AMCO Insurance Company v. TAF, Inc.

Filing 44

ORDER granting 18 Motion for Partial Summary Judgment; granting 20 Motion Exclude Testimony of William Creeden, P.E.; denying 21 Motion Exclude Testimony of Mark M. Ruddy; denying 22 Motion in Limine; finding as moot 23 Motion in Li mine; finding as moot 24 Motion in Limine; denying 31 Motion for Oral Argument. The Clerk is directed to enter judgment in the amount of $886,792.83 in favor of Plaintiff AMCO and against Defendant TAF. This case shall proceed to trial on the remaining disputed damages. Signed by Chief Judge J. Randal Hall on 9/26/2018. (pts)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
STATEBORO DIVISION

AMCO

INSURANCE COMPANY,

A/S/0

MCCORKLE WHOLESALE, INC.,

Plaintiff,

*

CV 617-022

*

V.

TAF, INC. d/b/a METTER SPORTS
STORE,
Defendant.

ORDER

Before the Court are the following motions: (1) Plaintiff's
motion for partial summary judgment (Doc. 18); (2) Plaintiff's
motion to exclude testimony of defense expert William Creeden,

P.E. (Doc. 20); (3) Plaintiff's motion to exclude testimony of
defense expert Mark M. Ruddy (Doc. 21); (4) Defendant's motion to
exclude testimony of plaintiff expert Michael R. Austin (Doc. 22);

(5) Defendant's motion to exclude testimony of plaintiff expert
Jeffrey C.

Smith

(Doc.

23); (6)

Defendant's

motion to exclude

testimony of plaintiff expert Bryan K. Cash (Doc. 24); and (7)
Defendant's motion for oral argument on each of the aforementioned
motions (Doc. 31).

I. BACKGROUND

The facts of this case are almost entirely undisputed.
2015,

McCorkle

property

Wholesale, Inc.

(the

Statement

^'Property")

of

Undisputed

(^^McCorkle")

located

in

Material

owned a

Metter,
Facts,

commercial

Georgia.

Doc.

In

18-1,

(Pl.'s
^ 1.)

Plaintiff, AMCO Insurance Company C'AMCO"), insured the Property.
(Def.'s Statement of Undisputed Material Facts, Doc. 29-1, II 1.)

Defendant TAF, Inc. d/b/a Metter Sports Store ("TAF") was a tenant
occupying space in the Property.

(Compl., Doc. 1, at 2; Ans.,

Doc. 8, at 2.)

As part of its business, TAF buys and sells hunting supplies,
including firearms.

(Dep. of Turner Fordham, Doc. 18-4, at 33.)

Turner Fordham (''Fordham") is the sole owner, president, and CEO
of TAF.

(Id. at 16-17.)

On the evening of November 12, 2015, in

TAF's store, Fordham made preparations to reblue a Browning A-5

Sweet Sixteen shotgun that TAF had recently purchased.^
37-41.)

As part of the rebluing process, Fordham used a torch to

heat the shotgun which was resting on a gun cleaning mat.

39, 41.)

(Id. at

(Id. at

A fire ignited shortly after Fordham began the bluing

process causing damage to the
(Id. at 44-45.)

Property structure and contents.

Fordham admits that he started and is the sole

cause of the fire.

(Id. at 67.)

^ "Bluing" is effectively a finish applied to gun metal to improve
(Fordham Dep. at 37, 40.)

the aesthetics and durability of a firearm.

As a

result of the fire, AMCO reimbursed McCorkle in the

amount of $1,047,815.11.
9, 12; Doc. 18-3.)

(Dep. of Michael Austin, Doc. 22-5, at

On February 1, 2017, AMCO, as subrogee for

McCorkle, filed suit against TAF seeking payment of the full amount
it paid McCorkle.

(See generally Compl.)

judgment on this claim.

In

AMCO now seeks summary

response, TAF argues, among other

things, that McCorkle was negligent per se for its alleged failure
to install the proper number of fire extinguishers in accordance
with regulations and that negligence contributed to the damages
that the fire ultimately caused.

(Def.'s Opp'n to Pl.'s Mot. for

Partial Summ. J., Doc. 29, at 2-5.)

Specifically, TAF argues that

AMCO is not entitled to any reimbursement, or, in the alternative,
only

a

reimbursement

McCorkle's

negligence.

adjusted

for

Additionally,

damage
TAF

attributable

asserts

that

to

AMCO's

payment to McCorkle did not properly deduct (1) depreciation to
certain structural elements of the Property and (2) the value of

goods salvaged from the Property following the fire.^

^ TAF requests oral argument on all motions presently before the
Court.
Upon consideration of the issues presented and the parties'
submissions, the Court finds that oral argument would not materially aid
the Court in resolving the pending motions.

II. MOTION FOR SUMMZ^Y JUDOIENT

A. Standard of Review

Summary judgment is appropriate only if ""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. P. 56(a).

Facts are

""material" if they could affect the outcome of the suit under the

governing

substantive

law,

and

a

dispute is

genuine ""if the

evidence is such that a reasonable jury could return a verdict for

the non-moving party."
242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

The Court must view factual disputes in the light

most favorable to the non-moving party, Matsushita Elec. Indus.
Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw

""all justifiable inferences in [the non-moving party's] favor."
United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437

(11th Cir. 1991) (en banc) (internal punctuation and citations
omitted).

The Court should not weigh the evidence or determine

credibility.

