Friedberg et al v. Chubb & Son, Inc. et al
Filing
124
ORDER denying 71 defendants' Motion in Limine; granting 75 defendants' Motion for Summary Judgment; denying 79 plaintiffs' Motion for Summary Judgment; denying 119 plaintiffs' Motion to Exclude Expert Testimony (Written Opinion). Signed by Senior Judge David S. Doty on 10/25/2011. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 08-6476(DSD/JJK)
Joseph and Carolyn Friedberg,
Plaintiffs,
ORDER
v.
Chubb & Son, Inc., and Chubb
Indemnity Insurance Company,
Defendants.
Steven E. Wolter, Esq., Stacy L. Kabele, Esq. and Kelley,
Wolter & Scott, P.A., 431 South Seventh Street, Suite
2530, Minneapolis, MN 55415 and Jenneane L. Jansen, Esq.,
Kris E. Palmer, Esq. and Jansen & Palmer, LLC, 4746
Elliot Avenue South, Minneapolis, MN 55407,counsel for
plaintiffs.
David E. Bland, Esq. and Robins, Kaplan, Miller & Ciresi,
800 LaSalle Avenue, Suite 2800, Minneapolis, MN 55402,
counsel for defendants.
This matter is before the court upon cross motions for summary
judgment by defendants Chubb & Son, Inc. and Chubb Indemnity
Insurance Company (collectively, Chubb) and plaintiffs Joseph and
Carolyn Friedberg; motions to exclude expert witnesses by Chubb and
the Friedbergs1; and the motion to strike declarations by Chubb.2
Based on a review of the file, record and proceedings herein, and
1
The Friedbergs motion and memorandum in support were filed
after oral argument.
Because the motion is related to Chubb’s
motion and raises similar issues, the court addresses the
Friedbergs’ motion.
2
Because the court grants summary judgment in favor of the
defendants, the motion to strike is moot.
for the following reasons, the court grants defendants’ motion for
summary judgment.
BACKGROUND
This insurance coverage dispute arises out of the Friedbergs’
2001 purchase of Masterpiece Policy 12281532-04 (the Policy) from
Chubb.
The
Policy
covers
the
Friedbergs’
home
in
Wayzata,
Minnesota, and provides “coverage against all risk of physical loss
to your house or other property covered under this part of your
Masterpiece
applies.”
Policy,
unless
stated
otherwise
Wolter Aff. Ex. 4, at CI00169.
or
an
The Policy contains
several exclusions, including:
Gradual or sudden loss (Rot Exclusion). We do
not provide coverage for the presence of wear
and
tear,
gradual
deterioration,
rust,
bacteria, corrosion, dry or wet rot, or
warping, however caused, or any loss caused by
wear and tear, gradual deterioration, rust,
bacteria, corrosion, dry or wet rot, or
warping. We also do not cover any loss caused
by inherent vice, latent defect or mechanical
breakdown. But we do insure ensuing covered
loss unless another exclusion applies (Ensuing
Loss Provision).
...
Fungi and Mold (Mold Exclusion). We do not
provide coverage for the presence of mold,
however caused, or any loss caused by mold,
other than as provided under the Extra
Coverage, [m]old remediation expenses. But we
do cover mold resulting from fire or lightning
unless another exclusion applies.
“Mold”
2
exclusion
means fungi, mold, mold spores, mycotoxins,
and the scents and other byproducts of any of
these.
...
Faulty planning, construction or maintenance
(Construction Defects Exclusion). We do not
cover any loss caused by the faulty acts,
errors or omissions of you or any other person
in planning, construction or maintenance. It
does not matter whether the faulty acts,
errors or omissions take place on or off the
insured property.
But we do insure ensuing
covered loss unless another exclusion applies.
“Planning”
includes
zoning,
placing,
surveying, designing, compacting, setting
specifications,
developing
property
and
establishing building codes or construction
standards. “Construction” includes materials,
workmanship, and parts or equipment used for
construction or repair.
Id. at CI00176-78.
The
Friedbergs’
home
was
constructed
with
an
exterior
insulation and finish system (EIFS) manufactured by nonparty Dryvit
Systems, Inc (Dryvit).
In June 2002, the Friedbergs received
notice of a proposed settlement in a class-action suit concerning
water damage associated with Dryvit EIFSs.
