VINTAGE HOSPITALITY GROUP LLC v. NATIONAL TRUST INSURANCE COMPANY
ORDER denying 14 Motion for Summary Judgment; denying 18 Motion to Strike. Ordered by US DISTRICT JUDGE CLAY D LAND on 10/6/2021. (ggs)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VINTAGE HOSPITALITY GROUP LLC,
CASE NO. 3:20-cv-90-CDL
NATIONAL TRUST INSURANCE
COMPANY, a foreign corporation,
O R D E R
Some cases present closer questions than others.
such a case.
The overriding question presented by Defendant’s
pending motion for summary judgment is who should decide the close
Defendant of an insured loss as soon as practicable.
genuine factual disputes must be resolved to answer this question,
the law assigns the ultimate determination here to a jury.
jury, which will represent a broad cross-section of the community,
is best suited to hear the testimony, evaluate the witnesses’
credibility, and apply their common sense and wisdom to find the
truth from the evidence.
While it may be tempting for a judge to
arrogate to himself such decision-making, that temptation must be
Who decides the important and close questions is as
important as what is decided.
As explained in the remainder of
this Order, genuine factual disputes exist that must be resolved
by a jury, and therefore, Defendant’s motion for summary judgment
(ECF No. 14) is denied.1
SUMMARY JUDGMENT STANDARD
Summary judgment may be 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.”
Fed. R. Civ.
In determining whether a genuine dispute of material
fact exists to defeat a motion for summary judgment, the evidence
is viewed in the light most favorable to the party opposing summary
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
A fact is material if it is relevant or necessary to the
outcome of the suit.
Id. at 248.
A factual dispute is genuine if
the evidence would allow a reasonable jury to return a verdict for
the nonmoving party.
Vintage Hospitality Group LLC (“Vintage”) was a named insured
under an insurance policy issued by National Trust Insurance
National’s policy covered the Comfort Inn
and Suites at 3980 Atlanta Highway, Athens, Georgia.
for Summ. J. Ex. C, Full Policy 4, ECF No. 14-5 [hereinafter
In addition to the issue of whether Plaintiff provided timely notice
under the policy, Defendant also argues in its motion that Plaintiff
cannot prove causation because its expert must be excluded. As explained
in the remainder of this Order, the Court finds those arguments
Policy].2 Construing all reasonable inferences in favor of Vintage
as required at this stage, the record establishes that (1) a severe
hailstorm (“the Storm”) damaged the roof of Vintage’s Athens
Comfort Inn and Suites on July 21, 2018, Morris Suppl. Aff. ¶ 12,
ECF No. 23-7; (2) the National Policy was in effect at the time of
the damage, Policy at 4; (3) roof damage emerged two months after
the Storm, Patel Aff. ¶¶ 1, 6, ECF No. 16-3; (4) the damage
persisted notwithstanding attempts to fix it, id. ¶¶ 7-8; (5) the
storm damage constituted a covered loss under the Policy for which
National would be contractually obligated to pay as long as Vintage
§ IV.2.a.; (6) the National Policy would not cover the damage that
resulted in the leaks if that damage was due to normal wear and
tear, Policy at 18 § 3.a, 91 § B.2.d; (7) Vintage first learned of
the connection between the July 21, 2018 Storm and the damage to
its roof in February 2020, Patel Aff. ¶¶ 9-11; and (8) Vintage
reported its claim to National on February 21, 2020, id. ¶ 12.
After its investigation, National denied coverage because it
concluded that Vintage had failed to notify National of the covered
occurrence as soon as practicable, as required by the Policy.
Vintage sues National for breach of the insurance contract.
The Policy’s page numbering is not sequential, so when the Court cites
the Policy, it cites to the page number in ECF No. 14-5.
National moves for summary judgment on two grounds.
precedent for coverage under the Policy as a matter of law because
it failed to provide notice of the claim as soon as practicable.
Second, National contends that even if there is a fact dispute on
the timeliness of Vintage’s notice, National is still entitled to
summary judgment because Vintage cannot prove that the roof damage
was caused by the Storm and thus covered under the Policy.
Court will address each issue in turn.
Was Vintage’s Notice Untimely as a Matter of Law?
The National Policy required Vintage to report a covered loss
“as soon as practicable.”
It is undisputed that Vintage did not
report to National the claim under its Policy until February 21,
2020, nineteen months after the hailstorm that it now contends
caused the damage to its roof and seventeen months after it first
became aware that its roof leaked.