Anderson, 477 U.S. at 255.

The moving party has the initial burden of showing the Court,

by reference to materials on file, the basis for the motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Because the

standard for summary judgment mirrors that of a directed verdict,
the initial burden of proof required by either party depends on
who carries the burden of proof at trial.

Id. at 323.

""When the

moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact:

it

^must support its motion with credible evidence that would

entitle it to a directed verdict if not controverted at trial.'"

Four

Parcels of Real Prop.,

941 F.2d at 1438

(quoting Celotex

Corp., 477 U.S. at 331 (Brennan, J., dissenting)).

''If the moving

party makes such an affirmative showing, it is entitled to summary

judgment unless the nonmoving party, in response, 'comes forward
with significant, probative evidence demonstrating the existence
of a triable issue of fact.'" Id. (quoting Chanel, Inc. v. Italian
Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir. 1991)).

When the movant does not carry the burden of proof at trial,

it may satisfy its initial burden in one of two ways - by negating
an essential element of the non-movant's case or by showing that

there is no evidence to prove a fact necessary to the non-movant's
case.

See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th

Cir. 1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)
and Celotex Corp., 477 U.S. 317).

The movant cannot meet its

initial burden by merely declaring that the non-moving party cannot
meet its burden at trial.

Id.

If - and only if - the movant carries its initial burden, the
non-movant must "demonstrate that there is indeed a material issue

of fact that precludes summary judgment."

Id.

When the non-

movant bears the burden of proof at trial, the non-movant must

tailor its response to the method by which the movant carried its
initial burden.

For example, if the movant presented evidence

affirmatively

negating

a

material fact, the

non-movant

^^must

respond with evidence sufficient to withstand a directed verdict
motion

at

trial

on

the

material

fact

sought

to

be

negated."

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (llth Cir. 1993),
On the other hand, if the movant shows an absence of evidence on
a material fact, the non-movant must either show that the record
contains evidence that was "overlooked or ignored" by the movant
or "come forward with additional evidence sufficient to withstand

a directed verdict motion at trial based on the alleged evidentiary

deficiency." Id. at 1117.

The non-movant cannot carry its burden

by relying on the pleadings or by repeating conclusory allegations
contained in the complaint.
1033—34 (llth Cir. 1981).

See Morris v. Ross, 663 F.2d 1032,
Rather, the non-movant must respond

with affidavits or as otherwise provided by Federal Rule of Civil
Procedure 56.

In this action, the Clerk of Court gave Defendant notice of

the motion for summary judgment and informed it of the summary

judgment rules, the right to file affidavits or other materials in
opposition,

and

the

consequences

of

default.

(Doc.

19.)

Therefore, the notice requirements of Griffith v. Wainwriqht, 772
F.2d 822, 825 (llth Cir. 1985) (per curiam), are satisfied.

The

time for filing materials in opposition has expired, and the motion
is now ripe for consideration.

B. Discussion

AMCO's motion for partial summary judgment sets forth three

arguments: (1) AMCO is entitled to summary judgment on the issue
of liability for the fire; (2) AMCO is entitled to summary judgment
as to TAF's

summary
counters

affirmative

judgment
that

on

(1)

defenses; and

$886,792.83

there

is

an

of

(3) AMCO is

undisputed

issue

of

fact

entitled to

damages.
as

to

TAF

whether

McCorkle's negligence contributed to the spread and consequent

damages of the fire; and (2) because there is an issue of fact
related to the spread and consequent damages of the fire, the Court
should not grant summary judgment on any issues.
1. TAF's Liability

Although neither party explicitly stated the elements for

negligence in Brief, the elements are well-established in Georgia:
(1) [a] legal duty to conform to a standard of conduct
raised by the law for the protection of others against
unreasonable

risks

of

harm;

(2)

a

breach

of

this

standard; (3) a legally attributable causal connection
between the conduct and the resulting injury; and (4)

some loss or damage flowing to the plaintiff's legally

protected interest as a result of the alleged breach of
the legal duty.

Smith V. United States, 873 F.3d 1348, 1351—52 (11th Cir. 2017)

(quoting Bradley Ctr., Inc. v. Wessner, 296 S.E.2d 693, 695 (Ga.
1982)).

The parties do not dispute that TAF had a legal duty to

avoid setting fire to the Property, that TAF breached its duty, or
that some loss or damage occurred as a result of the alleged

breach.

Therefore, the only disputed issue for the purpose of

AMCO's motion for partial summary judgment is causation.
^^To

prove

causation,

the

plaintiff

must

show

that

the

wrongdoing is both a cause in fact and a proximate cause of the
injuries [alleged]." Strength v. Lovett, 714 S.E.2d 723, 727 (Ga.
Ct. App. 2011).

To show that the defendant's conduct is a cause

in fact or actual cause of its claimed injuries, ''a plaintiff

ordinarily must prove that, but for this conduct, he would not
have

sustained

the

injury."

Id.

at 730

(quoting

English

v.

Crenshaw Supply Co., 387 S.E.2d 628, 634 (Ga. Ct. App. 1989)).

Alternatively stated, "The defendant's conduct is not a cause of
the event, if the event would have occurred without it."

Id.

For

the wrongdoing to be the proximate cause of the alleged injury,
the injury must be the natural and probable consequence
of the [wrongful conduct], such a consequence as under
the surrounding circumstances of the case might and

ought to have been foreseen by the wrong-doer as likely
to flow from his act.
The injury must be the direct
result of the misconduct charged; but it will not be
considered too remote if, according to the usual

experience of mankind, the result ought to have been
apprehended.

