Finch et al v. Owners Insurance Company et al

Filing 65

ORDER finding as moot 44 and 50 Motions for Hearing; denying 28 and 57 Motions to exclude expert testimony; granting in part and denying in part 27 Motion for Summary Judgment. Discovery is reopened for specific depositions to be complete d no later than 12/31/2017 and parties are to notify the Court when discovery is complete. Within 10 days thereafter, Defendant will submit an itemized affidavit of additional attorney's fees incurred and Plaintiff will have 5 days to respond. Signed by Chief Judge J. Randal Hall on 12/6/2017. (jlh)

IN THE UNITED

STATES

DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

CARRIE FINCH,

*
*

Plaintiff,

*
*

v.

*

OWNERS INSURANCE COMPANY,

CV

616-169

*
•

Defendant.

*

ORDER

Before

(doc.

the

28)

Court

motions

Defendant's motion

has

given

the

summary

are

to
for

Plaintiff

Plaintiff

exclude
summary

notice

judgment

of

rules,

in opposition,

Therefore,

notice

772

F.2d

the

822,

825

judgment.

(Doc.

Cir.

the

summary
right

of

1985)

For the following reasons,

motions

exclude

expert

to

Defendant's

testimony
27.)

judgment
file

The

and
Clerk

motion

and

affidavits or

and the consequences of default.

satisfied.
to

and

witness

requirements

(11th

57)

expert

of the

other materials

(doc.

testimony

Griffith

(per

v.

curiam),

Wainwright,

have

been

Plaintiff and Defendant's
(docs.

and Defendant's motion for summary judgment

28,
(doc.

57)
27)

are

DENIED

is GRANTED

IN PART and DENIED IN PART.1

1 Both parties have also moved for a hearing on Defendant's motions.

Because

the Court concludes there is no need for oral argument in this matter and has

I.

In
Finch,

January

2016,

discovered

Plaintiff Carrie

damage

(Donna Finch Dep.,

BACKGROUND

Doc.

to

the

27-1,

Finch's

roof

of

33:17-21.)

daughter,

Plaintiff's

Donna
house.2

The damage was caused

by a hailstorm that passed over the house in June 2015.

Dep.,

Doc.

27-2,

31:2-4.)

After noticing the damage,

(Dukes

Plaintiff

filed a claim with Defendant Owners Insurance Company under the

Plaintiff's homeowners insurance policy
Finch Dep.,

on January 19,
was

claim adjuster

2016.

damaged

John

(Dukes Dep.,

by

hail,

Dukes

roof

Doc.

sometime

27-4,

between

Defendant

April

she

learned

Finch Dep.,
Mr.

and

Dukes

Doc.

that

27-3,

brought

the

house

57-60.)

engineer

had

check

for

the

Plaintiff replaced

2016.

(Minick

mold

damage.

Plaintiff filed a

Ron

Powers

Dep.,

to

new claim and

inspect

the parties'

(Darrell

motions

the

home

(docs.

on

44,

50)

DENIED.

2 Plaintiff's house was purchased in 1996.
originally
her

(Id.)

a

before Plaintiff had replaced her

resolved all pending motions before it,
are

house

After deciding the

mailed

May

the

25:19-21.)

Around mid-February 2016,
roof,

inspected

32:2-14.)

estimated cost of repairing the roof.
the

(Donna

46:12-14. )

Defendant's

roof

("the Policy").

shared

children

equally

Darrell

and

between
Donna

Plaintiff,

Finch.

(Id.)

(Doc.
her
In

27-12,

1.)

husband,
1998,

a

Ownership was

Juvay

Finch,

one-fifth

and

interest

was conveyed to Debra Minick.
(Id. at 3.)
Despite the house's shared
ownership, the homeowners insurance policy only lists Plaintiff and Juvay
Finch.

(Doc.

27-8,

3.)

February 23,

Dukes

that

improper

2016.

the

(Dukes Dep.,

cause

of

construction,

84:3-6.)

(Dukes Dep.,

inadequate

claims

an

contract
Court

2016,

removed

agreement,

Screven

the

March

(Doc.

9.)

County,

2016.

