Travelers Property Casualty Company of America v. All-South Subcontractors, Inc.
Filing
63
ORDER denying 45 Motion in Limine; granting in part and denying in part 46 Motion for Summary Judgment. Signed by District Judge William H. Steele on 4/13/2018. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
)
)
)
Plaintiff,
)
)
v.
)
)
ALL-SOUTH SUBCONTRACTORS, INC., )
)
Defendant.
)
CIVIL ACTION 17-0041-WS-B
ORDER
This matter comes before the Court on Defendant All-South Subcontractors, Inc.’s
Motion to Exclude Testimony from Charles Whitley (doc. 45) and Defendant All-South
Subcontractors, Inc.’s Motion for Summary Judgment (doc. 46). Both Motions have been
extensively briefed and are now ripe for disposition.
I.
Background.1
A.
1
Nature of the Case.
The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Smith v. LePage, 834 F.3d 1285, 1296 (11th Cir. 2016) (“It is not this Court’s function to
weigh the facts and decide the truth of the matter at summary judgment. … Instead, where there
are varying accounts of what happened, the proper standard requires us to adopt the account most
favorable to the non-movants.”) (citations and internal quotation marks omitted). Thus, for
purposes of the Motion for Summary Judgment, plaintiff’s evidence is taken as true and all
justifiable inferences are drawn in its favor. Also, federal courts cannot weigh credibility at the
summary judgment stage. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.
2013) (“Even if a district court believes that the evidence presented by one side is of doubtful
veracity, it is not proper to grant summary judgment on the basis of credibility choices.”).
Therefore, as to the Motion for Summary Judgment, the Court will “make no credibility
determinations or choose between conflicting testimony, but instead accept[s] [Travelers’]
version of the facts drawing all justifiable inferences in [Travelers’] favor.” Burnette v. Taylor,
533 F.3d 1325, 1330 (11th Cir. 2008).
On the evening of May 2, 2016, a heavy rainstorm swept through southwestern Alabama.
Such weather events are not uncommon in this area; indeed, an oft-cited statistic crowns Mobile,
Alabama as the rainiest city in the United States. Nonetheless, this weather event was
significant. During the storm, the roof of a warehouse building owned by non-party Thompson
Tractor Company in Spanish Fort, Alabama collapsed. The roof collapse damaged not only the
warehouse structure, but also the Caterpillar tractor parts inventory stored inside. Thompson’s
insurer, plaintiff Travelers Property Casualty Company of America, investigated the loss and
ultimately paid out over $1 million in insurance benefits to Thompson.
As subrogee under the applicable insurance policy, Travelers, standing in the shoes of its
insured, filed suit against defendant All-South Subcontractors, Inc., to recover the insurance
proceeds paid to Thompson. Travelers’ theory is that All-South is responsible for Thompson’s
roof collapse because All-South had performed re-roofing services on that building in 20092010, and had responded to a service call from Thompson for a roof leak in 2014. Travelers’
Complaint (doc. 1) pleads the following claims against All-South: (i) negligence and negligence
per se, alleging that All-South failed to exercise reasonable care in performing work on the
Thompson roof (Count I); (ii) negligent misrepresentation, alleging that All-South falsely
represented to Thompson the work that it would perform, as well as the standard and end results
of that work (Count II); (iii) breach of contract, alleging that All-South breached its contract with
Thompson by failing to inspect, maintain, repair and/or replace the subject roof as agreed (Count
III); and (iv) breach of express and implied warranties, alleging that Thompson breached a 15year express warranty on the subject roof, breached the promises and warranties contained in its
advertising materials, and breached implied warranties of fitness and merchantability under
Alabama law (Count IV).
Following the close of discovery, All-South filed a Motion for Summary Judgment,
arguing that legal and/or factual defects in each of Travelers’ causes of action entitle All-South
to entry of judgment in its favor. Notably, in seeking summary judgment on Count I
(negligence), All-South relies heavily on its contention that the opinions proffered by Travelers’
structural engineering expert, Charles E. Whitley, P.E., must be excluded, and that in the absence
of Whitley’s opinions no reasonable finder of fact could determine that All-South breached a
duty of care owed to Thompson. In furtherance of that argument, All-South filed a separate
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Motion to Exclude Testimony from Charles Whitley, which forms the starting point of this
Court’s analysis given its central importance to All-South’s Rule 56 Motion.
B.
The Opinions of Charles Whitley.
After being retained by Travelers and conducting a site inspection of the Thompson
warehouse on May 12, 2016 (ten days after the roof collapse), Whitley authored a written expert
report dated May 16, 2016. In that document, Whitley recited measurements and calculations
concerning the drainage capacity of Thompson roof (which, based on the size of the drain
openings and a 100-year hourly rainfall total of 4.5 inches, totaled 1,726 square feet of roofing
for each of the six drains), as compared to the minimum drainage requirements of the 2009
International Plumbing Code (which Whitley calculated at 2,236.8 square feet of roofing for
each of the six drains). On that basis, Whitley opined, “The calculations of the required drain
sizes showed that the drains on the roof did not meet the requirements of the 2009 IPC.” (Doc.
48, Exh. U, at 2.) In that same report, Whitley observed that “[t]here were no overflow drains in
the south side parapet wall,” and that “[t]he lack of overflow drains is a violation of the 2009
IPC.” (Id. at 3.) Whitley’s May 2016 report concluded, “The improper sizing of the roof drains
and the lack of overflow drains are code violations that contributed to, and may be the sole cause
of, the damage to the structure.” (Id.) He also noted the need for a weather analysis to determine
whether excessive rainfall might have been a contributing factor.
Whitley prepared a brief follow-up report on July 12, 2016, addressing the specific issue
of whether corrosion discovered in a column near the center of the south wall of the warehouse
structure and in structural steel members over the loading dock may have contributed to the roof
collapse. (Doc. 54, Exh. B.) In the July 2016 report, Whitley explained that, after review of
photographs and other information provided by Thompson, his opinion was this question was
properly answered in the negative. In particular, Whitley reasoned, the corroded structural
members were along the west face of the loading dock, but (i) “the west face of the loading dock
is structurally independent of the warehouse,” and (ii) “there was no collapse of the loading
dock.” (Id. at 2.) As for the corroded column near the center of the south wall, Whitley
observed that “columns near the center of the south wall were intact and in their original position
after the collapse,” so as to warrant a conclusion that “[w]ith the corroded column located in an
area that was intact, the corrosion of the south wall column played no role in the collapse.” (Id.)
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On July 31, 2017, Whitley completed a more comprehensive written report on the
Thompson roof collapse. The July 2017 report described in considerable detail the configuration
of the roof and its drainage features both prior and subsequent to the All-South re-roofing project
of January 2010. Whitley went on to explain in the July 2017 report the basis for his conclusion
(gleaned from review of applicable codes as well as his understanding of the specific tasks
performed by All-South) that All-South’s work on the Thompson roof was governed by, and
subject to, the 2006 and 2009 International Plumbing Code. (Doc. 48, Exh. Q, at 3-5.)2 The July
2017 report also set forth the grounds for Whitley’s conclusion, based on review of the
International Plumbing Code and calculations of the drainage capabilities, that the roof’s
drainage capacity after All-South’s work in January 2010 did not comport with the Code. (Id. at
5-8.) As part of that analysis, Whitley opined that the drain inserts installed by All-South had
reduced the drainage capacity of the subject drains by 9%. (Id. at 8.) In Whitley’s view, “the
reduction of the size of the downspouts created by the installation of the inserts is a violation of
the intent of” the Plumbing Code. (Id. at 8-9.) Whitley’s July 2017 report also observed that the
drain strainers installed by All-South did not extend the requisite four inches above the roof
surface, and that “[t]he lack of a strainer that extended not less than four inches above the roof
surface is a code violation.” (Id. at 9.) Whitley further reiterated his previous conclusion that
“[w]hen All-South designed and installed the roof drainage system at the facility, they were
required by the 2006 and 2009 IPC to install secondary or emergency roof drains,” but they
failed to do so. (Id.)