Id. at 727 (citing Ga. Dep't of Human Res, v. Bulbalia, 684 S.E.2d
115, 118 (Ga. Ct. App. 2010)).

The Court finds that there is no dispute of material fact as

to causation.

First, Fordham stated in his deposition, "I caused

the fire." (Fordham Dep. at 67.)

Second, but for Fordham starting

the fire, the Property and its contents would not have sustained
fire damage.

Third, the damage done to the building was the

^'natural and probable consequence" of starting a fire in a building
and ought to have been foreseen by Fordham.

Fourth, the damage

caused was the direct result of the fire started by Fordham.

Thus,

the wrongful act of starting a fire was the actual and proximate
cause of the fire which damaged the Property.

Accordingly, the

Court finds, as a matter of law, that TAF is liable for the damages
caused by the fire.^
2. TAF's Affirmative Defenses

''[A]n

^fault'

or

affirmative

cut

off

defense

proximate

or immunity does

cause,

it

only

not eliminate

bars

liability

notwithstanding that the ^fault' of the tortfeasor was a proximate

cause of the injury in question."

Zaldiver, 774 S.E.2d at 699.

"Comparative negligence is a defense that diminishes or bars the
liability of the defendant notwithstanding that [its] conduct was

^ TAF challenges causation by arguing that although Fordham's
"actions may have led to the fire, that fire was able to spread unabated
because of McCorkle's failure to have fire extinguishers in the retail

space of the building, as required by Georgia law."
Mot. for Partial Summ. J., at 2.)

(Def.'s Opp'n to

TAF's argument, however, improperly

conflates proximate cause and its affirmative defenses alleging
comparative negligence. See Zaldiver v. Prickett, 774 S.E.2d 688, 698
(Ga. 2015) ("Comparative negligence of the plaintiff, on the one hand,
and the causal relationship between the wrongdoing of the defendant and

the injury sustained by the plaintiff, on the other, are distinct
questions. Comparative negligence is a defense that diminishes or bars
the liability of the defendant notwithstanding that her conduct was a
proximate cause of the injury to the plaintiff; the defense does not
necessarily eliminate the causal connection."). Accordingly, the Court
considers TAF's argument as part of its affirmative defenses.

a proximate cause of the injury to the plaintiff."

Id.

The

doctrine of comparative negligence states:

[W]here the negligence of the plaintiff joins with the
negligence of the defendant in proximately causing the

plaintiff's injuries, the plaintiff will be precluded
from recovering against the defendant,
of the plaintiff is equal or greater
defendant, or, if the negligence of
less than that of the defendant,
recovery of damages will be reduced in

if the negligence
than that of the
the plaintiff is
the plaintiff's
proportion to its

negligence.

Weston V. Dun Transp., 695 S.E.2d 279, 282 {Ga. Ct. App. 2010)

(emphasis in original).

When a defendant raises an affirmative

defense, "the burden rests upon the defendant[] to establish the
truth

of

such

evidence."

affirmative

defense

by

a

preponderance

of

the

Brown v. Tucker, 788 S.E.2d 810, 821 (Ga. Ct. App.

2016).

TAF "concedes that its

actions led to the subject fire."

(Def.'s Opp'n to Mot. for Partial Summ. J., at 1). TAF's argument,
however,

is

that

McCorkle's

failure

to

supply

portable

fire

extinguishers as required by the applicable fire code constitutes

negligence per se, and McCorkle's negligence contributed to the
damages in whole or in part by precluding Fordham's opportunity to
extinguish the fire.

(Id. at 2—6.)

TAF relies upon its expert,

Ronald Blankenship, to establish that the Property lacked the
sufficient number and type of fire extinguishers.

(Id. at 5—6.)

Using this conclusion, TAF asserts that "there is no dispute that
the premises lacked fire extinguishers in the vicinity, of the fire

10

(or the retail space in its entirety}."
original).)
with

(Id. at 4 (emphasis in

Finally, TAF argues that ^^had McCorkle been compliant

its

duty

[Fordham]

was

to

maintain

ready,

proper

willing,

fire

and

extinguisher to control the fire."

suppression

able
(Id.)

to

equipment,

utilize

a

fire

Thus, TAF concludes

that the "lack of fire extinguishers and the consequent spread of

the fire (distinguishable from its cause/origin) is a legitimate
basis for finding comparative fault."

(Id. at 6.)

AMCO contends that TAF "cannot point to any evidence in this
case

that

affirmative

would

allow

defenses

of

it

to

survive

comparative

Partial Summ. J., Doc, 18, at 8.)

summary

fault."

judgment

(Pl.'s

on

its

Mot.

for

Specifically, AMCO argues that

TAF cannot establish that the lack of fire extinguishers was a

cause of the damages incurred.

(Id. at 9-10.)

The Court agrees

with AMCCs position.

Assuming TAF established McCorkle was negligent per se,^ it
has

not

established

McCorkle's

alleged

negligence

proximately

AMCO additionally argues that McCorkle did not have a legal duty
to provide or maintain fire extinguishers in TAF's retail space, an
essential element of negligence per se.