(Doc.

to

19,
On

the

2017,

March

witness reports of

Tim Durden.3
complained
Durden

and

on

According

until

did

maintenance.

the

water,

(Id.

Policy does

at

not cover

Plaintiff received Defendant's

(Compl., 1 38.)

action

December 13,

surface

Plaintiff sent a demand to have Defendant

Plaintiff

and bad faith refusal

of

was

letter refusing to pay for the mold damage.

pay for the mold damage.
to

Powers told Mr.

78:13-16.)

On July 25,

come

2016,

Mr.

damage

and

On March 10,

coverage position

mold

however,

Defendant,

such damages.

the

54:7-15.)

basis

(Id.

of

original

not

at

for

breach

the

1.)

diversity

to
16,

scheduling

furnish
2017,

reports

satisfy

of

any

of

Superior
Defendant

jurisdiction

Mr.

Federal

order,

expert

Plaintiff

Stuart Gregory,

the

suit

on

1-2.)

(Doc. 28, Exs. A.-C.)

that

filed

to pay a claim in

Georgia.

the

The parties could not

Plaintiff

witness

disclosed

Frank Parson,

the

had

report.
expert

Susan Cox,

and

On May 9, 2017, Defendant
Gregory,
Rule

of

Ms.

Cox,

Civil

and

Mr.

Procedure

3 Although Defendant was presumably satisfied with Mr. Parson's first report,
Plaintiff gave Defendant a modified report on the day of Mr.
Parson's
deposition.
(Frank Parson Dep., Doc. 27-5, 35:13-16.)
Whereas the original
report was
limited to mold damage,
the new report included structural
damages.
(Id. at 36:14-19.)

26(a)(2)(B).
reports

for

However,
still

(Doc. 34-1, 27.)
those

experts

Defendant

claims

during

May

Mr.

damage.

2017,

5,

2017,

May

23,

2017.

Plaintiff's

Gregory's

Defendant's

(Id.

supplemental

counsel

investigation

(Rountree Aff.,

Doc.

51-1,

into

Cox's

(Doc. 34-1,
more

challenge Mr.

testimony because of

99.)

met

the

St 4.)

Defendant informed Plaintiff that

Gregory and intended to

a

on

at

37,

reports

42)

were

insufficient.

On

Ms.

Plaintiff disclosed supplemental

with

cause

However,

report.

Gregory,

Plaintiff's

close of discovery on July 3,

(Id.

2017,

Gregory

of

the

mold

on June 26,

it would not depose Mr.
Mr.

at

Mr.

Durden,

and

untimely disclosure.

Plaintiff subsequently had Mr.

comprehensive

Mr.

141.)

Gregory submit

However,

Gregory,

Mr.

at

the

Durden,

and

Ms. Cox had still not been deposed.

II.

A.

Defendant's Motion to Exclude Expert Testimony

Initially,

should
were

be

Defendant

excluded

untimely

and

intends

trial or
expert

at

to

use

a date

witness

argues

because

at

that

Under

a party must
trial.

Fed.

expert
Federal

Additionally,

R. Civ.

Plaintiff's

experts

witness
Rule

reports

of

Civil

identify any expert witness

set by the Court,

report.

all

Plaintiff's

inadequate.

Procedure 26(a)(2)(B),
it

DISCUSSION

ninety

days

before

the party must produce an
P.

26(a)(2)(B).

An

expert

witness

report

helping

parties

experts.
(S.D.

1.

prepare

2012).

1349

or

the

discovery

cross-examination

Klosinski,

District

inadequate

Bearint ex rel.
1339,

facilitate

See Abdulla v.

Ga.

exclude

should

898

find

F.

Supp.

have

courts

untimely

and

"wide

expert

witness

2d 1348,
latitude"

Inc.,

by

rebuttal

reports.

Bearint v. Dorell Juvenile Group,

(11th Cir.

process

1357
to

See

389 F.3d

2004).

Stuart Gregory's Testimony Will not be Excluded

Defendant

complains

that

Mr.

