United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
Introduction and Procedural History
the Court is State Farm Fire & Casualty Company's
(“State Farm”) Motion for Summary Judgment
against Plaintiff John Brown's (“Mr. Brown”)
breach of contract claim. (Doc. 32). Also before the Court is
State Farm's Motion To Strike. (Doc. 50). The parties
have completed briefing these motions, and they are ripe for
review. (Docs. 48, 49, 55, 56). State Farm has requested oral
argument, but the Court is able to decide these motions on
the briefs, and the request is DENIED. For
the reasons stated in this opinion, the motions are due to be
GRANTED in part and otherwise
Statement of Facts
Brown and his wife, Virginia Brown (the
“Browns”), have continuously lived in their home
for approximately twelve years. Mr. Brown's home has a
concrete block foundation in the basement, with wood paneling
covering it. On October 2, 2014, lightning struck a tree
owned by Mr. Brown's neighbor-the tree was seventeen feet
and six inches from Mr. Brown's home. At the time of the
October 2nd storm (the “First Storm”), John
Brown's home was insured by State Farm under
Homeowner's Policy Number 01-GR-9065-23 (the
“Policy”). Approximately one week after the First
Storm, another rain storm (the “Second Storm”)
produced approximately one and one-half inches of rain.
Approximately three days after the Second Storm, Mr. Brown
found water leaking from under a closet in the basement.
Approximately one and one-half to two weeks after the First
Storm (and thus about one-half week to one week after the
Second Storm), Mr. Brown examined the closet and found that
the weight of his wife's clothing had pulled the closet
away from the wall. Mr. Brown then pulled the paneling away
from the wall and discovered that the concrete block
foundation had begun to collapse.
Brown contacted his State Farm Agent to report the concrete
block falling into the basement, and the loss was reported to
State Farm on Mr. Brown's behalf. On October 22, 2014,
State Farm received notice of Mr. Brown's claim, and
Claims Representative Amy King contacted Mr. Brown to set up
an appointment for his inspection. During the phone call with
Ms. King, Mr. Brown stated that the damage to his home was
caused by lightning (during the First Storm) that struck a
neighbor's tree, followed the roots of the tree, and hit
the side of his house, resulting in damage to the brick and
an interior wall.
October 27, 2014, Ms. King inspected Mr. Brown's home
with Mr. Brown and a trainer, Mike Milner, present. After the
inspection, Ms. King explained to Mr. Brown that a structural
engineer was needed to inspect the home to determine the
cause of the damage. State Farm retained Hal Cain, an
Alabama-licensed structural engineer from Cain &
Associates, to determine cause of the damage to Mr.
Cain indicated that the damage to the home was caused by
external soil forces - hydrostatic pressure - and that
lightning to the tree did not have any effect on the wall.
Mr. Cain cites Mr. Brown's statement that there was one
inch of water in his basement in the expert report. (Doc.
32-4 at 22-23). Mr. Cain also reported that “[a]n
exterior basement wall should be designed to resist the
outside forces produced by the soil and water, ” but
Mr. Brown's concrete foundation wall lacked concrete or
reinforcing steel inside of the blocks.
on State Farm's investigation and Mr. Cain's report,
State Farm sent a denial letter to Mr. Brown on November 21,
2014, explaining that the loss was not covered by the Policy.
the denial, Mr. Brown hired his own structural engineer,
David Carlysle, to inspect his home. Mr. Carlysle concluded,
in his original report, that “[g]iven the recent work
in the right portion of the basement, the significant
distress that has developed in the right foundation wall
since the wall was covered by 2 x 4s and paneling, and the
timing of the lightning strike, we find it likely that the
wall has been damaged by the lightning strike.” Mr.
Carlysle's report states that “[i]t is our opinion
that the lightning itself did not damage the house, but the
shock wave from the lightning strike caused damage to the
foundation wall.” (Doc. 32-10 at 84). Mr.
Carlysle's original report stated that the “shock
wave from the strike can be similar to that created by a
blast.” Mr. Carlysle did not find evidence of blasting
or impact on the foundational wall. Mr. Carlysle contended
that the foundation wall was built 35 years prior, when
non-reinforced hollow concrete block foundation walls were
the accepted method of construction. In spite of water
leaking into Mr. Cain's basement, Mr. Carlysle also
contended, based on a review of weather data, that the soil
was not saturated.
Farm submitted Mr. Carlysle's report to Mr. Cain for
review. Mr. Cain drafted a supplemental report, where he
noted that Mr. Carlysle failed to provide scientific proof to
otherwise prove that the lightning strike caused the
foundation wall to fail. Citing the lack of “of
evidence of lightning damage near the bottom of the tree,
” lack of broken windows, lack of roof damage, and lack
of damage to neighboring homes, Mr. Cain posits that
“[t]here was no evidence of shock wave damage
anywhere.” (Doc. 32-4 at 112-13). He reiterated
that the foundation wall was not properly designed and noted
that just because non-reinforced concrete walls were an
accepted design does not mean the walls are now structurally
sound. Mr. Cain also pointed out that he observed the
lightning-struck tree during his inspection, whereas Mr.