See Hubbard v. Dep^t of Transp.,

568 S.E.2d 559, 567 (Ga. Ct. App. 2002) ("The violation of certain
mandatory regulations may also amount to negligence per se if the
regulations impose a legal duty.").
Although TAF points to several
applicable codes requiring fire extinguishers, it fails to show whether
the code imposed a legal duty on McCorkle. See id. at 567 ("Accordingly,
even if we assume that [plaintiff] was within the class of persons
protected by the [regulation] and that her injury was the type of harm
the standards were intended to prevent, [plaintiffs] would not be
entitled to partial summary judgment because they were unable to
demonstrate that the [regulation] provisions were mandatory or that they

created a legal duty on the part of [defendants.]").
11

Additionally, TAF

contributed

to

the

liability per se."

harm.

"Negligence

per

se

does

not equal

Norman v. Jones Lang Lasalle Americas, Inc.,

627 S.E.2d 382, 389 (Ga. Ct. App. 2006).

the court finds

negligence per se, the plaintiffs must then demonstrate a causal
connection between the negligence per se and the injury."

Id.

The necessary causal connection includes establishing proximate
cause.

Id.

TAF

has

provided

no

evidence

that

the

lack

of

fire

extinguishers was causally connected to McCorkle's damages.

To

support its argument, TAF relies exclusively on an affidavit of
Fordham

and

Blankenship.^

the

report

and

deposition

of

its

expert

Ronald

The affidavit by Fordham states that he was "ready,

willing, and able" to use a fire extinguisher "had one been readily
available."

(Aff.

of

Turner

Fordham,

Doc.

29-3,

5 5.)

The

affidavit, however, says nothing about whether Fordham believed he
could have contained the fire had he used a fire extinguisher.
(See generally Fordham Aff.)®

fails to identify whether it (the lessee) or McCorkle (the lessor) was
the party responsible for complying with the cited codes. The Court,
however, need not rule on this issue as TAF has provided no evidence
that even if McCorkle did possess such a legal duty, its negligence
contributed to the fire damage in this case.
® TAF also references its Amended Responses to Plaintiff s First
Interrogatories. (Doc. 18-5.) The Amended Responses, however, contain
the same statement as Fordham's Affidavit that he was "ready, willing

and able to use [fire prevention equipment] to remediate or contain the
(Id. at 11-12.)

fire if such equipment was reasonably available."
®

AMCO asserts

that Fordham's affidavit is a

sham affidavit and

asks the Court to ignore it. In the Eleventh Circuit, "[wjhen a party
has given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact, that party cannot
12

thereafter

create

such

an

issue

with

an

affidavit

that

merely

contradicts, without explanation, previously given clear testimony."
Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657
(11th Cir. 1984).
In his deposition, Fordham gave the following
testimony:

Q. Okay.
So the mat flash stops.
You threw the can of
acetone. Then you have fire on the wall. You dropped the
torch.

What happened next?

A. Threw the gloves off. Ran back and forth a few times trying
to figure out what to do. Did not know. Panicking. Ran
to the front of the store.

Ran to the bathroom.

Just not

knowing what to do.
I ran to the front again, then ran
back to the store thinking what should I grab. What should
I do. Just a state of panic.

Q. Okay.

All right.

And what ultimately did you decide to

do?

A. I ran outside the front door.

Q. Okay.

Did you make any attempt to extinguish the fire with

anything before you left?
A. No, I did not.

Q. Didn't have anything available to you?
A. I did in the back room but never - never even crossed my

mind. You know, water was the closest thing. I had - at
that time the fire was so big, I didn't know what to do.

Q. Okay.

You didn't think you'd be able to control it?

A. Not at that point I did not.

(Fordham Dep. at 53-54.)

In his affidavit, Fordham asserted:

While I was never asked at deposition, I was ready, willing,
and able to utilize a fire extinguisher at the time of the

fire had one been readily available. The only possible fire
extinguishers in the building were not in the retail space
and would have required me to pass by/through the fire. I am
fully aware as to how to use a fire extinguisher.
(Fordham Aff.
5-6.)
The question of whether to ignore Fordham's
affidavit is a close one.
The Court, however, declines to reach this
13

Moreover, TAF offers no expert witness testimony on the size
of the fire or the potential effectiveness of a fire extinguisher
given the size of the fire.

Blankenship confirmed that the scope

of his report was ^'merely to determine what types of portable fire

extinguishers should have been" in the building.
Blankenship, Doc. 29-2, at 94.)
evidence

that

the

fire

could

(Dep. of Ronald

Blankenship's Report provides no
have

been

suppressed

by

a

fire

extinguisher, much less that it could have been suppressed by the
fire

extinguisher

Blankenship

Expert

required

Report

by

the

applicable

(''Blankenship

Report"),

code.

Doc.

(See

18-7.)

Notably, when asked in his deposition whether he believed Fordham
could have put out the fire with a fire extinguisher of the type

required by the ordinance, Blankenship testified that "[w]e don't
know if he could just put it out or not."

(Blankenship Dep. at

57.)

Finally, even if McCorkle had installed fire extinguishers as

suggested by the National Fire Code, it is mere guesswork to
conclude that Fordham could have accessed the fire extinguisher.

TAF offers no evidence that the fire extinguisher would have been

placed in an area that Fordham could have accessed, and Fordham
admits that a fire extinguisher was available in the retail space

issue because Fordham's affidavit still fails to establish a genuine
issue of material fact as to causation.
14

but not accessible due to the location of the fire.