Patel Aff. ¶ 12.
by the owner of the property, Mr. Patel, he first observed leaks
from the hotel roof in September of 2018, but he did not connect
the leaks at that time to the Storm that had occurred two months
In fact, he noticed no leaks immediately following the
Storm during that preceding two months.
Id. ¶¶ 5-6. When he first
noticed the leaks, his focus understandably was on fixing the
leaks, which he directed his maintenance supervisors to do.
¶¶ 1, 6-8.
As a business owner anxious to get his property fully
investigation conducted immediately to determine the cause of the
He simply needed to stop the leaks to keep his customers
safe and dry.
Unfortunately for Mr. Patel, the leaks persisted
over the next year and a half.
Id. ¶ 8.
Eventually, in February
2020, Mr. Patel hired a construction company to evaluate the
Id. ¶ 9.
The construction company’s representative
advised him that the roof had experienced previous hail damage
which was causing the leaks.
Id. ¶¶ 10-11.
Patel connected the
damage to the July 21, 2018 Storm upon receipt of that report.
promptly made a claim with National within a few days of receiving
The question is whether under these circumstances Vintage
waited too long to make its claim.
The National Policy does not
place a hard deadline for reporting a claim.
could have included such a definite deadline, it chose to provide
a more flexible reporting requirement allowing its insured to
notify it of any claim as soon as practicable.
Georgia law, which
determining whether notification of a covered loss satisfies an
insurance policy’s requirement that losses be reported “as soon as
practicable:” the length of the delay in notification and the
Georgia courts have interpreted the policy language “as soon as
practicable” to mean within a reasonable time considering all the
Gregory v. Allstate Ins. Co., 214 S.E.2d 696, 698
(Ga. Ct. App. 1975).
Therefore, it is necessary to evaluate the
circumstances, this determination sometimes can be made as a matter
See Hathaway Dev. Co. v. Illinois Union Ins. Co., 274 F.
App’x 787, 791 (11th Cir. 2008) (per curiam) (citing Canadyne–
Georgia Corp. v. Continental Ins. Co., 999 F.2d 1547, 1555 (11th
Cir. 1993)). But typically, “[w]hether the excuse or justification
was sufficient and whether the insured acted diligently in giving
the notice are generally questions of fact, to be determined by
the jury, according to the nature and circumstances of each
individual case.” State Farm Fire & Cas. Co. v. Walnut Ave.
Plantation Pipeline Co. v. Royal Indem. Co., 537 S.E.2d 165, 167
(Ga. Ct. App. 2000)); accord Progressive Mountain Ins. Co. v.
Bishop, 790 S.E.2d 91, 95 (Ga. Ct. App. 2016).
The Court finds that the circumstances presented here create
a genuine fact dispute as to whether Vintage gave notice of its
claim as soon as practicable.
It is clear that the Court cannot
substitute a “bright line” deadline in the Policy when National
chose to give its insured “some leeway in providing notice of a
claim or suit or occurrence to an insurer.”
Ins. Co. v. Cason, 626 F. App’x 916, 919 (11th Cir. 2015) (per
curiam) (quoting Park Pride of Atlanta v. City of Atlanta, 541
S.E.2d 687, 691–92 (Ga. Ct. App. 2000)); see also Bishop, 790
S.E.2d at 95 (“[T]here is no bright-line rule on how much delay is
Consequently, the fact that Vintage gave notice
nineteen months after the event it now maintains gives rise to its
claim is certainly not dispositive.
If National had wanted to
impose specific time limits, it could have “us[ed] different, less
flexible contractual language that establishes precise deadlines.”
Bishop, 790 S.E.2d at 97.
To find that the length of delay,
standing alone without considering the surrounding circumstances,
determines whether notice was as soon as practicable would rewrite
the “reasonableness” and “practicable” elements out of the rule
and reduce the requirement to an arbitrary one tied solely to
“length of delay.” Although the length of the delay standing alone
is not dispositive, it is obviously not irrelevant.
It must be
considered in conjunction with the reasons for it to determine
whether the notice was as soon as reasonable and practicable.
Here, Mr. Patel filed his claim within a few days of being
informed by his roofing contractor that his persistently leaky
roof was caused by previous hail damage.
had not connected the leaks to hail.
Before that report, he
And without that connection,
he would have no covered occurrence under the National Policy.
The damage to his roof would only be covered if it was caused by
the hailstorm, so until he made that connection he had no reason
to report a claim to National.