In sum, Whitley’s July 2017 report documented four distinct violations of the Plumbing
Code (i.e., insufficient drainage capacity, improper reduction in drainage capacity, insufficient
strainers, and lack of secondary drains) that were embodied in All-South’s re-roofing project of
January 2010. The conclusion of the July 2017 report was succinctly set forth as follows: “The
above listed code violations resulted in an accumulation of water on the roof of the facility. The
2
In part, Whitley reasoned as follows: “The work done by All-South replaced 100
percent of the original roofing system, and replaced all but one component, the down spouts, of
the original drainage system. … Based on the scope of the work that was done in the recovering
of the existing roofing, All-South designed and installed a roof drainage system at the facility.
With All-South having designed and installed a roof drainage system, according to the
requirements of the 2006 and 2009 IBC, the work done by All-South in 2010 should have
complied with the requirements of the 2006 and 2009 IPC.” (Id. at 5 (emphasis added).)
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accumulation of water on the roof overloaded the structural system, resulting in the observed
damage to the structure.” (Id. at 10.)
II.
All-South’s Motion to Exclude Travelers’ Expert Whitley.
In a multi-pronged Motion to Exclude, All-South contends that Whitley’s proffered
opinions should be barred under Daubert principles. Specifically, All-South asserts that Whitley
is not qualified to testify about structural load/capacity of the Thompson warehouse, code
compliance, or causes of the roof collapse; that Whitley’s methodology lacks the requisite
reliability to assist the trier of fact; and that Whitley cannot testify about the applicable standard
of care in the roofing industry.
A.
Legal Standard.
The Federal Rules of Evidence, as construed by the Supreme Court in the landmark case
of Daubert v. Merrell Dow Pharaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993), “require[] expert scientific evidence to be both reliable and relevant pursuant to Rule
702,” such that it “appropriately assists the trier of fact.” United States v. Henderson, 409 F.3d
1293, 1302 (11th Cir. 2005). In that regard, “[t]he court serves as a gatekeeper, charged with
screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the
issue at hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). “The
proponent of the expert testimony carries a substantial burden under Rule 702” to show
admissibility by a preponderance of the evidence. Cook ex rel. Estate of Tessier v. Sheriff of
Monroe County, Fla., 402 F.3d 1092, 1107 (11th Cir. 2005); see also Boca Raton Community
Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (“The offering
party must show that the opinion meets the Daubert criteria, including reliable methodology and
helpfulness to the factfinder …, by a preponderance of the evidence.”).
As a general proposition, “[i]n determining the admissibility of expert testimony under
Rule 702, a district court considers whether (1) the expert is qualified to testify competently
regarding the matter he intends to address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a fact in issue.” United States
v. Douglas, 489 F.3d 1117, 1124-25 (11th Cir. 2007); see also Knight through Kerr v. MiamiDade County, 856 F.3d 795, 808 (11th Cir. 2017) (similar). “While there is inevitably some
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overlap among the basic requirements – qualification, reliability, and helpfulness – they remain
distinct concepts and the courts must take care not to conflate them.” Rosenfeld v. Oceana
Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (citation omitted).
Courts have emphasized that “[t]he rules relating to Daubert issues are not precisely
calibrated and must be applied in case-specific evidentiary circumstances that often defy
generalization.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). Moreover, a
district court’s gatekeeper role “is not intended to supplant the adversary system or the role of the
jury.” United States v. Alabama Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013) (citations
omitted). Even in the aftermath of Daubert, “vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Id. (citations omitted). “[I]n
most cases, objections to the inadequacies of a[n opinion] are more appropriately considered an
objection going to the weight of the evidence rather than its admissibility.” Id. (citations
omitted). Thus, disagreements as to the manner in which an expert performs an analysis may
best “be aired out in front of the jury and tested by the crucible of cross-examination,” without
implicating the Daubert gatekeeping function. Tampa Bay Water v. HDR Engineering, Inc., 731
F.3d 1171, 1185 (11th Cir. 2013).
B.
Challenge to Whitley’s Qualifications.
As the first ground for its Motion to Exclude, All-South maintains that “Whitley is not
qualified to testify competently” about matters of building load/capacity, code compliance, or
causation of the roof collapse. (Doc. 45, at 4.) Certainly, before an expert’s opinions may be
admitted, “the expert must be qualified on the matter about which he intends to testify.” Hughes
v. Kia Motors Corp., 766 F.3d 1317, 1329 (11th Cir. 2014). The Eleventh Circuit has explained
that “experts may be qualified in various ways, including by scientific training, education, and
experience.” Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir. 2016) (citation and
internal quotation marks omitted).
Notwithstanding the manner in which this objection is framed, All-South identifies no
factual basis for questioning Whitley’s qualifications to testify about these particular matters. To
the contrary, All-South concedes that “generally Whitley’s education, training and experience as
being a professionally licensed structural engineer would qualify him to testify as to his analysis
and resulting opinions as to structural roof issues.” (Doc. 45, at 6.) All-South goes on to clarify
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that its objection is to Whitley’s “failure to perform even the basic evaluations, measurements,
calculations and testing – or, stated otherwise, his complete failure to use any methodology.”
(Id.) That is a reliability/methodology objection, not a qualifications objection. As noted supra,
these are distinct concepts in the Daubert analysis which must not be conflated. This objection
is also redundant of the methodology challenge presented in a separate section of All-South’s
Motion. As such, defendant’s objection purporting to allege that Whitley is not qualified to
render opinions in this case is overruled, and that aspect of the Motion to Exclude is denied.
C.
Challenge to Whitley’s Methodology.
Over a 12-page span, All-South’s Motion to Exclude identifies multiple respects in which
it contends that “[t]he methodology by which Charles Whitley reaches his conclusions is not
sufficiently reliable under Daubert and his testimony will not assist the trier of fact.” (Doc. 45,
at 7.) The “reliability” prong examines “whether the reasoning or methodology underlying the
testimony is scientifically valid and … whether that reasoning or methodology properly can be
applied to the facts in issue.” Seamon, 813 F.3d at 988 (citation omitted). In determining
whether an expert’s methodology is reliable, courts consider “(1) whether the expert's
methodology has been tested or is capable of being tested; (2) whether the technique has been
subjected to peer review and publication; (3) the known and potential error rate of the
methodology; and (4) whether the technique has been generally accepted in the proper scientific
community.” Id. (citations omitted). However, this list is not exhaustive, and “the trial judge
must have considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Knight, 856 F.3d at 809 (citation omitted). At
all times in this flexible inquiry, the court’s focus must be “solely on principles and
methodology, not on the conclusions that they generate.” Seamon, 813 F.3d at 988 (citation
omitted).
As an initial salvo, All-South contends that Whitley’s opinion that All-South was
responsible for the roof collapse was reached during his initial telephone call with Traveler’s
claims adjuster on May 10, 2016. According to All-South, Whitley formed this opinion “without
performing any investigation or analysis” and “did not consider other possible causes.” (Doc.