(Fordham Dep.

at 54; Blankenship Report at 6.)

In conclusion, no evidence in the record creates a genuine
issue

of

material

controlled

or

fact

regarding

extinguished

contention

that

neutralized

some

additional

of the

the

whether
rapidly

fire

Fordham
growing

extinguishers

damage is speculation.

could

have

fire.
would

While

Any
have

it is

conceivable that had Fordham obtained a fire extinguisher as the

fire swiftly spread and had some impact on the fire, ^'[a] mere
possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture, . . . it becomes

the duty of the court to grant summary judgment."

Feazell v.

Gregg, 607 S.E.2d 253, 257 (Ga. Ct. App. 2004); accord Cordoba v.
Dillard^s Inc., 419 F.3d 1169, 1181 {11th Cir. 2005) (speculation

or conjecture does not create a genuine issue of material fact).
Accordingly,

appropriate.^

the

Court

concludes

that

summary

judgment

is

See Anderson, 477 U.S. at 250 (^^If the evidence is

^ This case presents facts similar to Dart Indus., Inc. v. Acer,
355 F. App'x 295 (11th Cir. 2009) (per curiam).
In that case. Dart
owned a building that the defendant was leasing.
The defendant

counterclaimed against the plaintiff for its failure to maintain a
properly functioning fire suppression system.
Although applying
Tennessee law, the Eleventh Circuit Court of Appeals concluded that even

assuming that the plaintiff retained a duty to maintain the fire
suppression system in the building as its owner, and even assuming that
duty was breached, the counterclaim failed because of ''insufficient
evidence that an operational fire suppression system would have reduced
[counterclaim-plaintiff]'s losses."
Id. at 296.
Therefore, absent
evidence establishing that the presence of additional fire extinguishers
would have curtailed McCorkle's damages, TAF's affirmative defenses
alleging comparative negligence fail as a matter of law.
15

merely colorable, or is

not significantly probative, summary

judgment may be granted.").
3. Damages

In its motion for partial summary judgment, AMCO also asks
the Court to declare that $886,792.83 in damages is not in dispute.

In support of this assertion, AMCO argues that once the Court
concludes

that

TAF

is

liable

for

the

fire

and

rejects

its

affirmative defenses, as a matter of law, the only dispute that

remains is conflicting expert testimony regarding damages for

depreciation and salvage in the amount of $161,022.28.

(Pl.'s

Mot. for Partial Summ. J., at 10-12).

In response, TAF concedes that ^^Plaintiff alleges damages of
$1,047,815.11"

and

''defense

experts

reduce

this

amount

to

$886,792.83." (Def.'s Opp'n to Mot. for Partial Summ. J., at 7.)
TAF further argues that the remaining $886,792.83 in damages is

only

in

dispute

liability." (Id.)

based

upon

"Plaintiff s

apportionment

of

However, as discussed supra, AMCO is entitled

to judgment on its negligence claim and against TAF's affirmative
defenses as a matter of law.

As such, summary judgment is proper

with regards to TAF's liability in the amount of $886,792.83 in
undisputed damages.

III. MOTIONS TO EXCLUDE

Both AMCO and TAF have filed numerous motions to exclude

testimony of the other side's expert witnesses.
16

AMCO seeks to

exclude TAF's experts William Creeden, P.E. (Doc. 20) and Mark M.

Ruddy (Doc. 21).

TAF seeks to exclude AMCO's experts Michael R.

Austin (Doc. 22), Jeffrey C. Smith (Doc. 23), and Bryan M. Cash
(Doc. 24).

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

''As the Supreme Court recognized in Daubert v. Merrell Dow Pharms.,
Inc., [509 U.S. 579 (1993)], Rule 702 plainly contemplates that
the district court will serve as a gatekeeper to the admission of

[expert] testimony."

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK

Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003). "The burden of laying

the proper foundation for the admission of the expert testimony is
on the party offering the expert, and admissibility must be shown
by a preponderance of the evidence." Allison v. McGhan Med. Corp.,
184 F.3d 1300, 1306 (11th Cir. 1999).

The Eleventh Circuit has explained that district courts are

to engage in a three-part inquiry to determine the admissibility

17

of expert testimony under Rule 702. Quiet Tech., 326 F.3d at 1340.
Specifically, the court must consider whether:

(1) [t]he expert is qualified to testify competently

regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions
is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert; and (3) the testimony
assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.
Id. at 1340—41.

First, an expert may be qualified to testify due to his

knowledge, skill, experience, training, or education. Trilink Saw
Chain, LLC v. Blount, Inc., 583 F. Supp. 2d 1293, 1304 (N.D. Ga.

2008). ''A witness's qualifications must correspond to the subject
matter of his proffered testimony."

Anderson v. Columbia Cty.,

No. CV 112-031, 2014 WL 8103792, at *7 (S.D. Ga. Mar. 31, 2014)

(citing Jones v. Lincoln Elec. Co., 188 F.3d 809, 723 (7th Cir.
1999)).

However, an expert's training need not be narrowly

tailored to match the exact point of dispute.

McDowell v. Brown,

392 F.3d 1283, 1297 (11th Cir. 2004).

Second, the testifying expert's opinions must be reliable.

In Daubert, the Supreme Court directed district courts faced with

the

proffer

of

expert

testimony

to

conduct ''a

preliminary

assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and of whether that reasoning or

methodology properly can be applied to the facts in issue."
U.S.

at

592-93.