ECF No. 78.
See Bland Decl. Ex. C,
On November 20, 2003, the Friedbergs signed and
returned the “Claimant Information” form to Dryvit. See id. Ex. D.
As
part
of
the
Friedbergs’ home.
claims
process,
See id. Ex. E.
an
inspector
surveyed
the
The inspector recommended
$9,321.75 in remedial work, of which $3,728.70 was to be reimbursed
3
by Dryvit as part of the class-action settlement.
Id.
Friedbergs did not perform the proposed remedial work.
The
See J.
Friedberg Dep. 128:4-129:12.
In December 2006, the Friedbergs hired nonparty Donnelly
Stucco to repair a small hole in the exterior of their home.
Bestland Decl. Ex. A, at CI00023.
extensive water damage.
Donnelly Stucco discovered
Id. at CI00032.
Chubb on January 22, 2007.
The Friedbergs notified
Id. at CI00031.
On January 31, 2007,
Chubb adjuster Scott Bestland and expert Larry Gubbe inspected the
Friedbergs’ home.
Sample cuts into the home’s exterior revealed
water intrusion causing rot, mold and damage to the home’s wood
framing and insulation.
See id. Ex. B at CI00244-78.
Bestland’s
“Inspection Report” noted the failure of the EIFS: “[I]t appears
that Dryvit has failed due to no vertical ‘control/expansion’
joints that result in Dryvit cracking because it cannot expand or
contract.
Once
the
Dryvit
cracks,
moisture
can
get
resulting in deterioration within the exterior walls ....
evidence of poor design and workmanship.”
behind
Also,
Id. Ex. A, at CI00023.
Gubbe inspected the Friedbergs’ home again in April 2007,
after the Dryvit cladding had been removed.
report, Gubbe
detailed
the
results
of
the
In a July 23, 2007,
January
and
April
inspections, noting water damage to the home’s architectural beams,
roof deck, and sheathing and framing members.
CI00073, CI00075-76.
Gubbe Decl. Ex. A at
Gubbe concluded that the damage to the
4
architectural beams and underlying walls was “primarily caused by
the failure to install control joints or otherwise to provide for
differential movement which caused the beams to develop cracks
through which water could penetrate the EIFS cladding.”
at CI00078.
Id. Ex. A
Further, Gubbe found that “the damage attributable to
inadequate design and construction of the beams ... has been
cumulatively occurring over a period of several years” and was not
“attributable to a single event such as a storm or other climatic
phenomena.”
Id.
The Friedbergs’ consultant M. Steven Doggett inspected the
residence in June 2010 and reviewed roughly 1600 photographs of the
damage.
that
See Doggett Dep. 35:16-36:2, 44:1-6.
design
intrusion.
and
construction
Id. at 86:16–87:19.
defects
Doggett testified
allowed
external
water
The external intrusion accounted
for eighty percent of the damage to the home.
Id. Ex. 2, at 3.
Doggett concluded that “[t]he primary mechanisms for moisture
intrusion included unsealed joints and cracks at wall penetrations,
window cladding, roof penetrations, roof membrane terminations,
parapet cap flashing, wall cladding, and sealent joints.”
Id.
Doggett explained that improper roof repair was the primary cause
of the damage on the upper portions of the residence and that the
mechanism of water intrusion in lower parts of the residence was
5
due to the roof and “[e]ntry through terminations of the EIFS;
entry at rough openings of windows and other wall penetrations;
[and] flashing details.”
Id. at 88:13–19.
On August 7, 2007, Chubb denied the Friedbergs’ claim on the
basis that the damage sustained was excluded under the Policy.
Bestland Decl. Ex. D, at CI00081. According to Chubb, based on the
inspections, “it was evident that water has intruded via the
exterior
roof
deterioration.”
and
wall
for
sometime,
resulting
in
gradual
Id.
On December 3, 2008, the Friedbergs filed a complaint in state
court, seeking a declaration that the Policy covers the damage to
their home and asserting breach of contract and estoppel claims.
Chubb timely removed.
The Friedbergs moved for partial summary
judgment before the parties engaged in discovery.
at 1.
