Metropolitan Lloyds Insurance Company of Texas v. Louisiana-Pacific Corporation

Filing 45

ORDER DENYING as MOOT 35 Motion for Leave to File Excess Pages; GRANTING 21 Motion for Summary Judgment; DENYING as MOOT 22 Motion to exclude; DENYING as MOOT 23 Motion to Strike ; DENYING as MOOT 34 Motion for Leave to File. Signed by Judge Sam Sparks. (jf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

17SEp21
CLERt,tj

METROPOLITAN LLOYDS
INSURANCE COMPANY OF TEXAS,
AS SUBROGEE OF THOMAS AND
KRISTA PERDUE;
Plaintiff,

WESTEaN

All

9:39

iSTflCT COURT

OF TEXAS

CAUSE NO.:
A-16-CA-00424-SS

-vs-

LOUISIANA-PACIFIC
CORPORATION,
Defendant.

ORDER
BE IT REMEMBERED on the 31st day of August 2017, the Court held a
hearing in the

above-styled cause, and the parties appeared by and through counsel.

Before the Court is

Defendant Louisiana-Pacific Corporation (LP)'s Motion for Summary Judgment [#21],
Plaintiff
Metropolitan Lloyds Insurance Company of Texas (Metropolitan)'s Response
[#25] in

opposition, LP's Reply [#3 3] in support, Metropolitan's Letter Brief [#43], and LP's Letter
Brief
[#44].1

Having reviewed the documents, the governing law, the arguments of counsel at the

hearing, and the file as a whole, the Court now enters the following opinion and orders.

Background
This case involves a fire at the home of Thomas and Krista Perdue. The Perdues'
home

contained TechShield, a radiant barrier roofing system manufactured by LP. TechShield is
wood

roof decking with a layer of thin aluminum and paper glued to the inside of the decking.
Mot. Sunim. J. [#21-1] Ex.

1

See

(St. Germain Dep.) at 138:9-15. The aluminum in TechShield

The Court also considered LP's Motion to Exclude the Testimony of Ronald
Simmons [#22], LP's
Motion to Strike Supplemental Report of Ronald Simmons [#23], and
Metropolitan's motions for leave to file
responses to these motions, which it hereby DENIES as moot in view of this opinion.

I

helps reduce solar heat gain to
keep the home cooler and reduce
electricity costs during the
summer. See id. at 137:8-138:2.

On May 13, 2015, the Perdues' home
caught fire during a lightning storm.
The Perdues
filed a claim with their home
insurer, Metropolitan. See Mot.
Summ. J. [#21-4] Ex. 4
(Metropolitan Claim Notes). Metropolitan
had the home inspected by a fire
inspector, Mark
Howell, who identified the cause of the
fire as "lightning energizing the
electrical or possible the
black pipe gas line causing the cellulose
insulation to catch fire and then burning
through the
roof." Id. at 4. Metropolitan paid the
Perdues for damage caused by the fire
pursuant to their
insurance policy.

Following the initial inspection, Metropolitan
had the Purdue's home re-inspected by its
technical expert, Ronald Simmons. Mr.
Simmons issued a report on October 8,
2015,
concluding "[t]he fire was caused by the
unique combination of electrical and thermal
characteristics and behaviors of reflective radiant
barrier material when energized by electricity,"
and "[i]f not for the presence of the
reflective radiant barrier in the roof [sic] this
house, this fire
would not have occurred." Mot. Summ. J.
[#21-8] Ex. 8 (Simmons Report) at 10.
On February 29, 2016, Metropolitan filed
this
District Court of Travis County, Texas.

See

lawsuit4

against LP in the 250th Judicial

Notice Removal [#1-3] Ex. A-2 (Pet.). LP
removed

the case to this Court on March 1, 2016,
invoking the Court's diversity jurisdiction.
Removal [#1].

