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
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