See ECF No. 81,
The court denied the motion, because it was unclear whether
the evidence might show that an excluded peril was the overriding
cause of the loss.
See ECF No. 48.
Following discovery, the
parties now make cross motions for summary judgment and to exclude
certain expert testimony.
DISCUSSION
I.
Expert Testimony
Chubb seeks to exclude the testimony of the Friedbergs’
experts Thomas Irmiter, Michael Opela and M. Steven Doggett based
6
on lack of qualifications and use of unreliable methods.
The
Friedbergs seek to exclude Chubb’s expert Larry Gubbe based on use
of unreliable methods.
The court limits its analysis to Doggett
and Gubbe.3
A.
Qualifications
“The admissibility of expert testimony in diversity cases is
governed by federal law.”
Unrein v. Timesavers, Inc., 394 F.3d
1008, 1011 (8th Cir. 2005).
Federal Rule of Evidence 702 provides
that:
[i]f
scientific,
technical
or
other
specialized knowledge will assist the trier of
fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience,
training or education may testify thereto in
the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient
facts or data, (2) the testimony is the
product of reliable principles and methods,
and (3) the witness has applied the principles
and methods reliably to the facts of the case.
Fed. R. Evid. 702.
Under Rule 702, the court acts as a gatekeeper
to determine “whether the witness is qualified to offer expert
testimony.”
Schmidt v. City of Bella Villa, 557 F.3d 564, 570 (8th
Cir. 2009) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 589 (1993)).
3
These are the two experts relied on for purposes of this
order. The court notes, however, that the Friedbergs’ additional
experts, Irmiter and Opela, reach a similar conclusion as Doggett.
Both opine that faulty roofing allowed water to enter the
Friedbergs’ residence.
See Irmiter Dep. 178:8-22, 180:1-181:1;
Opela Dep. Ex. 2.
7
An expert must possess the “knowledge, skill, experience,
training or education sufficient to assist the trier of fact.”
Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir.
2006) (citation and internal quotation marks omitted).
This
standard is satisfied when the expert’s testimony “advances the
trier of fact’s understanding to any degree.”
Id.
Rule 702
“requires that the area of the witness’s competence matches the
subject matter of the witness’s testimony.”
Id. at 1101 (citation
and
“Gaps
internal
quotation
marks
omitted).
in
an
expert
witness’s qualifications or knowledge generally go to the weight of
the witness’s testimony, not its admissibility.” Id. at 1101. The
proponent of the expert testimony bears the burden of proving its
admissibility by a preponderance of the evidence.
See Lauzon v.
Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).
Chubb accepts Doggett’s qualification to testify about the
deterioration of building materials, but argues that he is not
qualified to testify about the mechanism of water entry and the
cause of the deterioration.
In addition to a Ph.D in ecology and
post-doctoral training in mycology, Doggett is the principal at
Built Environments, Inc., a firm that specializes in the assessment
and design of buildings.
Doggett Decl. ¶¶ 1-2.
Doggett has served
as the principal investigator for over thirty buildings where EIFS
was the sole cladding system, and has performed over 1000 hours of
8
hygrothermal
analysis4
of
EIFS
assemblies.
See
id.
¶
4.
Therefore, Doggett is qualified to opine not only on microbial
growth, but also on water damage and routes of entry.
B.
Reliability
The court must also “ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.”
Schmidt, 557 F.3d at 570 (citing Daubert, 509 U.S. at 589).
The
court considers several nonexclusive factors when determining the
reliability of an expert’s opinion, including:
(1) whether the theory or technique can be
(and has been) tested; (2) whether the theory
or technique has been subjected to peer review
and publication; (3) the known or potential
rate of error; (4) whether the theory has been
generally accepted; ... [5] whether the
expertise was developed for litigation or
naturally flowed from the expert’s research;
[6] whether the proposed expert ruled out
other
alternative
explanations;
and
[7] whether the proposed expert sufficiently
connected the proposed testimony with the
facts of the case.
Lauzon, 270 F.3d at 686-87 (citations and internal quotation marks
omitted).
This “flexible and fact specific” inquiry allows the
court to “use, adapt or reject [the] factors as the particular case
demands.”
Unrein, 394 F.3d at 1011.