45, at 7.) The deposition testimony runs directly to the contrary. Indeed, Whitley testified that,
as to causation of the roof collapse, he “had not made any determination on May 10, 2016.”
(Whitley Dep. (doc. 48, Exh. D), at 60-61.) Although All-South says that Whitley wrote on a
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form on May 10, 2016 “Cause (work in 2010),”3 Whitley’s testimony was exceedingly clear that
he had not reached any determinations as to cause on that date, that his notation on the form was
simply “referencing work that was done in 2010 as something to be considered,” and that he
considered other potential causes “as the investigation was done.” (Whitley Dep., at 62.) Given
the clarity of Whitley’s explanation, All-South cannot exclude his opinions on the theory that “it
is abundantly clear” Whitley reached a final causation opinion “without performing any
investigation or analysis” and that he “did not consider other possible causes.” (Doc. 45, at 7.)
At trial, defendant is free to cross-examine Whitley about the form and the meaning of particular
notations.
Next, All-South faults Whitley for failing to undertake “to determine the correct
applicable building code,” and cites Whitley’s acknowledgment in his deposition that
“[d]epending on what code the county is using, it could make a difference.” (Doc. 45, at 8;
Whitley Dep., at 71.) Defendant is correct that Whitley’s analysis revealed uncertainty as to
whether the 2006 or the 2009 iterations of the International Building Code or the International
Plumbing Code were applicable. Indeed, in his July 2017 report, Whitley noted that if the
Thompson warehouse were located in Spanish Fort, Alabama, then the 2009 Codes applied as of
January 2010, but that if it were located in an unincorporated area of Baldwin County, then the
2006 Codes governed. (Doc. 48, Exh. Q, at 3.) Whitley’s July 2017 report analyzed code
compliance under both the 2006 and the 2009 iterations of the Codes, finding no pertinent
differences between the two. (Id. at 3-10.)4 On this showing, there is no reason to believe that
the reliability of Whitley’s opinions is diminished one whit by his failure to isolate whether the
2006 or the 2009 versions of the Codes applied, because his analysis was performed with
reference to both and was unchanged either way.
3
This form, which All-South describes as a “case opinion form” and Travelers
terms a “case opening form,” does not appear to have been furnished to the Court by either side
in briefing the Daubert Motion.
4
Indeed, Whitley observed in his July 31 report that, as between the 2006 and 2009
versions of the Codes, “[t]he terminology of both codes listed below is the same” in all material
respects. (Id. at 3.) All-South has pointed to no language in the codes suggesting that Whitley’s
analysis or conclusions might have been materially impacted had he focused exclusively on the
2006 iterations of the Codes and excluded the 2009 Codes as inapplicable, as All-South contends
he should have done.
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All-South also criticizes the methodology underlying Whitley’s opinion that corrosion
did not cause the roof collapse, saying that Whitley failed to take physical measurements of the
corrosion or perform any tests on the corroded steel. (Doc. 45, at 9-12.) Defendant is correct
that Whitley did not physically measure the corroded structures; indeed, he readily admitted that
omission, and explained that “didn’t feel a need to” take such measurements in forming his
causation opinions. (Whitley Dep., at 103-04.) Nonetheless, All-South’s argument falters
because it identifies no evidence or reasoning as to why Whitley’s failure to quantify corrosion
undermines the reliability of his methodology. Notably, All-South’s own structural engineer,
Marc Barter, offered opinions as to the impact of corrosion on the roof collapse based solely on
“[t]he appearance of the column,” without taking measurements because he decided “it was not
feasible.” (Barter Dep. (doc. 54, Exh. F), at 90, 271, 273.)5 Just because Whitley could have
taken measurements does not mean that he must do so in order to offer opinions to a reasonable
degree of structural engineering certainty as to the role (if any) played by corrosion in the
Thompson roof collapse.
Whitley testified that he was aware of corrosion to one column in an area where collapse
occurred, but his opinion was that this corrosion did not cause the collapse because of “the
timing of the collapse, the nature of the collapse, the fact that there were two separate areas of
collapse.” (Whitley Dep., at 104, 122.) He elaborated on his reasoning in his written report of
July 12, 2016. (Doc. 54, Exh. B.) In preparing that report, Whitley “reviewed the location
where the corrosion had occurred, … the photographs provided, … [and] previous information
on the reports.” (Whitley Dep., at 113.) The Court understands that All-South vigorously
disputes Whitley’s conclusion, but the proper Daubert inquiry focuses “solely on principles and
methodology, not on the conclusions that they generate.” Seamon, 813 F.3d at 988 (citation
omitted). Based on the evidence presented, it appears that site inspections and review of
photographs is an appropriate, reliable methodology utilized by both sides’ structural engineering
5
A fair summation of Barter’s testimony on this point is that he believed corrosion
“did weaken one of the columns” in the Thompson warehouse, that “there was other corrosive
steel in that building” that Barter believed had no impact, and that any attempt to quantify those
determinations “would have been a difficult proposition” that he did not undertake, in any event.
(Id. at 305-06.)
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experts in forming opinions as to corrosion’s impact on the roof collapse. The Court will not
disallow this aspect of Whitley’s opinions as unreliable.6
All-South’s Motion also takes Whitley to task for not calculating the volume of water on
the roof at the moment of collapse. (Doc. 45, at 13-16.) For example, All-South argues that,
“Unbelievably, Whitley admits he reached his conclusions as to … the cause of the roof collapse
without performing any calculations as to water volume or weight.” (Id. at 14.)7 Movant is
correct that Whitley did not calculate the weight or volume of water on the Thompson warehouse
roof at the time of collapse. (Whitley Dep., at 158, 161, 165, 196.) Travelers’ rejoinder is
straightforward, to-wit: No such calculations are needed because both sides are in agreement that
the roof collapse was caused by the accumulation of water on the roof. That statement of the
6
There appears to be a fundamental disagreement between the experts as to
whether one badly corroded column was located at the specific failure point or not. That dispute
does not appear to stem from divergent methodology that might require judicial intervention on
Daubert review, but is rather the product of different structural engineers using similar
methodology to reach different results. Under the circumstances, both competing expert
opinions are properly submitted to the jury for consideration. In its Daubert Motion, All-South
makes much of its contention that “Whitley visited the warehouse site on three occasions and
still chose not to take the measurements,” whereas defense structural engineer Barter “was not
allowed additional access to the site to complete his investigation of the structural members ….”
(Doc. 60, at 5.) This argument misses the point for Daubert purposes. Whitley and Barter both
formed opinions about the role of corrosion in the roof collapse. Both used similar methodology
in forming those opinions. That fact undercuts All-South’s argument that Whitley’s
methodology is not reliable. It makes no difference whether Whitley and Barter used the same
methodology by choice or out of necessity. If Barter was able to form reliable corrosion
opinions based on examination of photographs and limited physical inspection of the site, then
that circumstance suggests a likelihood that Whitley could do so as well. See generally Clena
Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 663-64 (S.D. Fla. 2012) (“While
EFI’s methodology is not dispositive on the question of the sufficiency of Calitu’s process,
where EFI and Calitu – both engineers – undertook essentially the same process for evaluating
the cause of damage to the Property, that fact does suggest that the methodology enjoys at least
some acceptance in the engineering community.”).