There

are

four

18

factors

that

courts

509

should

consider: (1) whether the theory or technique can be tested, (2)

whether it has been subject to peer review, (3) whether the

technique has a known or potential rate of error, and (4) whether
the

theory

community.

has

attained

general

Id. at 593-94.

acceptance

in

the

relevant

''These factors are illustrative, not

exhaustive; not all of them will apply in every case, and in some

cases other factors will be equally important in evaluating the

reliability

of

proffered

expert

opinion."

United

Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004).

States

v.

Thus, "the trial

judge must have considerable leeway in deciding in a particular
case

how

to

go

about

testimony is reliable."

determining

whether

particular

expert

Kuhmo Tire Co. v. Carmichael, 526 U.S.

137, 152 (1999).

Regardless of the specific factors considered, "[p]roposed
testimony must be supported by appropriate validation - i.e., 'good

grounds,' based on what is known." Daubert, 509 U.S. at 590.

In

most cases, "[t]he expert's testimony must be grounded in an

accepted body of learning or experience in the expert's field, and
the expert must explain how the conclusion is so grounded."
R.

Evid.

702,

advisory

committee's

notes

to

2000

Fed.

amendment.

"Presenting a summary of a proffered expert's testimony in the
form of conclusory statements devoid of factual or analytical

support is simply not enough" to carry the proponent's burden.
Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d

1092,

1113

(11th

Cir.

2005).
19

Thus,

neither

an

expert's

qualifications and experience alone nor his unexplained assurance

that his or her opinions rely on accepted principles is sufficient.
McClain v. Metabolife Int^l, Inc., 401 F.3d 1233, 1244 (11th Cir.

2005); Frazier, 387 F.3d at 1261.

Moreover, when analyzing a

witness's reliability, courts must be careful to focus on the

expert's principles and methodology rather than the scientific
conclusions that they generate.

Daubert, 509 U.S. at 595.

Third, expert testimony must assist the trier of fact to
decide a fact in issue.

Thus, the testimony must concern matters

beyond the understanding of the average lay person and logically
advance a material aspect of the proponent's case.

Frazier, 387 F.3d at 1262.

Id. at 591;

The Supreme Court has described this

test as one of "fit." Daubert, 509 U.S. at 591. "Preferred expert

testimony generally will not help the trier of fact when it offers

nothing more than what lawyers for the parties can argue in closing
arguments."

Frazier, 387 F.3d at 1262—63.

A. William Creeden, P.E.

William Creeden, P.E. offered testimony on behalf of TAF

challenging specific amounts that AMCO paid to McCorkle.

Creeden

opined that AMCO should not have allowed approximately $7,094.00
for soda blasting the concrete floors of the Property, and AMCO

improperly failed to apply depreciation to certain components of
the Property resulting in an overpayment of $17,984.00.

(Creeden

Expert Report, Doc. 20-1, at 2, 5-6.) In total, Creeden estimates

20

that the unnecessary soda blasting and AMCO's failure to properly

account for all depreciation resulted in an overpayment to McCorkle

of approximately $25,078.00. (Id. at 2.) AMCO's motion to exclude
challenges Creeden's qualification to render an opinion regarding

depreciation, and, even if he is qualified, that he did not employ
the proper methodology.^
Creeden is a structural engineer who was designated as an

^^engineering expert specializing in construction management and
engineering services."

20-3, at 2.)

(Creeden Expert Witness Disclosure, Doc.

Creeden uses his expertise to evaluate the scope of

the required repairs to the structural aspect of buildings;
''determining which portion of the building is still usable and

which portion is not."
33-34.)

(Dep. of William Creeden, Doc. 20-2, at

After determining the scope of the repairs, Creeden

provides information to a colleague familiar with the software
used to estimate the damages the insurer owes.

(Id. at 34.)

The

software utilized at Creeden's firm to create the estimate is

called Xactimate, an insurance standard software package.

(Id.)

As part of the total estimate, the software can develop an estimate
regarding depreciation.

(Id. at 60.)

® AMCO does not contest whether Creeden is qualified to render an

expert opinion regarding the unnecessary use of soda blasting to clean
the Property floors. (Pl.'s Mot. to Exclude Test, of Defense Expert
William Creeden, P.E., Doc. 20, at 3 n.5.)
21

The Court agrees that Creeden is not qualified to render an

opinion regarding depreciation.

Estimating depreciation is an

entirely different area of expertise than determining the damages

suffered by the structural components of a building.

Determining

structural damages requires knowledge concerning the physical

properties of building components and the effect of various

physical stressors on those components.

Depreciation involves

accounting concepts and depends on the terms of the insurance
contract.

Although experienced in the former, Creeden recognized

he lacks knowledge and experience as to the latter:

Q: Well, and you shouldn't be considering [insurance

policy terms between AMCO and McCorkle] because that
has nothing to do with engineering; correct?

A: We're specifically discussing his estimate.

not supposed to discuss his estimate?

Are we

I mean, he

created this estimate based on the policy language
between him and their insured correct?
Q: You tell me.

You're the expert.

A: Well, I'm sure he did.

So all I'm saying is that - is that it - the way an
estimate is customarily put together is what I'm
commenting about. And the point I was making was that
if he specifically excluded depreciation from these

major components for some reason that I don't know,
then that's fine.
You know, I don't know what the
policy says or doesn't say.