Gregory's

which was disclosed by March 19, 2017,

initial

was inadequate.

report,
Pursuant

to Rule 26(a)(2)(B), an expert witness report must contain:

(i)
a complete statement of
witness will express and the

all opinions the
basis and reasons

for them;

(ii) the facts or
in forming them;

data considered by the witness

(iii) any exhibits that will be used to
or support them;

summarize

(iv) the witness!s qualifications,
including a
list of all publications authored in the previous
10 years;
(v) a list of all other cases in which, during
the previous 4 years, the witness testified as an
expert at trial or by deposition; and

(vi) a statement of the compensation to
for the study and testimony in the case.
A

report

Rule

must

do

26(a)(2)(B)

3463608,

at

*3

more

than

promise

requires.

(S.D.

Ga.

Sept.

See
1,

to

reveal

Sommers
2010)

be

v.

paid

the

information

Hall,

2010

WL

(stating that a " xmaybe

someday I'll

tell

26(a)(2)").

Additionally,

to

the

approach mocks the

duty to

the

Sommers,

an

supplement

initial

Fed.

original

supplement.

duty

expert

Goodbys

of

Gregory's

Creek,

initial

Gregory's

(Doc.

request

months

LLC

close

of

its

by

timely

v.

failed

Ex. A.)

and

be

Ins.

to

to

cured

Co.,

meet

additional

by

2009

a
WL

requirements

three

timely

regarding water

information

did

Although Plaintiff's third

Accordingly,

failing

disclosure.

Plaintiff's response to

26(a)(2)(B),

deadline

end-run

glaring omissions

cannot

Arch

an

The report contained little more

provide

Rule

discovery.

26(a) (2) (B)

and

However,

27, 2009).

report

28,

to

satisfied

past

facilitate

report

nothing to cure these deficiencies.
disclosure

not

promise to "render opinions

intrusion . . . ."
Defendant's

26(a)(2)(E).

Accordingly,

witness

(i)-(iii) of Rule 26(a)(2)(B).
than Mr.

P.

complete

at *3.

1139575, at *2 (M.D. Fla. Apr.

Mr.

R. Civ.

a report does

2010 WL 3463608,

very purpose of Rule

a party has a continuing obligation

supplement her report.

around

in

you'

it

was

submitted

business

days

Plaintiff

disclose

an

three

before

violated
adequate

the
Rule

expert

witness report.

When

a

plaintiff

disclosure deadline,

fails

to

meet

a

Rule

26(a)(2)(B)

she must demonstrate her mistake was

justified or harmless.

Fed. R. Civ.

either

P. 37(c)(1); Mitchell v. Ford

Motor Co.,

of

318

F. App'x 821,

establishing

justified

or

that

An

to

Durden

Citicorp

(M.D.

v.
Fla.

rests

Pfizer,

untimely

reasonable

believe

Nov.

to
on

Inc.,

timely

the

2008).

An

justified.
under

Rule

deadline
delay's

the

Expert

not

Plaintiff

is

set

by

the

so

FSB,

harmlessness,

to

toured

witness

the

house

reports

Gregory

give

the

if

Ga.

it

was

unnecessary.

WL

that

Mr.

Order

during

(N.D.

See

11318338,
is

at

*3

harmless

Id. at *4.

Plaintiff's

Mr.

party.'"

691

untimely disclosure

Plaintiff argues

ask

687,

was

2008

that

Scheduling

substantially

justified

demonstrated

concedes

26(a)(2)(B)

opportunity

counsel

to

has

was

233 F.R.D.

if a defendant suffers no prejudice.

Plaintiff

("'The burden

nondisclosing

disclosure

Bank,

2009)

disclose

disclosure

Trust

25,

(11th Cir.

failure

harmless

(quoting Leathers v.

2006))).

a

824

Gregory

duty
was
that

to

delay
is

an

comply

clear.

As

Defendant

questions

Mr.

her

when

Gregory's

opposing party

was

expert

with

the

for

the

was

given

Defendant's

investigation.

the

opportunity

consult with their own experts and generate useful questions

before meeting with

a party's

2009 WL 1139575,

*3.

at

he was conducting his
Plaintiff

Gregory

to

also

See

Goodbys

A brief meeting with Mr.

Creek,

LLC,

Gregory while

investigation is not a fitting substitute.

points

suggest

expert.

that

to

Defendant's

any

harm

was

refusal

to

depose

self-inflicted.