7
Variations of this theme abound in All-South’s Motion. (See doc. 45, at 15
(“However, he did not feel it was necessary to determine the volume of water that accumulated
on the roof … in order to determine the cause of the collapse. … Whitley could have made such
a determination as part of his investigation of this incident, but instead simply chose not to do
so.”) (emphasis in original), 16 (“Whitley concludes that the weight of the water on the roof was
significant enough to collapse the roof, but has never calculated the weight.”) (emphasis in
original).)
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parties’ positions is accurate.8 Nonetheless, All-South insists that “the ‘why’ is important to the
outcome of this case.” (Doc. 60, at 6.) Of course, that statement is also correct. Where AllSouth’s argument breaks down is in the lack of any reasoned showing why mathematical
calculations of the total water volume on Thompson’s roof are necessary to form reliable
opinions as to causation of that water accumulation. For his part, Whitley (much like
defendant’s structural engineering expert) appears to have assumed more than 12 inches of water
had accumulated because the Thompson roof did not collapse in March 2014 when it was
observed to have 12 inches of standing water along the parapet wall, and the building was in
substantially the same condition prior to the collapse in May 2016. (Whitley Dep., at 164; Barter
Dep., at 72, 217-18.) Why does a structural engineer require more precise data of the amount of
water accumulation in order to evaluate the cause of a roof failure? Why is it not sufficient to
make a reasonable assumption based on undisputed facts that the water volume must have been
in excess of 12 inches? Defendant does not say.9 For his part, Whitley testified that his
8
Indeed, All-South’s structural engineer, Marc Barter, wrote in his report, “There
is little doubt that the accumulation of water on the roof caused its collapse.” (Doc. 53, Exh. BB,
at 5.) Barter testified even more bluntly in his deposition, “The roof collapsed due to the
accumulation of water on the roof.” (Barter Dep., at 299.) In its reply, All-South acknowledges
that “Defendant agrees generally that the accumulation of water on the roof caused the collapse.”
(Doc. 60, at 6.)
9
Also, it bears noting that All-South misstates Whitley’s opinions by repeatedly
suggesting in its briefs that Whitley ascribes the roof collapse solely to the 9% reduction in drain
size resulting from All-South’s installation of drain inserts. (See doc. 45, at 17 (“Whitley has
completely failed to show … how the code violation relating to the reduction of drain sizes by
9% caused conditions that led to the roof collapse.”); doc. 47, at 24 (asserting that Whitley “is
comfortable with asserting his own conclusory statements as to causation of the roof collapse,
based solely on the presence of an alleged code violation regarding drain sizing”); doc. 60, at 6
(“Again, he simply wants to rely on the drain opening sizes in violation of the IPC and ignore
any other evidence ….”).) In fact, Whitley’s July 2017 report identified not one, but four code
violations (reduced drain size, improper strainers, insufficient roof drain capacity, and lack of
secondary drains), then stated, “The above listed code violations resulted in an accumulation of
water on the roof of the facility.” (Doc. 48, Exh. Q, at 10.) Likewise, in his deposition, Whitley
was quite clear in expressing his opinion that “[t]he violations of the building code resulted in an
accumulation of water on the roof.” (Whitley Dep., at 181 (emphasis added).) Recall that one of
the violations identified by Whitley was the absence of a secondary drainage system (i.e.,
scuppers) on the Thompson roof’s parapet wall. All-South’s structural engineering expert, Marc
Barter, readily agreed that if “there were free flowing scuppers that were set at the appropriate
height off the roof,” then “[w]e wouldn’t be sitting here today with a building collapse.” (Barter
(Continued)
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causation opinions linking code violations to the roof collapse were “based on my inspection of
the facility, based on the calculations that I’ve done, based on my previous experience, and based
on the condition of this structure.” (Whitley Dep., at 182.) For aught the record shows, that is a
reasonable, reliable methodology for a structural engineer to use in forming causation opinions.
Even more fundamentally, Travelers maintains that any such water volume calculations
would have necessarily suffered from false precision and would have been unreliable because
they hinge on facts that are unknown and unknowable. For example, Whitley explained that he
could not calculate how high the water rose on the roof “[b]ecause I have to have the momentby-moment [rainfall] intensities in order to make that calculation,” which data does not exist.
(Whitley Dep., at 159.) Whitley elaborated that in order to use hourly rainfall data to perform
such calculations, he would have had to make “an assumption with no basis whatsoever that the
rainfall intensity was consistent throughout that hour.” (Id. at 160.)10 Similarly, any calculations
about water accumulation that night would have required data concerning the extent to which the
six Thompson roof drains were clogged. According to Whitley, he did not observe any clogged
drains on the roof and had “no information to show that there was any clogs.” (Whitley Dep., at
170-71.) Defendant’s roofing expert, Marc Barter, likewise testified, “I don’t know,” when
asked whether all six drains were blocked to some extent, and further responded “I do not,” when
Dep., at 219-20.) Thus, the idea that drainage design issues (including the lack of scuppers) were
a cause of the accumulation of water that led to the roof collapse is a notion that the parties’
experts all appear to accept. To be sure, whether those design problems are attributable to AllSouth (as opposed to the original designer/builder of the Thompson roof three decades earlier) is
a critical area of divergence between the parties, as is the presence or absence of other
contributing factors (such as corrosion or Thompson’s alleged failure to maintain or clean out the
downspouts). But Whitley’s opinion that a combination of design problems (including the lack
of scuppers) was a cause of the accumulation of water on the Thompson roof does not appear
controversial.
10
All-South’s roofing expert, Richard Baxter, appeared to concur with Whitley on
this point, as he testified, “Neither I nor anybody besides maybe God could figure out how much
water was coming down that night.” (Baxter Dep. (doc. 54, Exh. G), at 83.) In Baxter’s view, it
was not possible to determine how much water had accumulated “unless you had a rain gauge or
other instruments up there” during the storm. (Id. at 84.) Yet All-South urges this Court to
exclude Whitley’s opinions under Daubert because Whitley declined to make calculations that
would have been dependent on precisely “how much water was coming down that night.”
-12-
asked if he knew how many drains were clogged. (Barter Dep., at 178-79.) Given the
incomplete or nonexistent data relating to these and other necessary variables for the water
accumulation calculations, Travelers has a compelling argument that it was reasonable for
Whitley to refrain from attempting such inherently suspect, unreliable calculations in forming
causation opinions.
Finally, in its most stinging rebuke of Whitley’s methodology, All-South argues that
“Whitley did nothing” other than to “offer[] his sweeping ‘expert’ opinions … without any
supporting scientific or technical methodology,” such that “Whitley cannot offer any basis for his
findings.” (Doc. 45, at 16.) That is not a fair characterization of the evidence. Uncontroverted
record evidence reflects that Whitley took the following steps, among others, in forming his
structuring engineering opinions in this case: (i) he inspected the site for more than seven hours
on May 11 and 12, 2016, less than two weeks after the collapse, during which time he took
measurements, field notes and photographs, and viewed the site from various vantage points
(Whitley Dep., at 65-66, 67-68); (ii) he inspected the site for an additional three hours on June
14, 2016, at which time he took additional measurements and photographs, went up in a lift to
inspect the roof, and examined all columns in the building (id. at 77-78, 80-83); (iii) he inspected
the site on a third occasion on July 1, 2016, focusing on the drainage system, taking photographs
and collecting physical evidence (drain inserts and collars) (id. at 87-88); (iv) he spoke with
Thompson representative Mike Reuter and reviewed additional photographs depicting corrosion
on the structure on July 5, 2016 (id. at 107-08); (iv) he conducted a laboratory examination of
collected materials and reviewed the file on July 13, 2016 (id. at 126-27); (v) he prepared
detailed calculations of drainage capacity on the Thompson roof (id. at 136; doc. 54, Exh. D &
E); and (vi) he prepared multiple reports setting forth his opinions. Such evidence is
irreconcilable with All-South’s insistence that “Whitley did nothing” but conjure his opinions out
of thin air.