But to not apply depreciation to things that are
halfway through their life doesn't make any sense. It
shouldn't make sense to anybody.

Q: Well, again, the agreement between Nationwide and its
policyholder as reflected in its policy has nothing
to do with engineering; correct?

22

A: It has nothing to do with engineering. As far as I
know, it has nothing to do with engineering, no, but

it has everything to do with the estimate that we're
specifically discussing right now.

Q: And we agreed that depreciation is not an engineering
concept, it's an accounting concept; correct?
A: For the most part, yes.

(Creeden Dep. at 75-77.) AMCO's expert witness, insurance adjuster
Michael Austin, explained why AMCO could not consider certain
depreciations:

Q: Well, what about Mr. Creeden (phonetic) that we
talked about a minute ago. Have you had a chance to
review Mr. Creeden's report, the defendant's expert?
A: Yes, 1 did.

Q: Okay.

And do you have any comments or criticisms

of what Mr. Creeden is saying there in his report with

respect to the actual cash value of construction?
A: Well, referring back to depreciation again.
We
are not allowed to take depreciation on hard-andstructural items that are expected to last the
lifetime of the building, and this is where he's
calling into my consistency. But according to Best
Claims Practices, we are not allowed to take

depreciation on such items that he claims need to be
depreciated.
(Austin Dep. at 24.)

Additionally,

Creeden

is

not

trained

to

use

Xactimate

software; he relied on an employee in his firm who is qualified to
use the software to develop the estimates (Creeden Dep. at 34),
and he admits that he lacks knowledge regarding how Xactimate
functions or how it calculates depreciation:

Q: But to calculate depreciation, it's got to have some

kind of algorithm in it that applies a mathematical
23

equation to the current prices to get the ACV price;
correct?

A: I don't know how it does it exactly.

Q: So as far as you know, you just put in what the
current repair cost is and Xactimate will spit out a
depreciated amount; is that correct?
A: I don't use the software, so exactly how that's done
and the inputs and outputs, I'm not sure.
But I know that when I talk to an estimator and we're

talking about depreciation, he asks me what it is and
how old it is.

Q: You don't know what kind of algorithm the Xactimate
program uses to calculate depreciation, do you?
A: I have no idea, no.

Q: You don't know if it uses straight-line depreciation
or not; correct?
A: I don't know.

Q: You don't know if it uses the declining balance method
of depreciation; correct?
A: I have no idea how Xactimate is programmed, no.

Q: Okay.

You don't know if it uses the sum of years

method to calculate depreciation; correct?
A: No, sir.

(Creeden Dep. at 78—80.)

In

sum,

the

Court

concludes

that

Creeden's

engineering

expertise differs from the expertise required to formulate a
depreciation estimate.
is

qualified

to

Because TAF has not demonstrated Creeden

offer

expert

24

testimony

on

the

issue

of

depreciation,

the

Court

excludes

the

portions

of

Creeden's

testimony opining upon AMCCs depreciation calculations.
B. Mark M. Ruddy

TAF designated expert Mark Ruddy to testify regarding the
amount AMCCs salvor realized in the sale of McCorkle's inventory.

In Ruddy's opinion, AMCCs salvor, for a number of reasons, failed
to maximize the sale of the salvaged inventory.

recovered $97,355.00 in proceeds.

AMCCs salvor

Ruddy opines that the salvaged

inventory should have demanded $265,279.20, and, after paying the
salvor's commission, the salvaged inventory would have returned

net proceeds of $233,299.28.

{Mark M. Ruddy Expert Report (^^Ruddy

Report"), Doc. 21-1, at 3.)

AMCO contends that Ruddy should be disqualified as an expert

for a number of reasons.

First, AMCO contends that Ruddy is

unqualified to deliver an expert opinion because he is a broker of
salvaged goods and is not in the business of actually buying or

selling salvaged goods.

The Court disagrees, and Ruddy is

qualified to offer expert testimony regarding the value of the
salvaged inventory.

Ruddy has over forty years of experience in the salvage

industry.

(Dep. of Mark M. Ruddy, Doc. 21-2, at 4-5.)

tenure as a salvor.
consulted

on such

Ruddy has

matters

on

a

25

During his

valued salvaged goods and
number of occasions.

has

(Id. at

14-21.)

For these reasons. Ruddy is qualified to offer his opinion

as to the value received for McCorkle's salvaged inventory.

Second, AMCO argues that Ruddy has not employed a proper

methodology for assessing the value of the salvage.

AMCO relies

on the fact that Ruddy received a bid for the salvaged goods and

is now relaying those figures as his opinion.

The Court determines

Ruddy's opinion encompasses much more than merely restating the
bids he solicited.

Ruddy testified that the offers he received

for the salvage goods were the product of bona fide negotiations.
(Id. at 62-63, 68-69, 71, 80.)

Moreover, Ruddy's opinion is not

just limited to the actual price recovered.

He explains that, in

his experience with this type of inventory, AMCO's salvor packaged
the inventory incorrectly and sold it to the wrong type of buyer.

(Id. at 60, 73-74.)

From all accounts. Ruddy contacted buyers he

believed were better suited to purchase the inventory in question

and negotiated a price with them as he would in the salvage sales
he ordinarily brokers.^

(Id. at 80.)

Therefore, the Court is

convinced that Ruddy employed a reliable methodology for the

salvage industry, and his expert testimony on the value of the
salvage is properly admitted.

