Greater Hall Temple Church of God v. Southern Mutual Church Insurance Company

Filing 121

ORDER re 113 Plaintiff's Objections to the Magistrate Judge's Order. Plaintiff's Objections are OVERRULED and the Magistrate Judge's 107 Order is AFFIRMED. Signed by Judge Lisa G. Wood on 4/20/2021. (csr)

In the United States District Court
For the Southern District of Georgia
Brunswick Division
GREATER HALL TEMPLE CHURCH OF
GOD IN CHRIST, INC.,

*
*
*
*
*
*
*
*
*
*

Plaintiff,
v.
SOUTHERN MUTUAL CHURCH
INSURANCE COMPANY,
Defendant.

CIVIL ACTION NO.: 2:17-cv-111

ORDER
Before the Court are Plaintiff’s Objections to portions of
the Magistrate Judge’s Order dated April 1, 2021 and Defendant’s
Response to Plaintiff’s Objections.
Order,

the

Magistrate

Judge

ruled

Dkt Nos. 113, 116.
on

Defendant’s

In that

motion

on

evidentiary objections, motion in limine, and motion in limine to
exclude testimony proffered by Plaintiff’s witnesses not properly
disclosed in written discovery.
careful

review,

Plaintiff’s

Dkt. Nos. 88, 90, 100.

Objections

are

OVERRULED

Magistrate Judge’s April 1, 2021 Order is AFFIRMED.

AO 72A
(Rev. 8/82)

After

and

the

Dkt. No. 107.

BACKGROUND
This case involves an insurance dispute between the parties;
specifically, whether damage from a hurricane to Plaintiff’s roof
is covered by its insurance policy from Defendant.

In preparation

for trial, Defendant filed a motion on evidentiary objections,
dkt. no. 88, motion in limine, dkt. no. 90, and motion in limine
to

exclude

properly

testimony

disclosed

in

limine”), dkt. no. 100.
to

exclude

certain

proffered

by

written

Plaintiff’s

discovery

witnesses

(“second

motion

in

In its motions, Defendant asked the Court

evidence

and

testimony.

Plaintiff

responses, opposing only some parts of Defendant’s motions.
Nos. 97, 98, 101.

not

filed
Dkt.

Additionally, the Magistrate Judge held a

hearing on March 25, 2021.

Dkt. 106.

The hearing focused on

Defendant’s objections to Plaintiff calling Michael Collins to
testify and Plaintiff using Collins’s photos at trial.
The Magistrate Judge issued an Order on these motions.

Dkt.

No. 107. The Magistrate Judge’s Order sustained in part, overruled
in

part,

and

denied

as

moot

in

part

Defendant’s

motion

on

evidentiary objections, dkt. no. 88; granted Defendant’s motion in
limine, dkt. no. 90; and granted in part and denied in part
Defendant’s motion in limine to exclude testimony proffered by
Plaintiff’s witnesses not properly disclosed in written discovery,
dkt. no. 100.

AO 72A
(Rev. 8/82)

Dkt. No. 107.

2

Before the Court now are Plaintiff’s objections to six of the
Magistrate Judge’s rulings.
First,

Plaintiff

contends

Dkt. No. 113 (citing Local R. 72.2).
the

Magistrate

Judge

incorrectly

sustained Defendant’s objection to Plaintiff’s Exhibit 6, i.e.
photographs taken by Defendant’s non-testifying expert, Michael
Collins.

Id. at 1–5.

Judge’s

ruling

which

Plaintiff also objects to the Magistrate
granted

Defendant’s

motion

prohibit Plaintiff from calling Collins to testify.

seeking
Id.

to

Next,

Plaintiff argues the Magistrate Judge erroneously dismissed its
argument

that

the

Cram

Report

should

be

admissible

because

Defendant relied on it in its motion for summary judgment. 1
at 5–6.

Id.

Additionally, Plaintiff challenges the Magistrate Judge’s

ruling that Plaintiff is prohibited from presenting argument about
(1) the applicable deductible and (2) damage to the parsonage
building.
Magistrate

Id.

at

Judge’s

6–7.

Finally,

ruling

prohibiting

expert testimony on attorney’s fees.

Plaintiff

Defendant

filed

a

Response

Plaintiff

challenges
from

the

offering

Id. at 7–8.
to

Plaintiff’s

Objections.