Mr.

Asking

Defendant to depose an expert witness without an expert witness
report would be asking Defendant to "fly blind."
not

punish

Defendant

Plaintiff's

for

untimely

refusing

disclosure

to

do

was

The Court will

so.

Accordingly,

neither

justified

nor

harmless.

Even

though

26(a)(2)(B),
result.

the

Plaintiff

excluding Mr.

While

Federal

has

failed

this

Fed. R. Civ.

Rule

sanction

.

P.

.

comply

with

Gregory's testimony would be
of

Civil

Procedure

courts discretion to exclude witnesses,
outcome.

to

37(c)(1)

."

a harsh

37(c)(1)

gives

it does not require that

("In addition to

(emphasis

Rule

added)).

or instead of

Additionally,

"[wjithout a finding of bad faith or gamesmanship on the eve of

trial,

many courts

precluding
Inc.,

are

expert

loathe to

testimony."

193 F. Supp.

2d 1252,

1259

invoke

McClain

the
v.

(N.D. Ala.

strong medicine
Metabolife

2002).

9,

2010);

United States,

Durden,

2008

2010 WL 4643279,

WL

11318338,

at

at

*6

*5

Intern.,

This caution

is magnified when exclusion would lead to dismissal.
Collins v.

of

See,

(M.D.

e.g.,

Fla.

(refusing to

Nov.

exclude

testimony of plaintiff's only expert despite plaintiff's failure
to

produce

an

expert

witness

report

before

the

close

of

discovery).

Mr.
to

Gregory's testimony is the

demonstrate

the

source

of

the

only evidence Plaintiff has
water

damage,

which

is

an

essential
does

part

not

of

Plaintiff's

condone

26(a)(2)(B),

complaint.

Plaintiff's

Although

failure

comply

to

the

Court

with

Rule

there is nothing to suggest Plaintiff was acting in

bad-faith or intentionally sandbagging Defendant.

Additionally,

the

by

Court

may

discovery,
Gregory,

also

Plaintiff.4

is

prejudice
its

allowing

testimony

to

scope
the

Accordingly,

Defendant

to

the

associated

Defendant's

because

of

reopening

deposition
costs

motion

Plaintiff's

to

to

of

be

borne

exclude

untimely

testimony

Rule

to

by

Mr.

disclosure

of

Defendant

because

Evidence

testimony

also

his

702,

is

seeks

methods

expert

based

on

to

are

exclude

Mr.

unreliable.

testimony may

sufficient

be

facts

or

Gregory's

Under

admitted
data;

Federal

if
(2)

testimony is the product of reliable principles and methods;

(3)

Mr.

DENIED.

Next,

the

any

restricting

and

Gregory's

cure

the
the

expert
facts

has
of

reliably

the

case.

Pharmaceuticals,

509

focus

expert's

is

exclude

on

the

expert

A Reopening

is

See

U.S.

testimony

discovery

applied

579,

the

also

Daubert

588-89

principles

if

principles

it

appropriate

in

this

methods,

a

large

case

the
and

and methods
Merrell

Dow

Although

(1993).

and

contains

v.

(1)

the

court

may

analytical

gap

because

a

trial

is

not

imminent,
reopening discovery for
the sole purpose of deposing expert
witnesses will avoid prejudice to Defendant, and further discovery is likely
to lead to additional

evidence.

See

Fed.

R.

Civ.

P.

16(b)(4)

("[A scheduling

order] may be modified only for good cause and with the judge's consent.");
Durden, 2008 WL 11318338, at *7 (listing the factors considered to determine
good cause).

between the data

relied upon and the

States v. Frazier,

Defendant

387 F.3d 1244,

argues

that

opinion rendered.

1260

Mr.

(11th Cir.

Gregory's

United

2004).

conclusions

are

entirely based on temporal proximity between when the storm hit
and

when

Circuit
solely

Plaintiff

has
on

Inc. , 613

Int'l,

first

noticed

repeatedly held that

temporal

proximity.

F.3d 1329,

Inc.,

401

1343

F.3d

water

expert
See,

(11th Cir.