Filing a claim within a few days
of becoming aware of a covered occurrence would certainly satisfy
the as soon as practicable requirement.
The question here is whether it was reasonable for Vintage
not to have made the connection earlier.
Should Mr. Patel have
known as soon as his roof began leaking that the leaks could have
been caused by the hailstorm that hit two months earlier?
he, at a minimum, have had someone crawl up on the roof to try to
make that assessment?
Or was it reasonable for him to be focused
on simply trying to get that roof fixed so his hotel guests would
remain dry and safe?
Was it reasonable for him not to connect the
leaky roof and the storm based upon the storm having occurred a
distant two months before? Would a reasonable person have expected
there to have been leaks sooner, in closer proximity to the storm
if the storm in fact caused them?
Or should this small business
owner have determined, in the midst of trying to fix the leaks,
that the hailstorm could have weakened the roof and that it was
entirely feasible that such weakening did not culminate in actual
leaks until two months later?
Perhaps he should have studied the
weather for those two months following the storm and if there was
not much rain for those two months maybe he should have ascertained
that is why the leaks did not manifest themselves earlier.
maybe it’s just not very believable that he did not know sooner
than he did that there was a connection between the damage and the
These are only a sampling of the questions that arise from
the circumstances presented here.
resolved in National’s favor.
And they may ultimately be
But in our system, which cherishes
the right of citizens to have their cases decided by a jury, it
would be sheer arrogance for a single judge to think he has the
right to decide them as a matter of law.3
National’s motion for
summary judgment based upon lack of prompt notice is denied.
Does a Genuine Fact Dispute Exist Regarding Causation?
sufficient evidence to create a genuine factual dispute regarding
Relying upon expert testimony, National argues that
the hotel’s roof damage was caused by general wear and tear or
deterioration of the roof, which is not covered under the Policy.
Vintage responds with expert testimony of its own, submitting
affidavits from Calob Morris, a roofing contractor who opines that
As noted previously, whether notice was given as soon as practicable
can sometimes be decided as a matter of law. But in most of the cases
where this issue has been resolved as a matter of law, there was a
substantial unjustified delay after the insured became aware of the
See e.g. Hathaway, 274 F. App’x at 789 (faulty
workmanship by subcontractors); Diggs v. S. Ins. Co., 321 S.E.2d 792,
793 (Ga. Ct. App. 1984) (automobile collision); State Farm Fire & Cas.
Co. v. LeBlanc, 494 F. App’x 17, 22 (11th Cir. 2012) (per curiam) (filing
of lawsuit covered by insurer defense and indemnification provisions);
Cotton States Mut. Ins. Co. v. Int’l Surplus Lines Ins. Co., 652 F. Supp.
851, 856 (N.D. Ga. 1986) (filing of lawsuits for claims covered by
professional liability coverage). Here, Vintage filed its claim within
a few days of connecting the roof damage to the hailstorm. Thus, a jury
could reasonably conclude that there was no substantial delay in
reporting after Vintage learned of the insured occurrence.
the Storm caused the roof damages.
If Morris’s opinions may be
considered by the Court, a genuine factual dispute clearly exists
Thus, National seeks to exclude Morris’s opinions
from the Court’s consideration.
It first argues that Morris was
maintains that his opinions do not satisfy the requirements of
Federal Rule of Evidence 702.
Morris was Sufficiently Disclosed
Federal Rule of Civil Procedure 26(a)(2)(B) requires that a
written report prepared and signed by an expert witness must
Fed. R. Civ. P. 26(a)(2)(B).
that Morris was not retained as an expert for this litigation but
was hired as a contractor to inspect the roof in an attempt to fix
the roof damage.
During the course of that investigation, he
discovered that the roof damage was caused by the Storm.
Aff. ¶ 6, ECF No. 16-5; Morris Suppl. Aff. ¶¶ 11-12.
Vintage’s contention that it did not consider Morris to be a
“retained expert” under Rule 26 is not frivolous, Vintage was
mistaken. But the Court finds that Vintage should not be prevented
from using him under the circumstances presented here.
Vintage substantially complied with the disclosure requirements
and any deficiency was not prejudicial to National.
Although Vintage did not provide a formal Rule 26(a)(2)(B)
report for Morris, it did inform National that it planned to rely
on Morris’s expert testimony, which was included in two affidavits
provided by Morris.
Vintage disclosed Morris’s background, the
scope of his testimony, and contact information.
It also informed
National that Morris would “provide expert testimony regarding the
nature and cause of the damage[.]”