® AMCO does not dispute that Ruddy's testimony would assist the
trier of fact.
26

C. Michael R. Austin

TAF seeks to exclude testimony of AMCO's proffered expert,
Michael R. Austin.

Austin is AMCO's employee that adjusted the

claim at issue in this case.

TAF contends that Austin should be

excluded as an expert under each of three prongs as recited in
Quiet Tech., supra.

The Court will address each in turn.

Initially, TAF argues that Austin is not qualified with any

specialized or industry expertise to offer an opinion as to the
fair or reasonable amounts paid in this case.

TAF supports its

conclusion with an assertion that Austin relied solely on the

experience of others in reaching his conclusion.

disagrees.

The Court

Austin's experience adjusting insurance claims dates

back nearly thirty years. (Austin Dep. at 7.) Over the course of
his career, Austin has adjusted over 10,000 claims.

(Decl. of

Michael R. Austin, Doc. 33-3, SI 8.)

The fact that Austin used information from other sources does

not disqualify him as an expert.

See Erebia v Allstate Prop. &

Cas. Ins. Co., No. 1:15-CV-312-MHC, 2016 WL 4435089, at *7 (N.D.

Ga. July IS, 2016) (citing Vision I Homeowners Ass'n v. Aspen

Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009)).
Further, despite TAF's argument that relying on the information of
others disqualifies him from opining as to depreciation, an

''expert's

experience

as

an

insurance

adjuster

ma[kes]

him

qualified to testify on depreciation." Flinch v. Owners Ins. Co.,
No. CV 616-169, 2017 WL 6045449, at *5 (S.D. Ga. Dec. 6, 2017)
27

{citing Grand Reserve of Columbus, LLC v. Property-Owners Ins.
Co., No. 4:15-CV-53 (CDL), 2017 WL 2618952, at *9 (M.D. Ga. Jan.

9, 2017)).
Xactimate.

Further, Austin possesses a Level II Certification in
(Austin Decl. SI 9.)

For these reasons, Austin is

qualified to testify regarding his estimate for the Property
damage.

Next, TAF argues that Austin's methodology does not meet the

requirements of Federal Rule of Evidence 702 and effectively
repeats its argument that Austin incorporated data from others.
Again, the Court disagrees with TAF. Austin generated the Property
loss estimate using the Xactimate software and his employer's Best
Claims Practices.

(Austin Decl. SI 9; Austin

Dep. at 24—25.)

Austin used the software and methodology traditionally employed by

insurance adjusters in formulating his estimate, and therefore,
his methodology is sufficient.

Finally, TAF repeats its argument in support of its position
that Austin's opinion will not assist the trier of fact because

the opinion is not his own.

The average lay person is generally

unfamiliar with methods and procedures of insurance adjusters used
to create an estimate.
trier

of fact in

its

Thus, Austin's testimony will assist the
determination

McCorkle was fair and reasonable.

whether AMCC s

payment to

As AMCO has met its foundational

burden, the motion to exclude Austin's testimony is denied.

28

D. Jeffrey C. Smifh, CPA

AiyiCO proffers the testimony of Jeffrey Smith on the subjects
of business interruption loss and inventory loss.

TAF moves to

exclude this testimony, although it does not dispute any issues

involving inventory loss other than salvage.

Jeffrey Smith

specifically testified that his inventory loss does not consider
salvage.

(Dep. of Jeffrey C. Smith, Doc. 23-6, at 26-27.)

As the

only remaining factual dispute involves salvage recovery. Smith's
testimony is no longer relevant, and TAF's motion to exclude his
testimony is now moot.
E. Bryan K. Cash

The final disputed expert is AMCO's expert on the origin and
cause of the fire.

Specifically, Cash's report concludes that the

fire originated at the workbench where Fordham began bluing the
shotgun and spread when Fordham threw a can of acetone.

(Bryan K.

Cash Expert Report (''Cash Report"), Doc. 24-6, at 3.) There is no
dispute regarding the origin and cause of the fire. Because Cash's
testimony is unnecessary, TAF's motion to exclude his testimony is
moot.

IV. CONCLUSION

In sum, the following IS HEREBY ORDERED:

(1) Plaintiff AMCO's motion for partial summary judgment

(Doc. 18) is GRANTED.

Thus Defendant TAF is liable to AMCO in the

amount of $886,792.83;
29

(2)

AMCO's

motion

to

exclude

testimony

of defense

expert

William Creeden, P.E. (Doc. 20) is GRANTED;

(3) AMCO's motion to exclude testimony of defense expert Mark
M. Ruddy (Doc. 21) is DENIED;

(4) TAF's motion to exclude testimony of plaintiff expert
Michael R. Austin (Doc. 22) is DENIED;

(5) TAF's motion to exclude testimony of plaintiff expert
Jeffrey C. Smith, C.P.A. (Doc. 23) is DENIED AS MOOT;

(6) TAF's motion to exclude the testimony of plaintiff expert
Bryan K. Cash is DENIED AS MOOT;

(7) TAF's request for oral argument (Doc. 31) is DENIED.
The Clerk is directed to ENTER JUDGMENT in the amount of

$886,792.83 in favor of Plaintiff AMCO and against Defendant TAF.
This case shall proceed to trial on the remaining disputed damages.
ORDER

ENTERED

at

Augusta,

Georgia,

this

day

September, 2018.

J. R^DK]g^ALL, ^HIEF JUDGE

UNITED^ferATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

30

of