1233,

damage.

1248

The

testimony may not

e.g.,
2010);

(11th

Kilpatrick
McCain v.

Cir.

expert's

7377226,

*6

opinion.

(S.D.

Gregory's

Mr.

sources

of

Fla.

report

Dec.

For

frequency of

v.

Carnival

16, 2016).

reveals

support.

location and

Sampson

Corp.,

Additionally,

fleshed

out

opinions

have

example,

Mr.

Gregory

points

on

the

second

multiple
to

floor

(Doc.

the
and

34-1,

the Court is reluctant to exclude an expert

through

motion to exclude Mr.

2.

WL

A cursory examination of

witness before the strengths and weaknesses
be

support
2016

his

stains

Breg,

However,

that

water

rely

Metabolife

used to

excludes other possible sources of water intrusion.

108.)

v.

2005).

this does not mean temporal proximity cannot be
an

Eleventh

deposition.

of

his opinions can

Accordingly,

Defendant's

Gregory's testimony is DENIED.

Frank Parson's Testimony Will Not be Excluded

Although Mr.

repairing

Parson's initial report—detailing the cost of

Plaintiff's

house—complied

10

with

Rule

26(a) (2) (B),

Defendant complains that on

Plaintiff provided
included
mold

cost

a modified report.

estimates

damage,

the day of Mr.

whereas

based

the

on

Parson's deposition,

The

supplemental

structural

original

only

damage

included

Defendant moves to exclude any portion of Mr.
based

on

the

report.

A

when

it

time

party may

initial

v.

discovers

Columbia

2014).

report

structural

supplement

WL

damage

no

was

was

as

damage.

supplemental

witness

unavailable

*3

at

the

LLC

(S.D.

unavailable

report

Investors,

Creek

explanation

report.

mold

the

expert

at

well

Parson's testimony

in

Jones

12618171,

offered

first

an

that

disclosed.

2014

has

identified

information

was

Cnty.,

Parson's

damage

only

new

Plaintiff

regarding
Mr.

structural

as

report

Ga.

why

when

Oct.

29,

information

she

Accordingly,

disclosed

Plaintiff's

supplemental report is untimely and violates Rule 26.

However,
available
Parson's

Mr.

as

option

mentioned
to

supplement

Gregory's

alleviated.
itemized

Plaintiff.

list

handle
is

Defendant
of

the

untimely

not

testimony,

as

incurred,

Defendant's

is

disclosures.
to

prejudice

re-depose

costs

exclusion

essential

the

may

Accordingly,

above,

Mr.

only

Although

Plaintiff's

to

which

motion

will

to

and
be

as

may

be

submit

an

borne

by

exclude

Parson's testimony based on his supplemental report is DENIED.

3.

Tim Durden's Testimony Will Not be Excluded

11

Mr.

case

Defendant

Parson

one

Mr.

Finally,
Mr.

Durden

Defendant moves to exclude Mr.

has

never

turned

in

an

would satisfy Rule 26(a)(2)(B).

expert

However,

Durden's testimony.
witness

report

that

Plaintiff argues that

Mr. Durden is not required to produce an expert witness report.5
Expert

witness

"retained

or

Fed. R. Civ.

witness

2013

expert

209224,
who

at

was

one

Plaintiff

claims

and

the

*3

that

has

Mr.

to

not

when

provide

a

witness

expert

required

to

v.

State

Farm

Ga.

(S.D.
to

deposition

Court

Accordingly,

is

Jan,

Southard

hired

attended

required

is

testimony."

An expert whose opinion arises from his

involvement
See

only

employed

26(a)(2).

report.

WL

are

specially

P.

ground-level

reports

was

Mr.

not

repair

Durden

exempt

is

given
exempt

17,

Fire

from
hired

any
from

Rule

and

Co.,

an

only

26(a) (2) (B)) .

repair

reason

expert

(finding

home

Rule
to

an

& Cas.

2013)

plaintiff's

Durden was

been

produce

to

her

home,

doubt

this.

26(a) (2) (B) ,

and

Defendant's motion to exclude his testimony is DENIED.
B.

In
Mr.