See

Notice

LP filed the instant motion for
summary judgment on June 2, 2017, and
Metropolitan
responded on June 16, 2017. On the same day,
LP also moved to exclude the
testimony of
Metropolitan filed this suit in Thomas and Krista
Perdues' names as subrogee of the Purdues. See
Pet. ¶ 12 ("Having made payments to, or
Orig.
on behalf of, its insureds, Metropolitan is
contractually and/or equitably
subrogated to Thomas and Krista Perdues'
rights and causes of action and has brought this
lawsuit asserting its
subrogation rights and causes of action.").

Metropolitan's expert, Ronald Simmons,
and moved to strike Simmons'
supplemental report.
See Mot. Exclude [#22];
Mot. Strike [#23]. The Court
conducted a hearing on the pending
motions on August 31, 2017. The
parties subsequently submitted
supplemental briefing as
requested by the Court at the hearing. See
Metropolitan's Br. [#43]; LP's Br. [#44].
LP's motion for summary judgment is
fully briefed and now ripe for
consideration.
Analysis
I.

Legal Standard

A.

Summary Judgment

Summary judgment shall be rendered when
the pleadings, the discovery and
disclosure
materials on file, and any affidavits show
that there is no genuine dispute as to any
material fact
and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P.
56(a);
Celotex Corp. v. Catrett, 477 U.S. 317,
323-25 (1986); Washburn v. Harvey, 504 F.3d
505, 508
(5th Cir. 2007). A dispute regarding a
material fact is "genuine" if the evidence is
such that a
reasonable jury could return a verdict in
favor of the nonmoving party. Anderson
v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
When ruling on a motion for summary
judgment, the
court is required to view all inferences drawn
from the factual record in the light most
favorable
to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574,
587 (1986);
Washburn, 504 F.3d at 508. Further, a court
"may not make credibility determinations or
weigh
the evidence" in ruling on a motion for
summary judgment. Reeves v. Sanderson
Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial
showing that there is no evidence to support
the nonmoving party's case, the party
opposing the motion must come forward with
competent
summary judgment evidence of the existence of
a genuine fact issue. Matsushita, 475 U.S.
at

-3-

586. Mere conclusory
allegations are not competent summary
judgment evidence, and thus are

insufficient to defeat a motion for
summary judgment. Turner v. Baylor
Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir.
2007). Unsubstantiated assertions,
improbable inferences, and
unsupported speculation are not
competent summary judgment evidence.
Id. The party
opposing summary judgment is required
to identify specific evidence in
the record and to
articulate the precise manner in which
that evidence supports his claim.
Adams v. Travelers
Indem. Co. of Conn., 465 F.3d 156,
164 (5th Cir. 2006). Rule 56
does not impose a duty on the
court to "sift through the record in
search of evidence" to support the
nonmovant's opposition to
the motion for summary judgment.
Id.

"Only disputes over facts that might
affect the outcome of the suit under the
governing
laws will properly preclude the
entry of summary judgment."
Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant
and unnecessary" will not be
considered by a court in
ruling on a summary judgment motion.
Id. If the nonmoving party fails
to make a showing
sufficient to establish the existence of an
element essential to its case and on which
it will bear
the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S.
at 322-23.
II.
Application
LP argues it is entitled to
summary judgment because Metropolitan
fails to raise a
genuine issue of fact on essential elements
for all its claims: (1) strict liability
design defect, (2)
strict liability marketing defect,
and (3) negligence.2 Metropolitan
counters it has presented
evidence as to all elements of its claims.

-

-

2

LP also argues Metropolitan failed
to raise an issue of material fact as to its
breach of implied warranty of
merchantability claim. See Mot. Summ. J. [#21]
at 5. However, the parties have since
claim with prejudice, and therefore
stipulated to dismissal of this
LP's arguments on this point are moot.
See Stipulation [#24]. Based on
agreed stipulation, Metropolitan's
the
breach of implied warranty of
merchantability claim is DISMISSED with
prejudice.
-.4-

As set forth below, the
Court finds LP is entitled to
summary judgment on each of
Metropolitan's causes of action. The
Court will address each cause of
action in turn.

