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50. Should the court allow the supervisor's testimony?
The agent's supervisor plans to testify that the company issues thousands of policies through its agents each year and that it is the routine practice of those agents to discuss supplemental policy options with each customer. The woman's attorney has objected to this proffered testimony.
The woman sued the insurance company for breach of contract, claiming that when the agent sold her the policy, he did not notify her, as was legally required, that she would have to purchase a supplemental policy to cover the house's contents. At trial, the woman testified that the agent had not provided the required notice.
A woman bought a homeowner's insurance policy from an insurance company through one of its agents. One year later, a fire completely destroyed the woman's house and its contents, and she learned that the policy covered the cost of rebuilding the house but not the cost of replacing the contents.
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A is incorrect. Under FRE 406, evidence of an organization's routine practice is admissible to prove that on a particular occasion the organization acted in accordance with that practice. The fact that the woman, an eyewitness, claims that the practice was not followed in her case does not affect the admissibility of this evidence. Instead, it creates a factual issue for the jury.
B is incorrect. To constitute habit evidence, an organization's practice need not be «automatic» but only routine, something that is regularly done. The supervisor's testimony here is that the agents' regular practice is to discuss supplemental policy options with customers.
C is incorrect. Character evidence is not admissible in civil cases to prove conduct. See Fed. R. Evid. 404(a) and (b). This evidence is admissible only if it is evidence of an organization's routine practice under FRE 406.