Plaintiff's Motion to Exclude Ron Powers'

her

Powers

Plaintiff

5

While

motion
and Mr.

argues

Defendant

to

exclude,

Plaintiff

Gregory employ the
that

if

correctly

the

points

Court

out

only

Testimony

points

out

same methodology.
excludes

that

Mr.

Plaintiff's

Defendant's motion to exclude expert testimony (doc. 53)
Court finds Defendant has suffered no prejudice and that

that
Thus,

Gregory's

response

to

is untimely, the
Plaintiff's delay

will have no impact on these proceedings.
Advanced Estimating Sys., Inc. v.
Riney,
77 F.3d 1322,
1325
(11th Cir. 1996)
("[When analyzing excusable

neglect,] [p]rimary importance should be accorded to the absence of prejudice
to
the
nonmoving
party
and
to
the
interest
of
efficient
judicial
administration.").

Therefore,

the Court will consider Plaintiff's response.
12

testimony,

it must

Court

not

does

litigation.

exclude Mr.

condone

Since

this

Powers'

kind

Plaintiff

basis for excluding Mr.

of

has

Powers'

testimony as well.

"tit

not

for

tat"

provided

testimony,

The

approach

an

to

independent

Plaintiff's motion is

DENIED.

C.

Defendant's Motion for Summary Judgment

Defendant's motion

for summary judgment will

there is no disputed material
judgment as
must

view

party

draw

Co.,

(1986).
and

facts

and

Indus.

a matter of
the

all

Ltd.

The

must

in

law.

Fed.

light

most

inferences
v.

moving

point

fact and Defendant

to

Zenith

party

in

U.S.

317,

reasonable

on

the

1115

1116.

elements.

(11th Cir.

non-movant

evidence

showing

The

find

must

non-movant

is

The Court

the

non-moving

Matsushita

the

which

U.S.

burden

of

v.

party must

also

the

non-moving

forward

with

a material

cannot

simply

13

party

on

rely

carries

in

on

dispute.

its

the

show no

any
2

of

F.3d

its burden,

significant,

fact

proof

Catrett,

City of Atlanta,

If the movant

587

demonstrates

Celotex Corp.

for

Elec.

574,

fact.

1993) .

there

file

Fitzpatrick v.

come

to

475

bears

entitled to

56(a).

favor.

Corp.,

is

The moving

(1986).

jury could

the essential
1112,

323

its

initially

evidence

P.

favorable

Radio

absence of a disputed material

477

R. Civ.

be granted if

probative

Id.

pleadings

at

and

must respond with affidavits or other forms provided by Rule 56,
Id.

1.

at

1116

n.3.

Plaintiff's Evidence of Replacement Cost
Defendant argues it

Plaintiff has
by

the

failed to

Policy.

provided

under the Policy,

may

only

"Actual

(Doc.

points

demonstrating

cash

27-8,

is

the

value

32.)

so

out

that

replacement

damages
Mr.

covered

Parson

cost.

only

However,

Plaintiff must repair her house before she is

replacement cost.

receive

her house

produce any evidence of

Defendant

testimony

entitled to

is entitled to summary judgment because

If Plaintiff fails to do

actual

cash

includes

a

Plaintiff

severe,

value

of

the

deduction

argues

that

damaged

for

she

house.

depreciation."

because

actual cash value

so,

the

damage

and replacement

to

cost

are one in the same.

Plaintiff provides little support for this

argument.

If

cash

cost,

Policy's

the

superfluous.

actual

value

were

same

between

distinctions

the

the

as

replacement

two

would

Such a reading violates the well-established canon

that courts should give effect to every term in a contract.
Thomas

v.

Restatement

be

Kumar,

525

(Second)

of

S.E.2d

735,

Contracts

736
§

(Ga.

203

cmt.

Ct.
b

App.

(Am.

Law

See

1999);
Inst.

1981) . Plaintiff has not repaired the mold or structural damage

to her house so she is only entitled to its actual cash value.

14

However,
value

is

is

not

Mr.
fatal

replacement

Mr.

to

cost

with

age

how

the

age

of

its

damages

value

Reserve

of

2618952,

Columbus,

*9

(M.D.

failure

Plaintiff's

Parson's testimony is

describe
the

Parson's

to

case.

and

Ga.

