Walter et al v. Auto-Owners Mutual Insurance Company et al (TV1)

Filing 101

MEMORANDUM OPINION AND ORDER denying 27 MOTION for Summary Judgment filed by Auto-Owners Mutual Insurance Company. Signed by Chief District Judge Thomas A Varlan on 8/13/18. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
MARTIN WALTER, et al.,
Plaintiffs,
v.
AUTO-OWNERS MUTUAL
INSURANCE COMPANY,
Defendant.

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No.:

3:15-CV-535-TAV-DCP

MEMORANDUM OPINION AND ORDER
Before the Court is defendant’s motion for summary judgment [Doc. 27]. Plaintiffs
responded in opposition [Docs. 33, 34], and with the Court’s permission the parties filed
several follow-up briefs [Docs. 48, 50, 52]. For the reasons explained below, defendant’s
motion [Doc. 27] will be denied.
I.

BACKGROUND
Plaintiffs and defendant entered into an insurance contract concerning a building

located at 7620 Clinton Highway in Powell, Tennessee [Doc. 40]. On June 1, 2011, a fire
and alleged explosion occurred in the building, causing damage to the building and its
contents [Id. ¶ 7]. Plaintiffs argue these damages are covered under the insurance contract,
and that defendant has not fully compensated plaintiffs pursuant to the policy [Id. ¶ 10].
As a result, plaintiffs claim defendant has breached the insurance contract.
The parties do not dispute that defendant has compensated plaintiffs for damages
related to the fire, including damages from the fire itself, smoke damages, damages caused

by firemen, and for related business expenses [Doc. 28 p. 3]. The parties also agree that
the insurance contract covers “explosion” as a cause of loss [Id. at 2]. Defendant argues,
however, that no explosion occurred in relation to the fire, and therefore it is not obligated
to cover any additional damages allegedly caused by an explosion [Id.].
Defendant moved for summary judgment on the ground that plaintiffs have failed
to produce competent, admissible evidence to establish that an explosion occurred in the
building on June 1, 2011 [Docs. 27, 28]. Relatedly, defendant moved to exclude several
of plaintiffs’ expert witnesses under Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At least two of these witnesses, Todd
Duncan and Greg Lampkin, planned to offer testimony in support of plaintiffs’ position
that an explosion had, in fact, occurred in the building on June 1, 2011. The magistrate
judge conducted a hearing on defendant’s Daubert motions on May 10, 2018, and later
issued a written opinion denying the motions concerning Todd Duncan and Greg Lampkin
[Doc. 98].
II.

STANDARD OF REVIEW
Summary judgment under Federal Rule of Civil Procedure 56 is proper “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). The moving party bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th
Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light
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most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
Yet, “[o]nce the moving party presents evidence sufficient to support a motion under
Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.”
Curtis ex rel. Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991)
(citing Celotex, 477 U.S. at 317). To establish a genuine issue as to the existence of a
particular element, the nonmoving party must point to evidence in the record upon which
a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve
facts that might affect the outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth
of the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft
of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–
80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold inquiry of determining
whether there is a need for a trial—whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” Anderson, 477 U.S. at 250.

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III.

ANALYSIS
Defendant moves for summary judgment on the ground that plaintiffs have not

produced “competent, admissible evidence” from which a reasonable jury could conclude
that an explosion occurred in the insured building [Doc. 28 p. 7]. The parties agree that, at
least as relevant to the issue before the Court on summary judgment, this case turns on
whether an explosion occurred in the insured building [See id.]. If so, defendant is liable
to plaintiffs under the insurance contract for damages caused by the explosion. If not,
defendant has satisfied its duties under the contract by compensating plaintiffs only for
damages related to fire and smoke. Proceeding under this premise, defendant is correct
that it would be entitled to summary judgment if plaintiffs were unable to present evidence
to the jury that an explosion had occurred.
Defendant’s argument, however, has essentially been foreclosed by the magistrate
judge’s Daubert opinion, in which she found that the testimony of Todd Duncan and Greg
Lampkin is admissible [Doc. 98]. Todd Duncan, an engineer, plans to testify that the
“damage and movement of the structures [in plaintiffs’ building] are consistent with the
pressure caused by an explosion within the structure” [Doc. 98 p. 11]. Similarly, Greg
Lampkin, a certified professional fire inspector, plans to testify that “a low-order explosion
occurred” after fuel was ignited in the basement of plaintiffs’ building [Doc. 98 p. 5]. This
is evidence from which a reasonable jury could conclude that an explosion occurred in the
building. Whether or not an explosion occurred is thus a genuine dispute as to a material

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fact, and this issue may reasonably be resolved in favor of either party. The Court will thus
deny defendant’s motion for summary judgment.
To the extent defendant raised the question of causation in its sur-surreply brief
[Doc. 52], the Court need not consider this issue. Defendant’s motion and memorandum
in support were clear that the only issue before the Court was whether plaintiffs could
present competent, admissible evidence that an explosion occurred [Doc. 28 p. 7 (“The
basis of [defendant’s] motion for summary judgment is simple and direct . . . Plaintiffs
cannot prevail on their claims in the absence of competent, admissible evidence that an
explosion occurred in the building.”)]. Courts generally do not consider issues raised for
the first time in a reply brief, let alone a sur-surreply brief, as such issues have not been
fully briefed by the parties and are thus not appropriate for disposition. NetJets Large
Aircraft, Inc. v. United States, 80 F. Supp. 3d 743, 765 (S.D. Ohio 2015) (citing Wright v.
Holbrook, 794 F.2d 1152, 1156 (6th Cir. 1986), and Tonguette v. Sun Life & Health Ins.
Co., No. 2:12-CV-6, 2013 WL 1818620, at *4 (S.D. Ohio Apr. 29, 2013) (collecting cases
in which district courts declined to consider arguments raised for the first time in reply
briefs)).
Here, defendant has attempted to introduce a new issue in its sur-surreply brief.
Compare Defendant’s Memorandum in Support of Summary Judgment [Doc. 28 p. 7
(“Plaintiffs cannot prevail on their claims in the absence of competent, admissible evidence
that an explosion occurred in the building.”)], with Defendant’s Response to Plaintiffs’
Supplemental Response [Doc. 52 p. 2 (“To prevail in this case, plaintiffs must have
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admissible, competent evidence that an explosion occurred in the building and that the
explosion caused damages for which [defendant] had an obligation to pay under its
insurance policy.”) (emphasis added)]. Causation was not raised in defendant’s motion for
summary judgment, and plaintiffs have not had the opportunity to address this argument.
This issue is therefore not properly before the Court. Accordingly, the Court declines to
address it.
IV.

CONCLUSION
For the reasons discussed above, defendant’s motion for summary judgment [Doc.

27] is DENIED.
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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