It is true, of course, that Whitley did not perform all the calculations that All-South says
he could have. However, the issue for a Daubert methodology challenge is not what it was
possible for an expert to do, but rather what it was reasonably necessary for an expert to do in
order for his opinions to be reliable. Plaintiff’s evidence is that Whitley did not need to perform
additional calculations to reach his conclusions, and that certain calculations touted by defendant
would have been mere window dressing, imbuing his opinions with a false air of mathematical
-13-
precision which they do not and cannot have. Besides, courts have recognized that an engineer’s
use of techniques of visual inspection, code review, and reliance on experience and expertise can
satisfy the Daubert reliability prong. See, e.g., Clena Investments, Inc. v. XL Specialty Ins. Co.,
280 F.R.D. 653, 664 (S.D. Fla. 2012) (structural engineer’s “experience as an engineer and his
visual inspection of the Property … lay a permissible foundation” for his opinions as to causation
of roof damage).11
For all of these reasons, the Court finds that Whitley’s methodology is sufficiently
reliable to pass muster under Daubert. Whitley conducted multiple in-depth visual inspections
of the site of the roof collapse, including the drains, the lack of scuppers, the location and extent
of corrosion in each of the building’s columns, and the like. He computed the drainage capacity
of the roof. He reviewed and applied building and plumbing codes. He relied on his knowledge
and experience as a structural engineer to conclude that the identified code violations (taken
collectively) caused the accumulation of water that resulted in the Thompson roof’s collapse, and
11
See also Kirksey v. Schindler Elevator Corp., 2016 WL 5213928, *11 (S.D. Ala.
Sept. 21, 2016) (finding no Daubert problem with industrial engineer’s methodology in visually
inspecting escalator guardrail without performing testing or analysis of its structural strength);
Nicholson v. Pickett, 2016 WL 854370, *9-11 (M.D. Ala. Mar. 4, 2016) (finding expert’s
methodology sufficiently reliable, despite lack of testing, where expert visually inspected
vehicle, reviewed depositions, films and reports, and relied on his experience in the industry);
Holman v. State Farm Fire and Cas. Co., 2015 WL 12803770, *7 (N.D. Ala. Jan. 12, 2015)
(where defendant argued that structural engineer failed reliability prong because he did not take
measurements or make calculations, ruling that expert’s “methodology is sufficiently reliable”
where it is based on “first-hand inspection” of the house and applied “knowledge and experience
of structural engineering to reach his conclusion” as to cause of cracks in basement wall);
Sparger v. Newmar Corp., 2014 WL 3928556, *5 (S.D. Fla. Aug. 12, 2014) (“visual inspection
of an engine may be an acceptable way of identifying an engine defect for purposes of evaluating
admissibility of expert testimony,” even where expert did not perform any “intrusive diagnostic
procedure”); Altieri v. State Farm Fire and Cas. Co., 2011 WL 1883054, *3-4 (E.D. Pa. May 17,
2011) (finding structural engineer’s methodology sufficiently reliable where, in forming opinion
about cause of wall collapse, he “made first-hand observations of the collapse and applied his
knowledge and experience of structural design and engineering to reach conclusions regarding
the cause of the collapse,” even though his “report lacks engineering jargon”); Banta Properties,
Inc. v. Arch Specialty Ins. Co., 2011 WL 13096149, *5 (S.D. Fla. Dec. 20, 2011) (where
architect assessed cause of damage to windows, “[t]he application of his experience during a
visual inspection was an appropriate methodology,” even though there were other steps he could
have taken but did not); Bray & Gillespie IX, LLC v. Hartford Fire Ins. Co., 2009 WL 1046354,
*3 (M.D. Fla. Apr. 20, 2009) (rejecting reliability challenge to architect’s opinions that were
“[b]ased on his visual inspections, with no measurement or other testing”).
-14-
that the presence of corrosion in the structure did not cause the collapse. The ostensible
shortcomings identified by All-South in Whitley’s methodology may be proper fodder for crossexamination; however, defendant’s objections go to weight, rather than admissibility, of
Whitley’s opinions. After all, it is well-settled that “it is not the role of the district court to make
ultimate conclusions as to the persuasiveness of the proffered evidence;” rather, “[v]igorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)
(citation omitted). Insofar as defendant’s Motion to Exclude is predicated on the reliability
prong of Daubert, then, the Motion is denied.
D.
Challenge to Whitley’s Opinions about Standard of Care in Roofing Industry.
Defendant’s final asserted ground for the Motion to Exclude is that Whitley “is not a
roofing expert” and therefore “cannot offer any opinions as to the roofing industry standard of
care.” (Doc. 45, at 19.) All-South is certainly correct that Whitley acknowledged that he is “not
a roofing contractor” and disclaimed any qualification to offer opinions as to standard practice
for roofing contractors for the installation of a roofing system. (Whitley Dep., at 208-09.)
Nonetheless, All-South’s argument is not persuasive because it fails to identify any
“expected testimony from Charles Whitley regarding any roofing industry requirements,
standards or violations.” (Doc. 45, at 19.) Review of Whitley’s expert reports does not reveal
him opining directly on the topic of roofing industry standards. Rather, Whitley’s July 2017
report included the following opinions: (i) the January 2010 roofing work performed by AllSouth met the International Building Code’s definition of a “roof recovering;” (ii) as such, that
work was subject to the requirements of Chapter 15 of the IBC; (iii) pursuant to § 1503.4 of the
IBC, design and installation of roof drainage systems must comply with the International
Plumbing Code; (iv) the January 2010 roofing work performed by All-South constituted “design
and installation of a roof drainage system,” so the IPC applied; (v) that work violated the IPC in
four distinct, enumerated respects; (vi) those enumerated code violations resulted in the
accumulation of water on the Thompson roof; and (vii) the accumulation of water overloaded the
structural system and resulted in the roof collapse on May 2, 2016. (Doc. 48, Exh. Q, at 3-10.)
None of these opinions appear to exceed the scope of Whitley’s qualifications as a structural
engineer or to require direct knowledge of the “standard practice for roofing contractors.” At
-15-
any rate, All-South has advanced no argument that Whitley is not qualified to testify as to the
proper application of the Building and Plumbing Codes to a particular job, or to the causation of
observed damage to a structure. In short, given the Code-based framing of Whitley’s opinions,
All-South’s generic objection to his lack of expertise “regarding roofing issues” (doc. 54, at 13)
is not well-taken.12 This aspect of the Motion to Exclude is, therefore, denied.
III.
All-South’s Motion for Summary Judgment.