Since

condition

still useful.

and condition
is

LLC

testify about

v.

Jan.

of

actual

actual

taken

into

Allowing Mr.
Plaintiff's

an appropriate

Parson to

solution.

Ins.

9,

court

the

value

account,

house

Property-Owners
2017),

cash

cash

affect

In Grand

Co.,

2017

allowed

WL
the

plaintiff to reopen its case so its damages expert could testify

about depreciation.

The court reasoned that the defendant

knew

how the plaintiff was calculating damages and had an opportunity

to

address

defendant

depreciation
was

Additionally,

insurance

instant

required

a

Id.
case.

used

over

to

unfairly

made

ten

prejudiced.

him

qualified

Defendant

knew

deduction

and

Parson's deposition.

years'

estimate

6 See Xactimate,

Therefore,
Id.

the

at

*8.

to

testify

on

The facts in Grand Reserve are analogous to

depreciation

issue during Mr.

has

discovery.

the court found that the expert's experience as an

adjuster

depreciation.
the

not

during

experience

using

depreciation.6

the
could

measure
have

of

explored

Additionally,

Xactimate,

Defendant

damages

Mr.

which

that

Parson

can

concedes

be

that

Valuation ACV, http://xactware.xactimate.archive.s3-website-

us-west-2.amazonaws.com/english/help/cultureeng/html/mod/mod valuation avc.
htm.

15

Xactimate

is

the

industry

standard.

Accordingly,

Defendant's

motion for summary judgment in this regard is DENIED.

2.

Insurable Interest Limitation on Damages

Defendant

insurable

claims

interest

Plaintiff's

the

in

"will not pay more

damages

The

house.

than the

in the covered property at

31.)

in

are

Policy provides

insurable

interest

the time of

the

by

that

her

it

insured has

the loss."

(Doc.

27-8,

An insurable interest is any substantial economic interest

the

insured

O.C.G.A.

§

property.

33-24-4 (b)

prerequisite

to

O.C.G.A.

makes

recovery,

§
an

"once

such

insurable

an

having

33-24-4 (a) .

insurable

shown to exist,

it is the policy at issue,

that

the

Ga.

limited

determines

Farm

(2013)

Bureau

(emphasis

amount

Mut.

in

the

Ins.

insured

Co.

v.

original).

is

interest
interest

a
is

and not the statute,
entitled

Franks,

Where

Although

a

739

to

recover."

S.E.2d

party

has

427,

a

431

divided

interest in land, an insurance policy can limit coverage to that
interest.
(Ga. Ct.

See Allstate
App.

Plaintiff

full

points

policy.

misplaced.
common.

Co.

v.

Amnions,

286 S.E.2d 765,

767

1981) .

possess the house as
the

Ins.

Franks

and

argues

that

her

right

to

a tenant in common entitles her to recover

However,

Franks

Franks,

to

Plaintiff's

involved

739 S.E.2d at

reliance

Franks

tenants

is

joint

tenants,

431.

The distinguishing feature

16

not

on

in

of joint tenancy is that although title is shared,
not divided into fractional shares."
the

other hand,

510

S.E.2d

do

895,

have

897

recovery may be

Id.

fractional

(Ga.

Ct.

limited to

Tenants in common,

shares.

App.

the title "is

See

1999).

Glover

Thus,

the forty-percent

v.

on

Ware,

Plaintiff's

interest she holds

in the house.

Plaintiff
when it

an

next

of

the

insurer

policy is issued,

S.E.2d 543,

Defendant

since

Defendant

waived

knew

that

purchased it.

the

facts

of

full value.

ownership

Co.

v.

Moreover,

If

when

the

545

Ins.

(Ga. Ct. App.

Plaintiff argues that

was

not

the

in

the

house's

reflected

Whether

1977).

Defendant's

sole

agent

Co.

owner

title

v.

of

Woodward,

the

when

knew about

Swanson,

Defendant

662

has

argument

that

would

ignorant

of Plaintiff's

F.2d 1098,

not

1102

produced

convince

this

ownership.7

any

Court

n.2

Plaintiff's

that

Travelers

(5th Cir.

evidence

house

Plaintiff

ownership is ordinarily an issue reserved for a jury.
Indem.

defense

See American Reliable

Plaintiff

was

knows

this

the insurer is estopped from using those facts

limit recovery.