A.

-

Strict Liability Design Defect

To prevail on a design defect
case, a plaintiff must show:
(1) because of its defective
design the product is unreasonably
dangerous, (2) a safer alternative
design exists, and (3) the
defective design was the producing
cause of the plaintiffs' injuries.
Flock v. Scripto-Tokai
Corp., 319 F.3d 231, 236 (5th Cir.
2003). A safer alternative "must
substantially reduce the risk
of injury and be both
economically and technologically
feasible." Gen. Motors Corp. v.
Sanchez, 997 S.W.2d 584, 588
(Tex. 1999). Generally, design
defect claims require competent
expert testimony, especially in cases
such as this one that involve
scientific principles beyond the
scope of common knowledge. See
Liberty Ins. Corp. v. Caterpillar,
Inc., 2014 WL 2980275, at
*4 (W.D.
Tex. July 1, 2014) (citing
Champion v. Great Dane Ltd. P'ship,
286 S.W.3d 533, 538
(Tex. App.Houston [14th Dist.]
2009, no pet.)).
LP contends Metropolitan fails
to produce evidence of a
reasonable alternative design, a
design defect, and causation. The
Court agrees Metropolitan has failed
to present evidence of a
reasonable alternative design, and
therefore does not consider LP's other
arguments.
Metropolitan identifies LP's oriented strand
board (OSB) and FlameBlock roof
sheathing
products, and Solec's LO/MIT radiant
barrier paint products as reasonable
alternative designs to
"eliminate fire hazard." Resp. [#25] at
6-9. However, Metropolitan does not
offer expert
opinion on how these alternative
designs substantially reduce the risk of
fire as compared to LP's
TechShield product. Given the complex
electric principles at issue in this case,
expert opinion is
necessary to assist the trier of fact in
evaluating how these alternative designs
compare to LP's
TechShield product with respect to fire
hazard from lightning strikes.

The only expert Metropolitan
relies on for alternative design its
technical expert, Mr.
Simmons. See Resp. [#25] at 6-9.
However, Mr. Simmons conceded in his
deposition he has
no opinions regarding alternative
designs in this case. See Mot. Summ.
J. [#25-7] Ex. 7
(Simmons Dep.) at 280:18-282:6. As to
traditional OSB, Mr. Simmons admitted he has
no
opinions regarding "statistically significant
increased risk of a fire in a home that is struck
by
lightning when that home has a radiant barrier
versus when the home does not have a radiant
barrier." Id. at 67:14-22. Mr. Simmons offers no
opinion on FlameBlock roof sheathing. With
regard to Solec's products, Metropolitan references
a business letter Mr. Simmons wrote to Solec
in which he stated "unlike all of the other
radiant barrier materials tested, SOLEC material
never
ignited." Resp. [#25-13] Ex. 24 (Simmons Letter).
Mr. Simmons described his testing of Solec
products in this letter as "preliminary' since the
number of samples was very small that the
testing was not duplicated," and further that the
testing "provides no guarantee of which might
occur if the material is exposed to lightning." Id.
at 2. Although Mr. Simmons' letter to Solec
was produced in this case, it was not part of his
expert report, and it contains no comparison of
Solec's products to LP's TechShield at issue in this
case. In sum, Metropolitan has failed to
present an expert opinion on how any of its three
proposed alternative designs are substantially
safer than LP's TechShield product.
LP is entitled to summary judgment as a
matter of law on Metropolitan's design defect

claim because Metropolitan lacks expert opinion
to generate a fact issue as to the existence of a
safer alternative design.

designs.

Metropolitan's other experts, Mark Howell and Kelly
Coiwell, do not offer opinions on alternative
Mot. Summ. J. [#21-9] Ex. 9 (Howell Report); id
[#21-101 Ex. 10 (Coiwell Report).

