percent), her willingness to revisit the previously presented legal question “was a very helpful approach,” said Hoffman.
Hoffman said Flatley has not decided how he will respond to the unfavorable ruling.
A Useful Tool
Katharine P. Costello, co-counsel for Sheraton, said “presenting the dispute through cross-motions in limine essentially allowed a second look at an important issue in the case.”
She suggested: “We think that offering to be bound by the judge’s decision [at the trial court level] is what got her to agree to decide it.”
Liam J. Vesely of Boston, who was not connected to the case, called the move “an excellent use of judicial resources.”
He said that “unfortunately, Superior Court judges don’t have the resources that they used to, and I hate to say it, but it’s a lot easier to deny a motion for summary judgment than to write a decision.”
Vesely noted that “this is a much more efficient way of handling a case. The court doesn’t feel rushed by getting a flurry of motions in limine on the morning of trial and doesn’t have to shoot from the hip.”
Michael C. Najjar of Lowell agreed: “I’d rather know how the court is going to rule on an issue before I have to go through all the work of preparing the client and getting ready for trial.”
Joseph J. Laferrera of Boston said, “I think it’s an absolutely wonderful and creative use of a motion in limine. What it offers is an opportunity to focus on a very specific issue of law that both parties would like decided in advance.”
And using a motion in limine as the parties did in Sheraton may not be just a way of getting a second bite at the apple, Laferrera said.
“A motion for summary judgment might not be appropriate where, for example, the question goes to one of the elements of a claim, but won’t resolve the claim entirely.”
He said “you’re only going to get summary judgment when a claim can be decided for or against a party. But on a motion in limine you can surgically approach an isolated legal issue.”
Be Selective
Although pre-trial rulings can reduce preparation time and promote settlement, some lawyers say there are times when a party may not want an early decision.
“For example, a personal injury plaintiff who thinks he may lose on summary judgment has a much better chance of negotiating a settlement” without a pre-trial decision on liability, Vesely explained.
Likewise, an automobile insurance company is more likely to have its low-ball settlement offer snatched up before a judge or mediator tells the plaintiff how strong his case is, said Najjar.
Another instance where a motion in limine might not help is in a consumer protection action where the contract is ambiguous, said Douglas K. Sheff of Boston.
“There are a lot of shades to what the parties intended when the contract was drafted,” he said.
“Leaving it to a judge on summary judgment is one-dimensional,” said Sheff. “I’d rather have a jury full of consumers with varied backgrounds decide, particularly where a lot of these contracts are made air tight by a corporate attorney.”
Marylin A. Beck of Dedham said not just lawyers, but judges also may be selective in their use of motions in limine to decide substantive, non-evidentiary issues.
“The judge may feel that it’s better to see how the trial unfolds before ruling on motions in limine,” said Beck. “As I’ve tried more cases, I can see that maybe a judge doesn’t have a full enough view of the case until it’s further along.”
Lawyers may also encounter reluctance by one judge to revisit issues already considered by the judge who heard the summary judgment motion, said Beck.
“However, there’s no hard and fast rule that says one Superior Court judge can’t hear the same motion for summary judgment that another previously ruled on.
”Debra K. Mayfield of Boston explained that a second look might be warranted because “during discovery a lot of things can change. The court should be looking at the issues throughout the trial preparation process.”
Of concern “is that a party can cause delay by potentially getting four bites at the apple through a motion to dismiss, and then motions for summary judgment, in limine and ultimately for directed verdict,” Mayfield said.
“The process can be abused, like any other,” she cautioned.