Defendant argues the Magistrate Judge’s rulings were not clearly
erroneous or contrary to law and thus urges the Court to overrule
Plaintiff’s Objections.

Dkt. No. 116.

However, the Magistrate Judge overruled Defendant’s objection
seeking to exclude the Cram Report because the arguments were so vague
he could not conclude the Report was inadmissible on all grounds. Dkt.
No. 107 at 2, 17–20.

1

AO 72A
(Rev. 8/82)

3

DISCUSSION
I.

Standard of Review
When considering a party’s objections to a magistrate judge’s

ruling on a non-dispositive matter, the district judge must “modify
or set aside any part of the order that is clearly erroneous or is
contrary

to

law.”

Fed.

R.

Civ.

magistrate judge’s ruling stands.

P.

72(a).

Otherwise,

the

“A ruling is clearly erroneous

where either the magistrate judge abused his discretion or the
district court, after reviewing the entirety of the record, is
left with a definite and firm conviction that a mistake has been
made.”

Jackson v. Deen, No. 4:12-CV-139, 2013 WL 3991793, at *2

(S.D. Ga. Aug. 2, 2013) (citing Pigott v. Sanibel Dev., LLC, No.
CIVA 07-0083, 2008 WL 2937804, at *5 (S.D. Ala. July 23, 2008)).
A decision by the magistrate judge is contrary to law when it
“fails to follow or misapplies the applicable law.” Id. (citations
omitted).
II.

Analysis
A.

Objections Related to Michael Collins

First, Plaintiff objects to the Magistrate Judge’s ruling
prohibiting Plaintiff from calling Michael Collins, Defendant’s
non-testifying

expert,

to

testify

at

trial

and

Plaintiff from using photographs taken by Collins.
at 1–5.

prohibiting
Dkt. No. 113

In Defendant’s Response, it asserts the Magistrate Judge

correctly applied applicable law and Plaintiff cannot meet the

AO 72A
(Rev. 8/82)

4

clearly erroneous or contrary to law standard required for this
Court to modify or set aside the Magistrate Judge’s Order.
The parties’ arguments on the issue of Collins’s testimony
and

admissibility

of

the

photographs

he

took

are

merely

a

restatement of the briefing considered by the Magistrate Judge and
arguments presented at the hearing on the issue.

See Dkt. No.

107.
While Plaintiff takes issue with several findings made by the
Magistrate Judge, the objections are meritless.

First, Plaintiff

asserts Defendant disclosed Collins as someone who “did have
discoverable

information.”

Dkt.

No.

113

at

2

(emphasis

in

original). However, this assertion is not supported by the record.
In

the

initial

disclosures

provided

to

the

Court,

Defendant

identified Collins as an “individual likely to have discoverable
information.”

Dkt. No. 101-1 at 1.

Further, even if Collins were

identified as someone with discoverable information, Plaintiff
fails to explain how this changes the analysis or represents a
waiver of any protections by Defendant.

As the Magistrate Judge

explained, the relevant inquiry was whether Defendant was free to,
and did, designate Collins as a non-testifying expert even after
the initial disclosures.

See Dkt. No. 107 at 8–9.

Here, the

Magistrate Judge correctly found Collins was a non-testifying
expert based on the record.

Moreover, Plaintiff still fails to

point to any case law supporting its argument that identification

AO 72A
(Rev. 8/82)

5

of a non-testifying expert in initial disclosures prohibits a party
from asserting the protections of Federal Rule of Civil Procedure
26(b)(4)(D).
Additionally,

Plaintiff

argues

the

Magistrate

Judge’s

statement that “Plaintiff was fully able to obtain all the same
facts and opinions by engaging its own consulting expert” was
erroneous because it never hired a consulting expert.
113 at 3.

Dkt. No.

However, the Magistrate Judge’s statement, when read in

context of the Order, is not confusing.

The Magistrate Judge

explained Plaintiff may have been able to call Collins to testify
by demonstrating exceptional circumstances or by showing it could
not have obtained the same information Collins did by hiring its
own expert.

See Dkt. No. 108 at 12.

But Plaintiff failed to make

such a showing and instead the Magistrate Judge observed Plaintiff
could have hired its own consulting expert, i.e., Plaintiff was
theoretically able to obtain the same facts and opinions.
Next, Plaintiff objects to the Magistrate Judge’s ruling on
the photographs, which the Magistrate Judge found were protected
by

the

work-product

Procedure 26(b)(3).
not

protected

doctrine

found

Id. at 13.

work-product

thoughts or impressions.

in

Federal

Rule

of

Civil

Plaintiff argues photographs are

because

they

do

no

convey

mental

Id.

