JB McKathan v. Great American Insurance Company

Filing 24

ORDER. Defendant's motion to compel entry of premises for inspection (Doc. 22) is GRANTED; Defendant shall conduct its inspection on or before April 17, 2019. Any expert report created by Defendant's expert Michael Linehan shall be disclosed on or before April 24, 2019. Any deposition of Defendant's expert Michael Linehan shall be completed on or before May 3, 2019. See Order for details.. Signed by Magistrate Judge Philip R. Lammens on 4/5/2019. (JWM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JB MCKATHAN d/b/a
MCKATHAN FARM,
Plaintiff,
v.

Case No: 5:18-cv-284-Oc-30PRL

GREAT AMERICAN INSURANCE
COMPANY,
Defendant.

ORDER
In this breach of contract action, Plaintiff seeks damages under a policy of homeowner’s
insurance issued by Defendant. Defendant has moved to compel an inspection of the subject
property (Doc. 22), and Plaintiff has filed a response in opposition. (Doc. 23). For the reasons
explained below, Defendant’s motion to compel is due to be granted.
I.

BACKGROUND

In this action, Plaintiff seeks insurance proceeds for damage allegedly caused by Hurricane
Irma at property located in Reddick, Florida. In September 2017, Plaintiff’s representative reported
a loss to the subject property, and Defendant’s field adjuster conducted an initial inspection. Soon
thereafter, in December 2018, Defendant issued payment to Plaintiff in accordance with the field
adjuster’s estimate, less the policy deductible and any applicable depreciation. In February 2018,
Plaintiff submitted a sworn statement in proof of loss along with an estimate from a construction
company. In March 2018, Defendant’s expert consultant, Michael Hogan, conducted an inspection

but was only able to inspect the interior and exterior of one of the six buildings on the subject
property. Following a mediation in June 2018, Plaintiff filed this lawsuit.
Pursuant to the Court’s Case Management and Scheduling Order (Doc. 12), February 1,
2019 was the Defendant’s expert disclosure deadline, and March 29, 2019 was the discovery
deadline. On February 1, 2019, Defendant disclosed Michael Hogan, a professional engineer, and
Michael Linehan, a professional engineer and roof consultant, as experts. Although Defendant
provided an expert report for Mr. Hogan, one was not provided for Mr. Linehan and Defendant
stated, “Mr. Linehan has not prepared a report but said report will be provided to Plaintiff as soon
as created pursuant to Fed. R. Civ. P. 26(a)(2).” (Doc. 23-8, p. 2). On February 8, 2019, Defendant
served its request to permit entry upon land for inspection. On March 8, 2019, Plaintiff served its
objection to the inspection request. On March 15, 2019, Defendant moved to compel (Doc. 22),
and Plaintiff has filed a response. (Doc. 23).
II.

LEGAL STANDARDS

Generally, parties are entitled to discovery regarding any non-privileged matter that is
relevant to any claim or defense and proportional to the needs of the case, considering various
factors. Fed. R. Civ. P. 26(b)(1). Under Rule 26(b)(2)(C), however, the Court has broad discretion
to limit the frequency or extent of discovery if discovery is “unreasonably cumulative or
duplicative,” “can be obtained from some other source that is more convenient,” or if “the party
seeking the discovery has had ample opportunity to obtain the information by discovery in the
action.” The Court's exercise of discretion to appropriately fashion the scope and effect of
discovery will be sustained unless it abuses that discretion to the prejudice of a party. Amey, Inc.
v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1505 (11th Cir.1985); see also Moore v. Armour
Pharm. Co., 927 F.2d 1194, 1197 (11th Cir.1991) (“The trial court ... has wide discretion in setting

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the limits of discovery, and its decisions will not be reversed unless a clearly erroneous principle
of law is applied, or no evidence rationally supports the decision.”).
III.