See

B.

Strict Liability - Marketing Defect

To prevail on its marketing defect claim,
Metropolitan must to show: (1) a risk of harm
inherent in the product or which may arise
from the intended or reasonably anticipated
use of the
product; (2) the product supplier actually
knew or should have reasonably foreseen the
risk of
harm at the time the product was marketed;
(3) the product contains a marketing
defect; (4) the
absence of a warning renders the product
unreasonably dangerous to the ultimate user or
consumer of the product; and (5) the failure
to warn must constitute a causative nexus
in the
product user's injury. Wright v. Ford Motor Co.,
508 F.3d 263, 274-75 (5th Cir. 2007).
LP argues Metropolitan has failed to
produce any evidence of a marketing defect.
Specifically, LP contends Metropolitan's marketing
defect claim is a restatement of its design
defect claim, Metropolitan has offered no expert
testimony for this claim, Metropolitan has failed
to establish a lack of warnings or
instructions renders TechShield unreasonably dangerous,
and
Metropolitan has failed to raise an issue of material fact as
to causation.
In response, Metropolitan cites evidence it
contends supports its marketing defect claim:

LP's employee's deposition testimony agreeing
warnings against

foreseen hazards of its products

is a good policy, Mr. Simmons' deposition
testimony regarding product testing, LP's expert's
deposition testimony agreeing TechShield conducts
electricity, a lack of TechShield warnings

regarding lightning, and example warnings on LP's
TechShield product. Resp. [p25] at 11-13.
None of the cited evidence supports the
existence of a marketing defect, the absence of a
warning that renders TechShield unreasonably
dangerous to the consumer, or a causative nexus
between LP's failure to warn and the fire damages
sustained at the Perdue home.

Because Metropolitan has failed to identify
evidence to support all elements of its
marketing defect claim, LP is entitled to summary
judgment as a matter of law. See Timoschuk

-7-

v.

Daimler Trucks N Am., LLC, 2014 WL 2592254, at *3 (W.D. Tex.
June 10, 2014) (granting

summary judgment for lack of evidence as to all elements of its
marketing defect claims).

C.

Negligence
Under Texas law, a negligence claim differs from strict product
liability claims. "While

strict liability focuses on the condition of the product,
negligence looks at the acts of the

manufacturer and determines

if it exercised ordinary care in design and production."

Am.

Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 437 (Tex.
1997) (citations and quotations

omitted). "Negligent design and manufacturing claims are
predicated on the existence of a safer

alternative design for the product." Id. "Absent an alternative
design, a claim for negligent

design or manufacturing fails as a matter of law." Id.

Metropolitan's Original Petition asserts negligence based on LP's
"manufacturing,
assembly, design, sale and distribution" of its TechShield radiant
barrier. Orig. Pet. ¶ 32-36.
In response to LP's motion for summary judgment,
Metropolitan focuses its negligence claim on

LP's design of the TechShield product. See Resp. [#25] at 14 ("The
duty to design a safe
product

. .

."); Id. at 15 ("In the design of a product. . ."); Id ("But LP did not evaluate the risk

inherent in its product design.").4
As explained above, Metropolitan has failed to carry its burden
of establishing the

existence of a safer alternative design to LP's TechShield.
Metropolitan's negligence claim fails
because a safer alternative design is a predicate to Metropolitan's
negligence claim in this case.

To the extend Metropolitan contends its negligence claims are based on
other LP's actions besides its
design and marketing of TecbShield, Metropolitan has failed to identif'
record evidence to support these alternate
theories of negligence.

-8-

Conclusion
Accordingly:
IT IS ORDERED that Defendant LP's Motion for Summary Judgment
[#21] is

GRANTED;
IT IS FINALLY ORDERED that all pending motions in this case are
DENIED as
moot.

SIGNED this the

2

0

day of September 2017.

SAM SPARKS /1
UNITED STATE'DISTRICT JUDGE