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Brown v. State Farm Fire & Casualty Co

United States District Court, N.D. Alabama, Southern Division

July 25, 2018

JOHN BROWN, Plaintiff,



         I. Introduction and Procedural History

         Before 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 DENIED.

         II. Statement of Facts

         Mr. 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.[1] Mr. Brown then pulled the paneling away from the wall and discovered that the concrete block foundation had begun to collapse.

         Mr. 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.

         On 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. Brown's home.

         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.

         Based 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.

         Following 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.

         State 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).[2] 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 Mr. Brown.

         After 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.[3] 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.

         The Policy expressly excludes damages from earth movement, regardless of the cause:


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 Action.

         Since 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.

         III. Standards

         A. Motion To Strike

         It has 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 provides:

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).

         B. Motion for Summary Judgment

         Under 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.

         The 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.

         How the 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).

         For 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.

         IV. Analysis

         A. The Motion To Strike Is Due To Be Granted in Part and Otherwise Denied

         State 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 State Farm:

         The 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. Id.
• 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, ...

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