Plaintiff appears to be drawing a distinction between factual
product and opinion work product.

AO 72A
(Rev. 8/82)

6

However, this distinction does

not determine whether something is protected by Rule 26(b)(3)(A)
but

rather

protections. 2

the

showing

that

is

required

to

overcome

those

The Eleventh Circuit has held the disclosure of

factual work product may be compelled upon a requisite showing of
substantial need and undue hardship whereas opinion work-product
enjoys a nearly absolute immunity.

To put it differently, opinion

work product is discoverable only in “very rare and extraordinary
circumstances.” Cox v. Admin. U.S. Steel & Carnegie, 17 F.3d 1386,
1422 (11th Cir. 1994).
Here, the Magistrate Judge did not rule the photographs at
issue are absolutely protected by the work-product doctrine but
instead analyzed whether Plaintiff made the necessary showing—
substantial need and undue hardship—to overcome the work-product
privilege applied to photographs.

Dkt. No. 107 at 16 (citing

Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir.
1984)).

The Magistrate Judge determined Plaintiff did not meet

this showing, and Plaintiff offers no argument in its Objections
to the contrary.

Courts routinely find photographs are protected by work-product
privilege, even if they are discoverable due to an exception to that
doctrine.
Pinkey v. Winn-Dixie Stores, Inc., No. CV214-075, 2015 WL
858093, at *6 (S.D. Ga. Feb. 27, 2015) (explaining courts often find
photographs are protected by Federal Rule of Civil Procedure 26(b)(3)
but recognizing that protection is often overcome by a showing of
substantial need).
2

AO 72A
(Rev. 8/82)

7

Finally, the Court addresses Plaintiff’s contention opposing
the Magistrate Judge’s finding that Defendant met its burden of
establishing the photographs were prepared in anticipation of
litigation.

Dkt. No. 113 at 4.

Plaintiff asserts the Magistrate

Judge’s finding that counsel’s testimony established Collins was
hired in anticipation of litigation is incorrect because counsel
never testified.

Indeed, Defendant’s counsel did not testify, as

the Magistrate Judge explained in other parts of the order; rather
than testify, counsel stated facts in her place as an officer of
the court.

See Dkt. No. 107 at 6, 8.

Specifically, Defendant’s

counsel stated in her place that Collins was first hired after
Plaintiff filed its complaint.
proffer at the hearing.

Plaintiff had no objection to this

To the extent Plaintiff now objects to

the form of proof, defense counsel is DIRECTED to reduce this
proffer to a sworn statement by April 21, 2021. If defense counsel
is unable to do so, the Court may revisit this determination. Thus,
the Court PROVISIONALLY OVERRULES Plaintiff’s objection and finds
the Magistrate Judge correctly concluded Collins was hired in
anticipation of litigation.
B.

Objections Related to the Parsonage Building Damage

Next, Plaintiff objects to the Magistrate Judge’s granting
the portion of Defendant’s motion to exclude references to damages
to the parsonage building and amounts owed for such damage.
No. 113 at 6.

AO 72A
(Rev. 8/82)

Dkt.

Specifically, Plaintiff claims it was “inaccurate”
8

for the Magistrate Judge to grant Defendant’s motion as unopposed.
Id. at 6.

The Court has reviewed the record and agrees Plaintiff

did not object to Defendant’s motion related to the parsonage
building damage.

Yet, Plaintiff now insists that references to

such damage should be admissible because “damage to the parsonage
is mentioned in the Complaint.” Dkt. No. 113 at 6-7.

However,

Plaintiff fails to demonstrate how “mentioning” this damage in the
Complaint constitutes an opposition to a motion in limine filed
years later.

Moreover, the specific damage described in the

Complaint was that “heavy rains” caused “extensive damage to the
structure of the sanctuary” and “[t]he insured sanctuary suffered
damage in an amount of not less than $215,237.38.” 3
1.