Related to its Motion to Exclude Testimony from Charles Whitley, All-South has also
filed a Motion for Summary Judgment (doc. 46). Recall that Travelers’ Complaint is couched in
theories of negligence and negligence per se, alleging that All-South failed to exercise
reasonable care in working on the Thompson roof (Count I); negligent misrepresentation,
alleging that All-South falsely represented to Thompson the work that it would perform and the
standard and end results of that work (Count II); breach of contract, alleging that All-South
breached its agreement with Thompson by failing to inspect, maintain, repair and/or replace the
subject roof as promised (Count III); and breach of express and implied warranties, alleging that
Thompson breached an express warranty on the subject roof, breached promises and warranties
contained in its advertising materials, and breached implied warranties of fitness and
merchantability under Alabama law (Count IV). All-South seeks summary judgment on each of
these counts. The Court will evaluate All-South’s Rule 56 Motion on a claim-by-claim basis,
considering record facts as appropriate for each asserted cause of action.13
12
This determination rests on a crucial distinction. Defendant may well be correct
that Whitley is not qualified to offer direct opinions as to a roofer’s standard of care. But that is
not what Whitley has done in this case. Instead, Whitley has opined that All-South’s work
violated the IBC and IPC in specific respects. Code violations themselves may be evidence of
breach of a duty of care under Alabama law. See generally Kirksey v. Schindler Elevator Corp.,
2016 WL 3189242, *21 n.39 (S.D. Ala. June 7, 2016) (under Alabama law, code compliance “is
merely evidence of due care,” such that “a defendant may be adjudged liable on a negligence
theory whether or not its conduct was code-compliant”). Whitley is qualified to offer opinions as
to whether All-South’s work on the Thompson roof complied with applicable codes, and those
opinions properly bear on the applicable duty of care, notwithstanding Whitley’s
acknowledgment that he is not a roofing contractor and cannot testify to standard practice for
roofing contractors in Alabama.
13
Of course, summary judgment is properly granted only “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Rule 56(a), Fed.R.Civ.P. All-South, as the movant, bears “the initial burden to
(Continued)
-16-
A.
Count I: Negligence / Negligence Per Se.
In Count I of the Complaint, Travelers alleges that All-South “failed to exercise
reasonable care with respect to the work it performed on the subject roof,” that its “conduct fell
below the applicable standard of care,” and that its “failure to meet the requirements of the 2009
IPC also constitutes negligence per se.” (Doc. 1, ¶¶ 49-51.)
As an initial matter, All-South seeks summary judgment on the negligence per se aspect
of Count I. All-South’s position is well-supported by Alabama law. Again, Travelers maintains
in the Complaint that All-South’s noncompliance with the International Plumbing Code
constitutes negligence per se. The Alabama Supreme Court has unequivocally rejected that
proposition. For violation of a statute or ordinance to constitute negligence per se, that statute or
ordinance “must have been enacted to protect a class of persons, of which the plaintiff is a
member.” Parker Bldg. Services Co. v. Lightsey ex rel. Lightsey, 925 So.2d 927, 931 (Ala.
2005). The Parker Bldg. Services Court held that “[t]he purpose of the Building Code is to
protect the general public. Because the first element of the doctrine of negligence per se is not
met, negligence per se is not applicable to violations of the Building Code in this case.” Id. at
932. In light of this authority, Travelers properly concedes that its negligence per se claim is not
cognizable under current Alabama law. (Doc. 55, at 8.) Accordingly, All-South’s Motion for
Summary Judgment is granted as to the negligence per se portion of Count I.
The great majority of All-South’s argument for summary judgment on Count I,
consuming some 13 pages of argument in its principal brief, is that Travelers lacks reliable
evidence of negligence by All-South because Whitley’s opinions “are not properly founded on
any accepted testing, design, research or investigation and should be disregarded in their
totality.” (Doc. 47, at 13-26.) In so asserting, All-South revisits in great detail its separately
filed Daubert Motion concerning Whitley’s testimony and opinions. For the reasons discussed
show the district court, by reference to materials on file, that there are no genuine issues of
material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). If All-South satisfies that initial responsibility, then the burden shifts to
Travelers to show the existence of a genuine issue of material fact. “If the nonmoving party fails
to make a sufficient showing on an essential element of [its] case with respect to which [it] has
the burden of proof, the moving party is entitled to summary judgment.” Id. (citation, footnote
and internal quotation marks omitted).
-17-
in Section II, supra, the Court has already concluded that Whitley’s expert opinions set forth in
his written reports and deposition testimony comport with Daubert reliability principles. The
Court declines to rehash these issues on summary judgment, where All-South appears to have
simply repackaged and restated the same or similar arguments already litigated, considered and
adjudicated in the context of the Daubert Motion. Whitley’s expert testimony will not be
excluded wholesale under Rule 702; moreover, his opinions constitute evidence from which a
reasonable finder of fact could determine that All-South breached a duty of care in performing
re-roofing work on the Thompson warehouse in January 2010 by violating the International
Building Code and Plumbing Code in multiple respects. Thus, defendant is not entitled to
summary judgment on the negligence portion of Count I.14
14
As an aside, it bears noting that Charles Whitley is not Travelers’ only liability
expert. Daniel T. Sheehan, P.E., a structural engineer appearing here in the capacity of a rebuttal
expert, submitted a written report dated January 3, 2018, in which he opined in part as follows:
(i) “All-South was the installer and became the designer” of the Thompson roof’s drainage
system, such that “they were bound to follow the provisions of the 2006 IBC and 2006 IPC,”
which required addition of scuppers or secondary drains; (ii) “they could have easily installed the
scuppers” in the course of performing the existing scope of work on the re-roofing project; (iii)
All-South “had a second opportunity to inform Thompson” about the need for scuppers in March
2014, “and failed to do so;” and (iv) as a commercial roofing contractor, All-South “should know
what the function of a roof drain and scupper is, and the importance of having secondary
drainage on a low slope roof with parapet walls.” (Doc. 55, Exh. D, at 2.) Citing conflicting
authorities, the parties dispute whether the opinions of Sheehan, as a rebuttal expert, may
properly be considered on summary judgment; however, the Court need not resolve that
disagreement because Whitley’s opinions provide ample evidence of negligence to allow Count I
to proceed to trial. Nonetheless, the Court pauses to point out that, contrary to All-South’s stated
understanding (see doc. 61, at 6-7), there is no pending Motion to Exclude Sheehan’s testimony
and opinions. To be sure, All-South did file a Motion to Exclude (doc. 30) aimed at Sheehan on
November 22, 2017. But that Motion was administratively terminated on December 21, 2017
when Magistrate Judge Murray entered an Order cancelling oral argument on the ground that
“counsel for the parties hav[e] informed a member of the undersigned’s staff that the parties have
reached an agreement in writing resolving their dispute.” (Doc. 35.) All-South now insists that
it never withdrew its Motion to Exclude, that the parties never agreed to any resolution of its
objections set forth in that Motion, and that its objections to Sheehan’s testimony have been
properly maintained and preserved at all times. (Doc. 61, at 6-7.) Remarkably, none of this
appears to have been communicated to the undersigned – much less to Magistrate Judge Murray,
to whom the original Motion to Exclude Sheehan’s testimony was referred and who canceled
oral argument on the Motion at the eleventh hour based on the parties’ express assurances that
such dispute has been resolved informally – by anyone until now. Be that as it may, the fact
remains that there is no pending Motion to Exclude concerning Sheehan’s testimony at this time.
(Continued)
-18-
B.
Count II: Negligent Misrepresentation.
In Count II of the Complaint, Travelers brings a claim for negligent misrepresentation. In
that claim, Travelers alleges that All-South “made numerous material misrepresentations to
Thompson Tractor concerning the roof work that would be performed and the standard of said
work.” (Doc. 1, ¶ 54.) On summary judgment, All-South argues that Count II must be
dismissed because “Travelers has not offered any evidence of specific representations by AllSouth that were 1) false; 2) related to a material fact with the re-roofing project, that 3) resulted
in damages.” (Doc. 47, at 27.)
