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National Surety Corp. v. Georgia Power Co.

United States District Court, N.D. Georgia, Gainesville Division

September 12, 2019



          Richard W. Story United States District Judge

         This case is before the Court on Plaintiff's Partial Motion for Summary Judgment [81] and Motion in Limine to Exclude Testimony of Defense Expert C. Michael Dickinson [80], as well as Defendant's Motion for Summary Judgment [83] and Motions to Exclude Reports and Testimony of Plaintiff's Experts Edward Brill [84] and J. Michael Hawkins [85]. After reviewing the record and considering parties' arguments at oral argument on August 26, 2019, the Court enters the following Order.


         This is 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.

         On 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.

         Plaintiff 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 located.

         National 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 [24], 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.


         I. Standards of Review

         a. Summary Judgment

         Federal 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 (1986).

         The 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. at 249-50.

         Finally, 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 facts”).

         b. Admissibility of Expert Evidence

         Federal Rule of Evidence 702 governs the admissibility of proposed expert evidence:

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 ...

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