Both sides seek to exclude the opposing expert, because his
conclusions are based on photographs rather than a method that
4
Hygrothermal analysis studies the movement of water and heat
through buildings.
9
physically tests and independently confirms a hypothesis.
In
short, each side seeks to disqualify an expert for using the method
employed by its own expert.
The court is unpersuaded.
It would be
nearly impossible and cost-prohibitive to construct a true and
accurate model of the Friedbergs’ home in order to test each
expert’s theory.
Both experts relied on photographic evidence,
neither performed a “spray test”5 and both experts visited the
property, albeit for only a few hours.
methods
employed
provides
a
The court finds that the
verifiable
basis
for
opinion.
Accordingly, the court denies the motions to exclude the testimony
of Gubbe and Doggett.
II.
Insurance Coverage
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
5
A test that determines where water migrates after making
contact with a hard surface.
10
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
The evidence must be more than merely
colorable; the nonmovant “must do more than simply show that there
is some metaphysical doubt as to the material facts.”
Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see
Anderson, 477 U.S. at 249–50.
If a claimant cannot support each
essential element of a claim, the court must grant summary judgment
because a complete failure of proof regarding an essential element
necessarily renders all other facts immaterial.
Celotex, 477 U.S.
at 322-23.
A.
Interpretation of the Policy6
In Minnesota the interpretation of an insurance policy is a
question of law.
609 (Minn. 2001).
Am. Family Ins. Co. v. Walser, 628 N.W.2d 605,
The court interprets an insurance policy in
accordance with general principles of contract construction, giving
effect to the intent of the parties.
6
Thommes v. Milwaukee Ins.
Chubb argues that the Friedbergs’ claim is barred by the
two-year statute of limitations in the Policy. The court need not
address this issue, because the court grants summary judgment in
favor of Chubb. The court does note, however, that when viewing
the facts in a light most favorable to the Friedbergs, a genuine
issue of material fact exists as to when the Friedbergs were aware
or should have been aware of their loss.
11
Co., 641 N.W.2d 877, 879 (Minn. 2002). The court gives unambiguous
language its plain and ordinary meaning, and construes ambiguous
language against the drafter and in favor of the insured.
Id. at
880; Nathe Bros., Inc. v. Am. Nat’l Fire Ins. Co., 615 N.W.2d 341,
344 (Minn. 2000).
Language is ambiguous if “reasonably subject to
more than one interpretation.”
Columbia Heights Motors, Inc. v.
Allstate Ins. Co., 275 N.W.2d 32, 34 (Minn. 1979).
However, the
court “guard[s] against invitations to find ambiguity where none
exists.”
Metro. Prop. & Cas. Ins. Co. v. Jablonske, 722 N.W.2d
319, 324 (Minn. Ct. App. 2006) (citation and internal quotation
marks omitted).
The
coverage.
insured
must
first establish
a prima
facie
case
of
SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311
(Minn. 1995), overruled on other grounds by Bahr v. Boise Cascade
Corp.,
766
N.W.2d
910,
919
(Minn.
2009).
If
coverage
is
established, the burden shifts to the insurer to prove that a
policy
exclusion
applies.
Id.
at
313.
The
court
strictly
construes exclusions against the insurer, in light of the insureds’
expectations.
Thommes,
641
N.W.2d
at
880.
If
the
insurer
demonstrates that an exclusion applies, the insured bears the
burden of proving an exception to the exclusion.
N.W.2d at 314.
12
SCSC Corp., 536
B.
Prima Facie Case of Coverage
The Friedbergs argue that coverage exists because their home
suffered a physical loss.
The court agrees.
The Policy provides
“coverage against all risk of physical loss to your house.” Wolter
Aff. Ex. 4, at CI00169.
As detailed in Gubbe’s report, the
Friedbergs’ home suffered a physical loss, specifically, damage to
the home’s architectural beams, roof deck, and sheathing and
framing members. Gubbe Decl. Ex. A, at CI00075-76. Therefore, the
Friedbergs make a prima facie case for coverage, and the burden
shifts to Chubb to show that the Policy excludes the loss.
C.
Construction Defects Exclusion
The Construction Defects Exclusion excludes “any loss caused
by the faulty acts, errors or omissions of you or any other person
in planning, construction or maintenance.”
CI00178.