239

that

collected premiums based on the house's

agent

to

argues

or

its

Accordingly,

1981).

made

agent

an

was

Defendant's

motion for summary judgment on this ground is DENIED.

7
to

At summary judgment, the Court must view facts in the light most favorable
Plaintiff

and

draw

all

inferences

in

587.

17

her

favor.

Matsushita,

475

U.S.

at

3.

Defendant's Bad Faith Denial

Defendant

inappropriate
coverage.
when

argues

because

O.C.G.A.

her

that

insurer

Plaintiff's

bad

faith

there was a legitimate dispute

§ 33-4-6 (a)

denies

a

v.

Worthington,

299

is

regarding

provides a remedy for an insured

claim

in

bad

faith.

frivolous and unfounded denial of liability.

Co.

claim

S.E.2d

567,

571

Bad

faith

is

a

First of Ga. Ins.

(Ga.

Ct.

App.

1983).

Whether a denial was made in bad faith is usually a question for
the

jury.

S.E.2d

Stegall

575,

576

entitled to
legal

an

(Ga.

Guardian
Ct.

App.

Life

for

denying

779 S.E.2d 459,

insurer

does

not

a

Ins.

1984).

summary judgment if

ground

Sanders,

v.

claim.

coverage

damage

after

571

factual

or

in

bad

faith

Ct.

App.

Mr.

Powers

informed

surface

was

is

Ct. App.

(Ga.

567,

insurer

(Ga.

299

water,

which was

320

an

Arnica

See First of Ga.

America,

a reasonable

it has

advice of an expert.
S.E.2d

of

However,

463

act

Co.

Mut.

2015).

when

Ins.

it

Co.

1983).
Defendant

not

Ins.

Co.

v.

For example,
relies

on

the

v. Worthington,
Defendant

the

source

covered by the

denied
of

the

Policy.

Defendant was entitled to rely on the advice of its expert when

it

denied

Plaintiff's

claim.

Accordingly,

Defendant's

motion

for summary judgment with respect to Plaintiff's bad faith claim
is GRANTED.8

8 Attorney's
Cary v.
not act

fees are only available if provided by statute or agreement.

Guiragossian, 508 S.E.2d 403, 406 (Ga. 1998).
in bad faith and the Policy does not permit
18

Since Defendant did
Plaintiff to recover

III.

Upon the foregoing,

Defendant's motions

to

CONCLUSION

IT IS HEREBY ORDERED that Plaintiff and

exclude

expert

testimony

(docs.

is

GRANTED

motions

AS

IN

and

for hearings on

MOOT.

permit

PART

Discovery
the

(2)

IN

PART.

these matters

shall

following:

Defendant and

DENIED

(1)

be

Deposition

ready

the
for

Defendant

court

that

pre-trial
shall

44,

and

50)

are DENIED

extended

of

Stuart

both

solely

to

Gregory

by

deposition of Frank Parson by Defendant to be

completed by no later than December 31,

notify

27)

Additionally,

(docs.

reopened

57)

(doc.

are DENIED and Defendant's motion for summary judgment

28,

discovery

is

proceedings.

submit

an

2017.

The parties shall

complete
Within

affidavit

and

ten

the

days

itemizing

Court

is

thereafter,

any

additional

attorney's fees it

incurred in this endeavor and Plaintiff shall

have

respond.

five

precise

days

amount

to

to

be

The

awarded

Court

after

will

then

reviewing

determine

the

the

materials

submitted by both parties.

ORDER
December,

ENTERED

at

Augusta,

Georgia,

this

&

day

of

2017.

HALL, 'CHIEF JUDGE
DISTRICT

IRN

COURT

DISTRICT OF GEORGIA

attorney's fees, Plaintiff has no claim for attorney's fees.
Since Ms.
Cox's testimony is no longer needed, Defendant's motion to exclude Ms. Cox's
testimony (doc. 28) is DENIED AS MOOT.
19