Dkt. No. 1-

Damage to the sanctuary is not the same as the damage to the

parsonage building. Thus, even if the Court were to consider the
language of the Complaint, this still does not serve as opposition
to Defendant’s motion in limine.
Plaintiff also contends that damage to the parsonage is
“described in the Pretrial Order.” Dkt. No. 113 at 7. As an initial

No damages are sought for the parsonage in the Complaint. Indeed,
Plaintiff’s claim for bad faith, stated in its Complaint, confirms
that only damages for the sanctuary are sought. A claim for bad faith
penalties pursuant to O.C.G.A. § 33-4-6 permits the insured to seek a
penalty of up to fifty percent of the liability of the insurer. In its
Complaint, Plaintiff only sought bad faith penalties in the amount of
$107,618.69—which is exactly fifty percent of the alleged sanctuary
damage. Dkt. No. 1-1 at 3. Thus, the Complaint clearly seeks damages
for the sanctuary only; no damages are sought for the parsonage.

3

AO 72A
(Rev. 8/82)

9

point, the parsonage damage was described in the proposed pretrial
order,

submitted

by

the

parties

to

the

Court.

Dkt.

No.

86.

Moreover, Plaintiff fails to demonstrate how describing damage in
a proposed pretrial order can serve as an objection to Defendant’s
later-filed motion in limine; especially when Plaintiff’s actual
response to the motion in limine, dkt. no. 97, is devoid of any
such argument. Plaintiff seems to argue that the Complaint was
automatically amended by the pretrial order. While that can occur,
it does not when, as here, the Defendant specifically objects to
adding the new parsonage claim—long after the deadline to add such
a claim has expired. The fact is, Plaintiff attempted to use the
pretrial order as an amendment vehicle, but Defendant filed a
timely and valid motion in limine and succeeded in stopping any
such late amendment. Plaintiff failed to plead a claim to recover
any damage to the parsonage building in its initial complaint.
Plaintiff has further failed to seek leave from the Court to add
such a claim as required by Fed. R. Civ. P. 15(a). Plaintiff cannot
now use an objection to the Magistrate Judge’s ruling to seek a
new form of recovery in damages to the church parsonage building
or to add additional objections to Defendant’s motion in limine.
As Plaintiff failed to present any argument in its briefing
to the Magistrate Judge on the exclusion of parsonage damage, the
Court need not consider it now.

See Williams v. McNeil, 557 F.3d

1287, 1291 (11th Cir.2009) (approving district court’s refusal to

AO 72A
(Rev. 8/82)

10

consider new argument set forth in objections where party had
opportunity to present such argument to magistrate judge and failed
to do so). Even considering the new arguments, they lack merit.
Accordingly,

the

Court

OVERRULES

Plaintiff’s

Objections.

Plaintiff is prohibited from referencing damages to the parsonage
building and amounts allegedly owed for such damage.
C.

Objections Related to the Policy Deductible

Similarly, Plaintiff challenged the Magistrate Judge’s ruling
that excluded evidence related to the enforceability of the fivepercent deductible.

Dkt. No. 113 at 6–7.

The Magistrate Judge

also granted as unopposed Defendant’s motion to exclude evidence
and argument that would dispute the enforceability of the fivepercent Windstorm or Hail Deductible contained in insurance policy
No. SMP00665400.

Dkt. No. 107 at 26.

The Court has reviewed the

record and agrees Plaintiff did not object to Defendant’s motion
related to the policy deductible.

As Plaintiff failed to present

any argument in its briefing to the Magistrate Judge, the Court
need not consider it now.
Even

considering

See Williams, 557 F.3d at 1291.

Plaintiff’s

argument,

however,

evidence

related to the policy deductible would be excluded because there
is no genuine dispute that the deductible was erroneously applied.
Plaintiff insists that the “applicable deductible is [sic] matters
for the jury’s consideration since conflicting documents may make
the policy terms and conditions an issue for the jury.”

AO 72A
(Rev. 8/82)

11

Dkt. No.

113 at 6.
documents

However, Plaintiff fails to identify any conflicting
that

would

applicable deductible.

present

a

genuine

conflict

as

to

the

In other parts of the record, Plaintiff

has insisted that the two-percent deductible found on a claimed
insurance binder sheet should apply.

See e.g., Dkt. No. 59 at 13.

However, the binder sheet, as a matter of contract law, does not
create a conflict for the jury to decide regarding the applicable
deductible.
into

the

“It is ‘[h]ornbook insurance law that a binder merges

subsequently

issued

policy

so

that

the

terms

and

conditions of the policy, in case of conflict or ambiguity, are
controlling.’”