Wolter Aff. Ex. 4, at
The Policy defines “caused by” to mean “any loss that is
contributed to, made worse by, or in any way results from that
peril.”
Id. at CI00176.
The Friedbergs argue that “loss” means
“financial detriment,” and as a result, the Construction Defects
Exclusion is limited to the replacement of faulty construction.
Even assuming that the word “loss” means financial detriment,
the Policy excludes the losses incurred by the Friedbergs.
The
Friedbergs argue that language in the Acts of War and Nuclear or
Radiation Hazard exclusions show that the Construction Defects
Exclusion only excludes construction defects and not resulting
13
loss.
The Acts of War and Nuclear or Radiation Hazard exclusions
add the language “any consequence of any of these acts regardless
of any other direct or indirect cause or event, whether covered or
not, contributing in any sequence to the loss.”
Wolter Aff. Ex. 4,
at CI00178. This anti-concurrent causation language shows that the
parties agreed that the doctrine of concurrent causation would not
apply to acts of war and nuclear or radiation hazards.
The absence
of such language in the other exclusions only shows that the
parties did not contract around concurrent causation; it does not
undermine the plain language of the Construction Defects Exclusion
to mean that it is limited to the cost of replacing faulty
construction.
The
Friedbergs
next
argue
that
the
Construction
Defects
Exclusion does not apply to loss resulting from construction
defects based on Buscher v. Economy Premier Assurance Co., No. 05544, 2006 WL 268781, at *4-5 (D. Minn. Feb. 1, 2006).
The
reasoning of Buscher is persuasive, but its conclusion does not
apply in light of the language used in the instant Policy.
See
Lohstreter v. Fed. Life Ins. Co., 234 N.W. 299, 302 (Minn. 1931)
(explaining that the “plain and unambiguous language of a policy
controls”).
Unlike the policy in Buscher, the instant Policy
defines “caused by” to include “any loss that is contributed to,
made worse by, or in any way results from that peril.”
Ex. 4, at CI00176.
Wolter Aff.
Thus, the Policy unambiguously includes both
14
the faulty construction itself and the results of such faulty
construction.
Moreover, the Policy excludes “any loss caused by” faulty
construction, whereas the Buscher policy only excluded “loss to
property ... caused by” faulty construction.
Compare id. at
CI00178 (emphasis added), with Buscher, 2006 WL 268781, at *3. The
word
“any”
in
the
Policy
before
“caused
by”
expands
the
Construction Defects Exclusion. Cf. W3i Mobile, LLC v. Westchester
Fire Ins. Co., 632 F.3d 432, 437 (8th Cir. 2011) (“[T]he word ‘any’
when read naturally ... has an expansive meaning.”) (citations and
internal quotation marks omitted).
Buscher,
the
covered loss.”
Construction
Further, unlike the policy in
Defects
Exclusion
exempts
See Wolter Aff. Ex. 4, at CI00178.
“ensuing
Under the
Friedbergs’ proposed interpretation, there would be no need for an
ensuing
loss
provision,
construction defect.
because
no
loss
could
ensue
from
a
Such an interpretation is improper, because
it would render the ensuing loss provision as mere surplusage. See
In re Estate of Jobe, 590 N.W.2d 162, 166 (Minn. Ct. App. 1999)
(citing U.S. ex rel. Harlan v. Bacon, 21 F.3d 209,212 (8th Cir.
1994)).
Therefore, the court concludes that the Construction
Defects Exclusion
is
unambiguous
and
applies
to
the
cost
of
replacing faulty construction, and loss that results from faulty
construction.
15
D.
Concurrent Causation
The Friedbergs next argue that they are entitled to coverage
because Chubb cannot show that the overriding cause of the loss was
faulty construction.
See Henning Nelson Const. Co. v. Fireman’s
Fund Am. Life Ins. Co., 383 N.W.2d 645, 653 (Minn. 1986).
In
Henning, eight independent factors potentially caused the loss.
Id. at 648.
In the present case, the experts agree that a
construction
defect
residence.
See
allowed
Gubbe
water
Decl.
