United States District Court, N.D. Georgia, Gainesville Division
Richard W. Story United States District Judge
case is before the Court on Plaintiff's Partial Motion
for Summary Judgment  and Motion in Limine to Exclude
Testimony of Defense Expert C. Michael Dickinson , as
well as Defendant's Motion for Summary Judgment  and
Motions to Exclude Reports and Testimony of Plaintiff's
Experts Edward Brill  and J. Michael Hawkins . After
reviewing the record and considering parties' arguments
at oral argument on August 26, 2019, the Court enters the
a subrogation action to determine Georgia Power's
liability for the March 17, 2015 fire at Brandreth Farms in
Talking Rock, Georgia. The facts are largely undisputed.
March 16, 2015, Georgia Power's employees worked on
electrical equipment housed in the barn. The following
morning around 7:00 a.m. Brandreth woke up to his dogs
barking and walked outside to check on them. From his
carport, he saw the fire and a “white light” like
an “electrical arc” emanating from the wash rack
at the barn, which was approximately a “football field
and a half” away. (Def.'s SMF, Dkt. [83-7] at
¶¶ 10-11; Deposition of John Brandreth, Dkt. [83-4]
at 13:6-11, 52:10-13.) Brandreth ran to the barn to save his
horses. When he arrived, the barn was clear, but as he tried
to get the horses out, he saw the fire moving fast around the
open back wall and into the aisle. Brandreth exited safely,
but the fire destroyed the barn and the horses in it. It also
largely destroyed the nearby arena.
National Surety Corporation insured the property against fire
damage and, pursuant to its policy, indemnified Brandreth
Farms for losses arising from the fire, amounting to $742,
131.39. Plaintiff also hired fire investigator Michael
Hawkins to investigate the fire's origin and cause, which
was conducted on April 2015. Hawkins determined the fire
originated on the left, rear exterior of the barn where the
electrical meter base and electrical service entrance was
Surety initiated this action on February 1, 2017, alleging
Georgia Power's negligent work on the barn's
electrical service equipment caused the fire. Georgia Power
moved to dismiss the claim, which the Court denied , and
then Answered Plaintiff's Complaint with thirteen
affirmative defenses. Plaintiff now moves for partial summary
judgment on eight of them, as well as to exclude the
testimony of Defendant's expert, Michael Dickinson.
Defendant moves for summary judgment and to exclude the
expert testimony of Hawkins and Edward Brill. The Court will
consider each argument in turn, after first setting out the
applicable standards of review.
Standards of Review
Rule of Civil Procedure 56 requires that summary judgment be
granted “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.” “The moving party
bears ‘the initial responsibility of informing the . .
. court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.'” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go
beyond the pleadings and present affirmative evidence to show
that a genuine issue of material fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
applicable substantive law identifies which facts are
material. Id. at 248. A fact is not material if a
dispute over that fact will not affect the outcome of the
suit under the governing law. Id. An issue is
genuine when the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Id.
in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the
light most favorable to the non-moving party. Patton v.
Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.
2002). But, the court is bound only to draw those inferences
that are reasonable. “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). “If the
evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at
586 (once the moving party has met its burden under Rule
56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material
Admissibility of Expert Evidence
Rule of Evidence 702 governs the admissibility of proposed
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 ...