Carlysle did not see the lightning-struck tree (the tree had
been removed prior to Mr. Carlyle's investigation). Based
on Mr. Brown's own statement about the depth of the water
on the basement flooring and amount of water he personally
removed, Mr. Cain's supplemental report also reiterated
that the rainfall was higher than stated in the weather data
relied on by Mr. Carlysle.. Based on Mr. Cain's
supplemental report and the Policy language, State Farm
maintained its denial and sent a letter indicating that to
this lawsuit was filed, Mr. Brown disclosed Mr. Carlysle as
an expert. Mr. Carlysle submitted revised reports and was
deposed. During his deposition, Mr. Carlysle expressed his
opinion that the lightning strike caused damage to Mr.
Brown's underground foundation because it caused the
ground to shake. Mr. Carlysle reiterated that “the
sudden movement of the right foundation wall was caused by
seismic ground movement created by the pressure wave/thunder
from the lightning strike approximately seventeen feet six
inches from the right front corner of the house.” Mr.
Carlysle opined that thunder created seismic movement in the
soil. Mr. Carlysle's opinion is that the pressure wave,
or seismic movement, ultimately caused the ground to
move. He testified that it is his opinion that
lightning caused the thunder, which caused the movement of
the soil, which caused the foundational wall to fail.
Policy expressly excludes damages from earth movement,
regardless of the cause:
I - LOSSES NOT INSURED
2. We do not insure under any coverage for any loss which
would not have occurred in the absence of one or more of the
following excluded events. We do not insure for such loss
regardless of: (a) the cause of the excluded event; or (b)
other causes of the loss; or (c) whether other causes acted
concurrently or in any sequence with the excluded event to
produce the loss; or (d) whether the event occurs suddenly or
gradually, involves isolated or widespread damage, arises
from natural or external forces, or occurs as a result of any
combination of these:
b. Earth Movement, meaning the sinking,
rising, shifting, expanding or contracting of earth, all
whether combined with water or not. Earth movement includes
but is not limited to earthquake, landslide, mudflow,
mudslide, sinkhole, subsidence, erosion or movement,
resulting from improper compaction, site selection or any
other external forces. Earth movement also includes volcanic
explosion or lava low, except as specifically provided in
SECTION I - ADDITIONAL COVERAGES, Volcanic
the denial of Mr. Brown's claim, Mr. Brown testified
there has been further damage to all of the flooring in his
basement. Water comes in the basement when it rains, and
black mold has begun to accumulate in Mr. Brown's
basement underneath the flooring. Despite the damage in their
basement, Mr. Brown and his wife continue to live in their
home, have never moved out, and continue to have friends over
to their home. Mr. Brown understands that the Policy does not
cover earth movement, water damage resulting from earth
movement, or mold.
Motion To Strike
long been the law in this circuit that, when deciding a
motion for summary judgment, a district court may not
consider evidence which could not be reduced to an admissible
form at trial. See Macuba v. Deboer, 193 F.3d 1316,
1323 (11th Cir. 1999). But, until 2010, Rule 56 lacked a
formal procedure to challenge such inadmissible evidence. In
2010, the advisory committee added Rule 56(c)(2), which
A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.
Fed. R. Civ. P. 56(c)(2).
Motion for Summary Judgment
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper if the pleadings, Depo's, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary
judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings in answering the movant. Id.
at 324. By its own affidavits - or by the depositions,
answers to interrogatories, and admissions on file - it must
designate specific facts showing that there is a genuine
issue for trial. Id.
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. Chapman, 229
F.3d at 1023. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson,
477 U.S. at 248. A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. If the evidence
presented by the non-movant to rebut the moving party's
evidence is merely colorable, or is not significantly
probative, summary judgment may still be granted.
Id. at 249.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact - that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once
the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating
the existence of a triable issue of fact.” Id.
(citation omitted) (emphasis added).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996). The second method a
movant in this position may use to discharge its burden is to
provide affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
The Motion To Strike Is Due To Be Granted in Part and
Farm moves to strike “the testimony of Mr. Brown and
his contractors” regarding the issue of causation.
(See Doc. 50 at 2). State Farm argues that this
testimony is expert testimony and specifically objects to
testimony recited on pages 15-16, 19-20, 26, and 29 of
Brown's brief. (See Id. at 3-5). According to
testimony that Brown cites of an expert nature and intended
to prove causation includes:
• Vinsant testified he has personally seen numerous
instances of lightning damaged homes and that when lightning
is involved “you can just throw the book out.”
[Doc. 48] at 15.
• Vinsant personally inspected Brown”s property .
. . [which] contained no slope adjacent to the collapsed
foundation wall characteristic of other foundation walls he
has personally observed that were later determined to have
failed due to saturated soil and/or hydrostatic pressure.
• Mr. Sartain saw evidence that lightning traveled down
the tree to the ground and disturbed the soil between the
tree and house. Id.
• Mr. Smith testified that . . . approximately 30-days
prior to the event . . . the wall contained no cracks,
bulges, failures or other damage. Id.
• Mr. Bento testified . . . “[you can] rule out
groundwater . . . . I don't think anything but the
lightning could have done it, ...