Ex.
to
A,
enter
at
the
Friedbergs’
CI00073,
CI00075-76
(concluding that the primary cause of damage was faulty EIFS);
Doggett Dep. Ex. 2, ECF No. 84, at 3 (attributing the primary cause
of water damage to the faulty roof); see also Pls.’ Mot. Opp’n 6
(“Dr. Doggett ... opined that the water damage was caused by water
that was
allowed
to enter
the
wall
cavities
through
various
construction defects.”).
Water
defects.
intrusion
is
not
independent
of
the
construction
See Bloom v. W. Nat’l Mut. Ins. Co., No. A05-2093, 2006
WL 1806415, at *4 (Minn. Ct. App. July 3, 2006), review denied, No.
A05-2093 (Minn. Sept. 19, 2006).
Instead, in the climate of
Minnesota, water infiltration is certain when not prevented by
proper construction.
allowed the
In other words, the construction defects
inevitable
physical
loss.
As the
Sixth Circuit
recently stated, “it should come as no surprise that the botched
construction will permit the elements ... to enter the structure”
16
and cause damage.
TMW Enters., Inc. v. Fed. Ins. Co., 619 F.3d
574, 576 (6th Cir. 2010).
No reasonable jury could reach the
conclusion that anything other than a construction defect was the
overriding
cause
of
the
Friedbergs’
loss.
Therefore,
the
Construction Defects Exclusion bars the Friedbergs’ claim.
E.
Ensuing Loss Provision
The Friedbergs next argue that the ensuing loss provision in
the
Construction
Defects
Exclusion
restores
coverage.
Under
Minnesota law, the insured bears the burden of proving that an
exception to an exclusion restores coverage.
N.W.2d at 314.
See SCSC Corp., 563
An ensuing loss provision “brings within coverage
a loss from a covered peril that follows as a consequence of an
excluded peril.”
Sentinel Mgmt. Co. v. N.H. Ins. Co., 563 N.W.2d
296, 301 (Minn. Ct. App. 1997) (citations omitted).
As long as
ensuing loss is “distinct [and] separable,” it is “covered even if
an
excluded
peril
is
a
‘but for’
cause
of
the loss.”
Id.
(citations omitted).
In
Bloom,7
the
Minnesota
Court
of
Appeals
addressed the
application of an ensuing loss provision after water intrusion
occurred due to the faulty workmanship of a residential roof.
7
See
In a diversity action the court must determine how the
Minnesota Supreme Court would decide an issue.
See Raines v.
Safeco Ins. Co. of Am., 637 F.3d 872, 875 (8th Cir. 2011). Bloom
is an unpublished opinion of the Minnesota Court of Appeals, but
the court finds Bloom persuasive in predicting how the Minnesota
Supreme Court would interpret the instant Policy.
17
2006 WL 1806415, at *1-2.
The court, applying Sentinel, explained
that the resulting deterioration, rot and mold was not a “separable
and distinct peril.”
Id. at *5.
The loss resulted from water that
entered due to construction defects, and therefore the water
intrusion and resulting loss were “a single phenomenon ... [t]here
was no intervening cause other than time.” Id. (internal quotation
marks omitted).
In the present case, the water damage resulted from faulty
construction.
not
have
Without faulty design and workmanship, water would
entered
the
Friedbergs’
residence;
construction, water damage was inevitable.
there
was
no
“separable
and
distinct
with
faulty
Here, as in Bloom,
peril”
deterioration, rot and warping other than time.
that
led
to
Therefore, the
Friedbergs’ claimed loss is not covered by the Policy’s ensuing
loss provision,8 and summary judgment is warranted in favor of
Chubb.
8
An ensuing loss provision cannot be used to circumvent other
relevant policy exclusions. See Bloom, 2006 WL 1806415, at *5.
Here, as in Bloom, the instant Policy excludes loss due to
deterioration, dry or wet rot and warping. See Wolter Aff. Ex. 4,
CI00176-77. The court, however, does not rest its ensuing loss
decision on the presence of these exclusions.
18
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Defendants’ motion for summary judgment [Doc. No. 75] is
granted;
2.
Plaintiffs’ motion for summary judgment [Doc. No. 79] is
denied;
3.
Defendants’
motion
[Doc.
No.
71]
to
exclude
expert
witnesses is denied; and
4.
Plaintiffs’ motion [Doc. No. 119] to exclude expert
witness is denied.
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated:
October 25, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
19
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