In response, the only specific misrepresentations identified by Travelers are those found
in a printout purportedly taken from All-South’s website dated June 26, 2017. (Doc. 55, at 9-10
& Exh. L.) Travelers points to language on the website in which All-South made statements
such as “[L]et us design the roof that best meets your needs;” “If there is an issue with your
design, we will bring that to your attention immediately;” and “[O]ur inspections, done soon
after such an event, will catch any issues early on and remedy them before they ever become a
serious expense.” (Doc. 55, Exh. L, at 4, 8, 9.) Travelers presents no evidence that these
statements found on All-South’s website in June 2017 were also present on that website in
November 2009, when All-South entered into an agreement with Thompson; or in January 2010
or March 2014, when All-South performed work for Thompson. More importantly, Travelers
offers not a shred of evidence that anyone at Thompson was aware of, much less relied on, any
All-South website representations at any time. Of course, reasonable reliance is an essential
element of a negligent misrepresentation claim. See, e.g., Alvarez v. United States, 862 F.3d
1297, 1302 (11th Cir. 2017) (“the essence of an action for misrepresentation, whether negligent
or intentional, is the communication of misinformation on which the recipient relies”) (footnote
omitted); Medical Park Station, LLC v. 72 Madison, LLC, 216 So.3d 453, 457-58 (Ala.Civ.App.
2016) (“To recover in a fraud action …, a plaintiff must prove that he or she reasonably relied
on the defendant’s alleged misrepresentation.”) (citations omitted). Plaintiff points to no record
evidence of such reliance on purported website representations.
Should All-South wish to pursue objections to Sheehan that it contends have not been mooted or
otherwise resolved, then it must file an appropriate motion within the timeframe specified by
Paragraph 6 of the applicable Rule 16(b) Scheduling Order (doc. 22).
-19-
Nor does Travelers strengthen its position on Count II by citing deposition testimony of
Thompson facility development manager Mike Reuter that he “trusted [All-South’s] judgment,
and they were the specialists, the roofing specialists, and … I would assume if they were putting
a roof on the building they would want to make sure it drained properly.” (Reuter Dep. (doc. 55,
Exh. J at 46.) Travelers identifies no specific representations from All-South on which Reuter
relied in forming that trust or making those assumptions. Likewise, Travelers’ contention that
“All-South held itself out as an experienced and knowledgeable company” (doc. 55, at 10)
accomplishes nothing for Count II purposes absent evidence that it made representations to that
effect to Thompson, that such representations were false, or that Thompson relied on those
representations. Finally, Travelers weakly suggests that the maintenance contract All-South
offered to Thompson provided for less frequent inspections than those required by the warranty
issued by the roofing membrane’s manufacturer. (Doc. 55, at 10.) Thompson declined that
maintenance contract. (Doc. 53, Exh. V, at 25-26, 30.) If Thompson rejected All-South’s
maintenance contract, then it could not possibly have reasonably relied on the terms of that
rejected contract to its detriment.
The bottom line is this: On summary judgment, Travelers has failed to identify a single
specific false representation made by All-South on which Thompson reasonably relied.
Accordingly, Count II fails as a matter of law. Defendant’s Motion for Summary Judgment will
be granted as to the negligent misrepresentation cause of action.
C.
Count III: Breach of Contract.15
In Count III of the Complaint, Travelers asserts a claim for breach of contract. Citing the
contract between Thompson and All-South pursuant to which All-South “agreed to provide work
on the roof of the subject warehouse,” the Complaint alleges that “[i]n breach of that contract,
the Defendant did fail to inspect, maintain, repair, and/or replace the subject roof as agreed.”
(Doc. 1, ¶¶ 60, 62.) All-South now seeks summary judgment on Count III, reasoning that
15
In a footnote, Travelers concedes that “some of its causes of action overlap” and
expresses willingness to “elect its remedy” by proceeding to trial solely on the negligence claim.
(Doc. 55, at 11 n.7.) Yet it also devotes considerable energy in its response brief to defending
the merits of its other causes of action. Under the circumstances, the Court will address
defendant’s Rule 56 Motion on the merits as to each claim and cause of action presented. The
topic of election of remedies should be addressed in the parties’ Joint Pretrial Document and
shall be discussed at the Final Pretrial Conference.
-20-
“Travelers has produced no evidence that All-South breached its contract with Thompson.”
(Doc. 47, at 28.)
There appears to be no dispute that All-South issued a written proposal for the re-roofing
job to Thompson on November 10, 2009, and that Thompson accepted that proposal. As such,
the November 10 proposal appears to set forth the terms of a binding contract between All-South
and Thompson. In that proposal, All-South specified a scope of work that included “[l]ine the
internal gutters with membrane.” (Doc. 48, Exh. H.) All-South did not, in fact, line the internal
gutter on the Thompson roof with membrane, but instead filled in that internal gutter with solid
material. (Doc. 43, Exh. D, at #6; Goldman Dep. (doc. 48, Exh. J), at 129.) These are two
different methods. (Goldman Dep., at 48-49.) All-South never even notified Thompson of this
modification to the agreed-upon scope of work, much less obtained Thompson’s approval or
permission for that alteration. (Id. at 51.) Travelers maintains that All-South’s deviation from
the November 2009 agreement in this respect raises genuine issues of material fact as to whether
All-South breached the contract, thereby precluding dismissal of Count III on summary
judgment.
In response, All-South argues that its decision to fill in the Thompson gutter rather than
line it with membrane was nothing more than a “minor deviation from the original scope of
work,” a mere “field decision” that was necessary to create a “water tight seal.” (Doc. 61, at 13.)
All-South advances no legal argument why a “minor” breach of contract made as a “field
decision” negates the existence of a viable claim. To be sure, the Court is aware that under
Alabama law, a breach-of-contract cause of action requires a material breach. See, e.g., Sokol v.
Bruno’s, Inc., 527 So.2d 1245, 1248 (Ala. 1988) (“We are mindful of the law regarding a
material breach of a contract. A material breach is one that touches the fundamental purposes of
the contract and defeats the object of the parties in making the contract.”).16 On this record, a
genuine issue of material fact exists as to whether All-South’s act of filling in the gutter rather
16
See also Abernant Fire Dep’t v. Rhodes, 21 So.3d 739, 744 (Ala.Civ.App. 2009)
(“To succeed in a breach-of-contract action, a claimant must prove a material breach of the
contract.”); Stockton v. CKPD Development Co., 936 So.2d 1065, 1078 (Ala.Civ.App. 2005)
(“The elements that must be proven in a breach-of-contract action include the existence of a
contract, a material breach of that contract by one party, and damage to the other party as a
result of the breach.”) (emphasis added).
-21-
than lining it with membrane amounts to a material breach of the November 2009 proposal, so as
to be actionable on a breach-of-contract theory. After all, once that gutter on Thompson’s roof
was filled in by All-South, that gutter “does nothing. It’s covered up.” (Armstrong Dep. (doc.
43, Exh. B), at 81.) A reasonable finder of fact might conclude on this record that Thompson did
not want the gutter on its warehouse roof to be reduced to a state of total ineffectuality, with
concomitant effects on the roof’s drainage characteristics. (Barter Dep. (doc. 43, Exh. F), at 11112 (answering affirmatively when asked if All-South’s act of filling in the gutter “affected the
drainage characteristics of the building”).)