Def.’s Mot. to Strike Ex. A,
Pl.’s Expert Designation 1 (Dec. 18, 2020), ECF No. 18-1. National
was clearly on notice that Vintage planned to use Morris to connect
the Storm to the roof damage.
Vintage’s disclosures substantially
provided National with the information required to be disclosed
under Rule 26(a)(2)(B).
The Court also is unconvinced that National suffered any
prejudice by Vintage’s alleged deficient disclosures.
disclosed Morris on December 18, 2020—the deadline the parties
agreed to for Vintage’s expert disclosures—before discovery closed
on February 16, 2021 and before National filed its summary judgment
motion on March 8, 2021.
IV. F., ECF No. 9.
See Scheduling & Disc. Order §§ IV.A,
This disclosure included Morris’s name,
It stated that Morris planned to offer “expert
testimony regarding the nature and cause of the damage, the
necessity of the repairs, the cost to repair the damage.”
National does not argue that it was prevented from taking Morris’s
deposition to probe his opinions, the basis of which had been
disclosed before discovery expired.
Under these circumstances,
the Court declines to exclude Morris’s opinions for deficient
Morris’s Expert Testimony is Admissible
National also seeks to exclude Morris’s testimony pursuant to
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 597 (1993).
It argues that (1) Morris is not
qualified to render an expert opinion in this case, (2) his
methodology is unreliable, and (3) his opinions would be unhelpful
to the jury.
As to his qualifications, Morris is a roofer who has worked
Morris Suppl. Aff. ¶¶ 3-5.
During his tenure
with DreamWorks, Morris has received education and training on
“how to repair and replace roofing systems, including siding,
gutters, windows, and decks.”
Id. ¶ 3.
He has used this training
to understand and determine the cause of damage to roofing systems
so that they can be repaired properly.
Id. ¶ 4.
reasonable inferences in Vintage’s favor, the Court finds that
Morris has implemented this training by actually working on roofs
to fix damage to them and/or to evaluate the source of the damage.
Id. ¶ 3, 5.
Morris’s qualifications are primarily experience-based.
certainly qualify as an expert as long as “his preparation is of
a kind that others in the field would recognize as acceptable.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
the testimony to be considered by the jury, the Court must find
The Court’s goal is to ensure that an expert, “whether
basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.”
Kumho Tire Co., 526 U.S. at 152.
The Court is satisfied based on
the current record that Morris’s training and experience qualifies
him to opine as to whether roof damage was likely caused by a
In addition to Morris’s qualifications, National attacks the
reliability of his methodology.
To reach his opinion, Morris got
on the roof of the Comfort Inn and Suites, personally inspected
reviewed weather data regarding the Storm including wind speeds
and hail size in the vicinity of the hotel.
Morris Suppl. Aff.
He then explained how his assessment of this data
supported his opinion that the Storm likely caused damage to the
The Court finds that Morris’s methodology was sufficiently
methodology, National argues that Morris’s testimony would not be
helpful to the jury.
Rule 702’s helpfulness requirement rests
upon the notion that expert opinion testimony should be restricted
to “matters that are beyond the understanding of the average lay
person.” United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir.
Otherwise, it is unnecessary.
Using his experience-based
qualifications and a methodology that is reasonably designed to
assess the nature and cause of damage to roofs, Morris intends to
testify that the damage to Vintage’s roof was likely caused by the
This subject matter is “beyond the understanding of
the average lay person.”
Consequently, it would be helpful
to the jury.
“The Court fully understands its role as the gatekeeper to
exclude irrelevant or unreliable expert testimony.” Grand Rsrv. of
Columbus, LLC v. Prop.-Owners Ins. Co., No. 4:15-CV-53 (CDL), 2017
Interestingly, National’s expert used a strikingly similar methodology.
See Ex. A to Def.’s Mot. for Summ. J. Ex. E, Garrido Expert Report 8,
ECF No. 14-7.
WL 2618952, at *8 (M.D. Ga. Jan. 9, 2017), aff'd, 721 F. App'x 886
(11th Cir. 2018).
“This gatekeeping role, however, ‘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) (quoting Allison v. McGhan Med. Corp., 184 F.3d
appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596.
National will have this opportunity at
For the foregoing reasons, the Court denies National’s motion
to exclude Morris.
National’s motion for summary judgment (ECF No. 14) and motion
to exclude Morris (ECF No. 18) are denied.
IT IS SO ORDERED, this 6th day of October, 2021.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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