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Finch v. Owners Insurance Co.

United States District Court, S.D. Georgia, Statesboro Division

December 6, 2017

CARRIE FINCH, Plaintiff,



         Before the Court are Plaintiff (doc. 57) and Defendant's (doc. 28) motions to exclude expert witness testimony and Defendant's motion for summary judgment. (Doc. 27.) The Clerk has given Plaintiff notice of the summary judgment motion and the summary judgment rules, of the right to file affidavits or other materials in opposition, and the consequences of default. Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), have been satisfied. For the following reasons, Plaintiff and Defendant's motions to exclude expert testimony (docs. 28, 57) are DENIED and Defendant's motion for summary judgment (doc. 27) is GRANTED IN PART and DENIED IN PART.[1]

         I. BACKGROUND

         In January 2016, Plaintiff Carrie Finch's daughter, Donna Finch, discovered damage to the roof of Plaintiff's house.[2](Donna Finch Dep., Doc. 27-1, 33:17-21.) The damage was caused by a hailstorm that passed over the house in June 2015. (Dukes Dep., Doc. 27-2, 31:2-4.) After noticing the damage, Plaintiff filed a claim with Defendant Owners Insurance Company under the Plaintiff's homeowners insurance policy ("the Policy"). (Donna Finch Dep., 46:12-14.)

         Defendant's claim adjuster John Dukes inspected the house on January 19, 2016. (Dukes Dep., 32:2-14.) After deciding the roof was damaged by hail, Defendant mailed a check for the estimated cost of repairing the roof. (Id.) Plaintiff replaced the roof sometime between April and May 2016. (Minick Dep., Doc. 27-4, 25:19-21.)

         Around mid-February 2016, before Plaintiff had replaced her roof, she learned that the house had mold damage. (Darrell Finch Dep., Doc. 27-3, 57-60.) Plaintiff filed a new claim and Mr. Dukes brought engineer Ron Powers to inspect the home on February 23, 2016. (Dukes Dep., 54:7-15.) Mr. Powers told Mr. Dukes that the cause of the mold damage was surface water, improper construction, and inadequate maintenance. (Id. at 84:3-6.) Defendant, however, claims the Policy does not cover such damages. On March 10, 2016, Plaintiff received Defendant's coverage position letter refusing to pay for the mold damage. (Dukes Dep., 78:13-16.)

         On July 25, 2016, Plaintiff sent a demand to have Defendant pay for the mold damage. (Compl., ¶ 38.) The parties could not come to an agreement, and Plaintiff filed suit for breach of contract and bad faith refusal to pay a claim in the Superior Court of Screven County, Georgia. (Id. at 1.) Defendant removed the action on the basis of diversity jurisdiction on December 13, 2016. (Doc. 1-2.)

         According to the original scheduling order, Plaintiff had until March 19, 2017, to furnish any expert witness report. (Doc. 9.) On March 16, 2017, Plaintiff disclosed the expert witness reports of Stuart Gregory, Frank Parson, Susan Cox, and Tim Durden.[3] (Doc. 28, Exs. A.-C.) On May 9, 2017, Defendant complained that the reports of Mr. Gregory, Ms. Cox, and Mr. Durden did not satisfy Federal Rule of Civil Procedure 26(a)(2)(B). (Doc. 34-1, 27.) Plaintiff disclosed supplemental reports for those experts on May 23, 2017. (Id. at 37, 42) However, Defendant claims Plaintiff's supplemental reports were still insufficient.

         On May 5, 2017, Defendant's counsel met with Mr. Gregory during Mr. Gregory's investigation into the cause of the mold damage. (Rountree Aff., Doc. 51-1, ¶ 4.) However, on June 26, 2017, Defendant informed Plaintiff that it would not depose Mr. Gregory and intended to challenge Mr. Gregory, Mr. Durden, and Ms. Cox's testimony because of Plaintiff's untimely disclosure. (Doc. 34-1, 99.) Plaintiff subsequently had Mr. Gregory submit a more comprehensive report. (Id. at 141.) However, at the close of discovery on July 3, 2017, Mr. Gregory, Mr. Durden, and Ms. Cox had still not been deposed.


         A. Defendant's Motion to Exclude Expert Testimony

         Initially, Defendant argues that all Plaintiff's experts should be excluded because Plaintiff's expert witness reports were untimely and inadequate. Under Federal Rule of Civil Procedure 26(a)(2)(B), a party must identify any expert witness it intends to use at trial. Additionally, ninety days before trial or at a date set by the Court, the party must produce an expert witness report. Fed.R.Civ.P. 26(a)(2)(B). An expert witness report should facilitate the discovery process by helping parties prepare cross-examination and find rebuttal experts. See Abdulla v. Klosinski, 898 F.Supp.2d 1348, 1357 (S.D. Ga. 2012). District courts have "wide latitude" to exclude inadequate or untimely expert witness reports. See Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339, 1349 (11th Cir. 2004).

         1. Stuart Gregory's Testimony Will not be Excluded

         Defendant complains that Mr. Gregory's initial report, which was disclosed by March 19, 2017, was inadequate. Pursuant to Rule 26(a)(2)(B), an expert witness report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or ...

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