DISCUSSION

Under Fed. R. Civ. P. 34, Defendant moves to compel an inspection of the property that is
the subject of this action. Defendant contends that such an inspection is necessary to evaluate all
portions of Plaintiff’s claim, and because at the March 2018 inspection, expert Hogan only had
access to one of the six buildings on the subject property. Defendant points out that Plaintiff’s
construction estimate pertains to five buildings, and that Plaintiff’s claim includes damages to the
roofs as a result of Hurricane Irma. Further, Defendant asserts that it timely disclosed its experts,
and timely requested that the inspection would take place on March 12, 2019, allowing Mr.
Linehan time to prepare and disclose his report well in advance of the March 29, 2019 discovery
cutoff. Defendant contends that, if not for the objection, the inspection would have already taken
place and Mr. Linehan would have already provided his report, allowing ample time for deposition.
Plaintiff objects to the inspection on three grounds, none of which are persuasive enough
to warrant denial of Defendant’s motion. First, Plaintiff contends that the inspection must be
prohibited because it is prejudicial, and Defendant already had an ample opportunity to conduct
discovery and did not properly disclose expert Linehan. Plaintiff contends that “an inspection of
the land at this late hour is highly prejudicial to Plaintiff because an inspection will necessary [sic]
yield new opinions held by Linehan.” (Doc. 23, p. 3). Plaintiff argues that allowing the inspection
would be disruptive to the case management deadlines and that Defendant already had an ample
opportunity to inspect the property. Plaintiff does not dispute, however, that expert Hogan was not
able to complete a full inspection or that there are differences in the areas of expertise of Hogan
and Linehan, as Linehan has expertise as a roof consultant.

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Likewise, Plaintiff argues that the inspection is “burdensome, duplicative, and
cumulative,” but that argument is again belied by the fact that Defendant has yet to have the
opportunity to inspect all of the relevant buildings or to have its roofing consultant inspect the
subject property. Finally, Plaintiff argues that, because Defendant holds the position that no
coverage is available for two buildings, those two buildings do not require inspection. This
argument is also not persuasive. At a minimum, Defendant is entitled to inspect each of the
buildings that Plaintiff has included in its claim for damages and sworn statement of loss.
To the extent that Plaintiff objects to the timing of the disclosure of expert Linehan or the
failure to disclose his expert report, those objections are unpersuasive. Defendant’s expert Michael
Hogan conducted an inspection in March 2018, but was only able to inspect one of the buildings.
Following that inspection, Defendant attempted to schedule another inspection but was “told that
the Plaintiff was unavailable.” (Doc. 22, p. 2). Defendant disclosed Linehan on February 1, 2019,
and soon thereafter, on February 8, 2019, served its request for inspection. Since at least March
2018, Plaintiff had ample notice of Defendant’s intent to perform a more thorough inspection of
the property. And, if it should become necessary, the Court has broad discretion to adjust case
management deadlines to ameliorate any alleged prejudice due to delays in the discovery process.
Finally, to the extent that Plaintiff objects to the inspection request on the grounds that it
does not meet the reasonable particularity requirements of Rule 34, Defendant has offered
additional information. Defendant requests that its expert, Michael Linehan,
should be permitted to conduct a non-invasive/non-destructive
inspection of the roofs, exteriors and interiors of the subject
property, to include inspecting, measuring, surveying, and
photographing the condition of the roofs, exteriors and the interiors
of the five buildings/dwellings/structures that are part of Plaintiff’s
claim on April 2, 2019 beginning at 9:00 a.m. and concluding no
later than 5:00 p.m. To avoid any prejudice to the Plaintiff, the
Defendant will allow Plaintiff to depose Mr. Linehan within a few

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days of the April 2, 2019 inspection and will also provide Mr.
Linehan’s report to Plaintiff within a few days of the April 2, 2019
inspection.
(Doc. 22, p. 9). The Court finds this request to be sufficiently particular under Rule 34.
IV.

CONCLUSION

Accordingly, upon due consideration, it is ordered that:
(1) Defendant’s motion to compel entry of premises for inspection (Doc. 22) is
GRANTED;
(2) Defendant shall conduct its inspection on or before April 17, 2019.
(3) Any expert report created by Defendant’s expert Michael Linehan shall be disclosed
on or before April 24, 2019.
(4) Any deposition of Defendant’s expert Michael Linehan shall be completed on or before
May 3, 2019.
(5) While Defendant has not expressly requested expenses incurred in making its motion
to compel under Rule 37(a)(5)(A), the undersigned also finds that, under the
circumstances, Plaintiff’s objection was substantially justified such that no award of
reasonable expenses in making the motion is appropriate.
DONE and ORDERED in Ocala, Florida on April 5, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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