In short, the written contract to which All-South and Thompson agreed included specific
language regarding the nature of All-South’s work to be performed on the warehouse roof gutter.
There is record evidence that what All-South actually did to the gutter was completely different
than the specifications of that agreement. These facts, and the accompanying genuine issues as
to materiality, preclude entry of summary judgment in All-South’s favor on the breach-ofcontract claim set forth as Count III of the Complaint.17
D.
Count IV: Breach of Warranty.
Finally, in Count IV of the Complaint, Travelers brings a claim against All-South for
“Breach of Express and Implied Warranties.” As pleaded, Count IV alleges that All-South
“expressly and/or impliedly warranted to Thompson Tractor that the roof, component parts, and
the maintenance performed were free of material defects, done in a professional, competent, and
workmanlike manner.” (Doc. 1, ¶ 67.) Count IV further alleges that All-South “expressly and/or
impliedly warranted to Thompson Tractor that the roof, component parts, and the maintenance
performed would be of excellent quality, merchantable and fit for the particular purpose
intended.” (Id., ¶ 68.) Count IV goes on to identify “descriptions and advertisements” by All17
In opposing All-South’s Motion for Summary Judgment as to Count III, Travelers
also argues that All-South breached its contract with Thompson by failing to obtain the necessary
permit from Baldwin County for the re-roofing project. (Doc. 55, at 11.) In its November 2009
proposal, All-South expressly stated, “We include all necessary licenses and permits.” (Doc. 48,
Exh. H, at 2.) During the discovery process, All-South “[a]dmitted that a permit from Baldwin
County was required.” (Doc. 43, Exh. D, at #33.) An All-South representative also
acknowledged that no such permit was obtained. (Schaffer Dep. (doc. 55, Exh. F), at 49.) This
aspect of All-South’s apparent non-compliance with the terms of the contract thus raises genuine
issues of material fact as to Count III, precluding entry of summary judgment in defendant’s
favor as to that cause of action.
-22-
South that Travelers says “became part of the basis of the bargain,” and also cites “a fifteen-year
warranty” furnished by All-South “for all of its labor and materials on the subject roof,” all of
which Travelers alleges gives rise to claim for breach of express warranties pursuant to Alabama
Code § 7-2-313. (Id., ¶ 69.) Further expanding the scope of Count IV, Travelers pleads that AllSouth “breached its warranties of fitness and for merchantability;” that “[t]he goods at issue were
not merchantable, were not of fair quality, and were not fit for ordinary purposes.” (Id., ¶ 70.)
On the basis of these and other allegations, Count IV pleads that All-South breached implied
warranties pursuant to Alabama Code §§ 7-2-314 and 7-2-315. (Id.)
Faced with All-South’s Motion for Summary Judgment as to Count IV, Travelers hastens
to narrow the exceedingly broad scope of its breach-of-warranty cause of action as pleaded. In
particular, Travelers disclaims any intent to predicate Count IV on the “one-year express
warranty” provided by All-South. (Doc. 55, at 12.) Instead, Travelers clarifies that the only
warranties animating Count IV are “the implied warranties of merchantability and fitness for a
particular purpose.” (Id.) To satisfy the implied warranty of merchantability under Alabama
law, goods must “[p]ass without objection in the trade under the contract description” and must
be “fit for the ordinary purposes for which such goods are used.” Ala. Code § 7-2-314(2)(a),(c).
Likewise, Alabama implies a warranty of fitness for a particular purpose “[w]here the seller at
the time of contracting has reason to know any particular purpose for which the goods are
required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable
goods.” Ala. Code § 7-2-315.
Travelers points to considerable record evidence from which a reasonable finder of fact
could conclude that the drain inserts and strainer straps fabricated and installed by All-South
would not pass without objection in the trade. For example, Charles Whitley stated in his expert
report of July 31, 2017 that “reduction in the size of the downspouts created by the installation of
the inserts” is a code violation, and that “[t]he system installed by All-South had no strainer that
extended not less than four inches above the roof surface. The lack of a strainer that extended
not less than four inches above the roof surface is a code violation.” (Doc. 48, Exh. Q, at 9.)
Defendant’s expert Marc Barter acknowledged that the strainers and straps “have the capability
of trapping pine straw and leaves.” (Barter Dep., at 289.) This and other record evidence reveals
the presence of genuine issues of material fact as to whether All-South’s work violated the
implied warranty of merchantability. As for the implied warranty of fitness for a particular
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purpose, plaintiff’s evidence is that Thompson relied on All-South’s skill or judgment to select a
re-roofing system that would drain properly. (Reuter Dep. (doc. 55, Exh. J), at 46-47 (“I trusted
their judgment, and they were the specialists, the roofing specialists, and … I would assume if
they were putting a roof on a building they would want to make sure that it drained properly.”),
91 (“I believe getting water off of a roof is a roofer’s responsibility,” and “from their experience
they would – surely would know how to get the water off the roof.”).) And of course, Travelers
has presented substantial evidence that the roofing system selected and installed by All-South
was not fit for that purpose, such as expert testimony from Whitley of numerous code violations
embedded in that system. (Doc. 48, Exh. Q.) Faced with this evidence and argument, the sum
total of All-South’s reply for why it seeks summary judgment on Count IV is that “[t]here is no
citation to applicable case law for Plaintiff’s opposition.” (Doc. 61, at 14.) Movant advances no
argument or reasoning why citations to case law are necessary given the clarity of the legal
standard for these implied warranties as a matter of Alabama statute. Nor has All-South
propounded any argument for why these enumerated record facts would not be sufficient to
create genuine issues of material fact as to whether All-South breached the implied warranties of
merchantability and fitness for a particular purpose.
In light of these concerns, defendant’s Motion for Summary Judgment is denied as to the
portions of Count IV that concern the implied warranties of merchantability and fitness for a
particular purpose, but granted as to other express or implied warranties pleaded in Count IV of
the Complaint.18
IV.
Conclusion.
For all of the foregoing reasons, it is ordered as follows:
18
As something of an afterthought, the parties skirmish in their summary judgment
briefs about All-South’s assertion that “Travelers completely and wholly disregards other
identified causes of the warehouse roof collapse.” (Doc. 47, at 29; see also doc. 55, at 13-14;
doc. 61, at 14-15.) In a separate ruling issued on this date, the Court has found that Travelers is
entitled to summary judgment on the issue of whether the lack of scuppers was a cause of the
roof collapse. The parties’ briefs as to All-South’s Rule 56 Motion identify multiple disputes of
fact as to other possible contributing causes of the loss. Those causation issues are the source of
bona fide factual disagreements in the record, are not amenable to resolution via the summary
judgment vehicle, and are properly submitted to the finder of fact at trial.
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1.
Defendant All-South Subcontractors, Inc.’s Motion to Exclude Testimony from
Charles Whitley (doc. 45) is denied;
2.
Defendant All-South Subcontractors, Inc.’s Motion for Summary Judgment (doc.
46) is granted in part, and denied in part;
3.
The Motion for Summary Judgment is granted as to the negligence per se portion
of Count I, all of Count II (negligent misrepresentation), and the portion of Count
IV (breach of warranty) concerning warranties other than Alabama’s implied
warranties of merchantability and fitness for a particular purpose, and those
claims or portions of claims are dismissed;
4.
In all other respects, the Motion for Summary Judgment is denied; and
5.
This action remains set for Final Pretrial Conference on July 10, 2018 at 9:00
a.m., with jury trial to follow in the August 2018 civil term.
DONE and ORDERED this 13th day of April, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
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