King v. Allstate Ins. Co., 906 F.2d 1537 (11th

Cir. 1990) (quoting Brister v. Gulf Cent. Pipeline Co., 618 F.
Supp. 104, 110 (W.D. La. 1985), aff’d, 788 F.2d 1564 (5th Cir.
1986)) (second alteration in original).

Furthermore, Georgia law

affirms that the policy takes precedent over the binder sheet
submitted.

See O.C.G.A. § 33–24–33(b) (“No binder shall be valid

beyond the issuance of the policy with respect to which it was
given.”).
Here, the language from the wind and hail endorsement section
of

the

relevant

insurance

policy

clearly

deductible was agreed upon at five percent.

indicates

that

the

Dkt. No. 48-7 at 45.

In its Complaint, Plaintiff submitted that it was insured under
this policy but did not challenge any of the provisions therein.
Dkt. No. 1-1 at 1. The record also includes an Acknowledgment

AO 72A
(Rev. 8/82)

12

provision of the same wind and hail endorsement section, requiring
Plaintiff to set forth its signature to acknowledge that “the
policy or application referenced on this form includes a windstorm
or hail deductible.” 64-1 at 3.

A signature on behalf of Plaintiff

appears below this provision on the Acknowledgment and has not
been disputed before the Court. 4 Id.

Additionally, Plaintiff has

not offered any other argument as to how a genuine conflict
regarding the applicable deductible may be present.
the

Court

OVERRULES

Plaintiff’s

Objections.

Accordingly,
Plaintiff

is

prohibited from introducing evidence or argument challenging the
enforceability of the five-percent Windstorm or Hail deductible.
D.

Objections Related to Attorney’s Fees

Finally, Plaintiff objects to the Magistrate Judge’s holding
that Plaintiff was required to disclose an attorney’s fees expert
during discovery in accordance with the Federal Rules of Civil
Procedure.
granted

Dkt. No. 109 at 7–8. On April 7, 2021, the Court

summary

judgment

on

Plaintiff’s

claim

for

bad

faith

penalties and reasonable attorney’s fees pursuant to O.C.G.A.
§ 33-4-6.

Dkt. No. 108.

Thus, as Plaintiff acknowledges in its

objection, that ruling renders moot any need for testimony as to

In its Motion to Amend/Correct Proposed Pretrial Order, Defendant
relayed Plaintiff had mentioned on counsels’ telephone conferences
that Plaintiff would be disputing the authenticity of the signature on
the Acknowledgment. Dkt. No. 89 at 2. However, Plaintiff did not raise
this issue in its motion in limine response and has not put the
authenticity of the signature before this Court.
4

AO 72A
(Rev. 8/82)

13

attorney’s fees.
decision

of

Nonetheless, Plaintiff still submits that “the

the

Magistrate

Judge

should

[attorney’s fees] ever become an issue.”

be

vacated

should

Dkt. No. 113 at 8.

Assuming attorney’s fees were recoverable, Plaintiff insists in
its objection that expert testimony would not be required because
“the attorney is simply giving an opinion as to what a reasonable
attorney’s fee would be.”

Id.

However, case law makes clear that

“the reasonableness and necessity of the expenses of litigation
and attorney fees are matters for expert opinion.”

Cockfield v.

United States, No. CV212-150, 2013 WL 12157589, at *1 (S.D. Ga.
Dec. 2, 2013) (emphasis added) (quoting Tindall v. H & S Homes,
LLC, No. 5:10-CV-044, 2012 WL 3637745, at *1 (M.D. Ga. Aug. 22,
2012) (citation omitted)).

Accordingly, an attorney’s intent to

testify at trial, even to the reasonableness of attorney’s fees,
should be disclosed under the Federal Rules of Civil Procedure and
an expert report should be filed. Cockfield, 2014 WL 12157589, at
*1.

Nonetheless, the Court’s April 7 grant of summary judgment as

to Plaintiff’s bad faith claim renders Plaintiff’s objection moot.
Accordingly, the Court OVERRULES Plaintiff’s Objections.
CONCLUSION
After an independent and de novo review of the entire record,
the

Court

CONCURS

Recommendation,

AO 72A
(Rev. 8/82)

with

ADOPTS

the

the

Magistrate

Report

14

and

Judge’s

Report

Recommendation

as

and
the

opinion of the Court, and OVERRULES Plaintiff’s Objections, dkt.
no. 113.
SO ORDERED, this 20th day of April, 2021.

HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8/82)

15