Bellina v. Liberty Mut. Ins. Co.

DEBORAH BELLINA v. LIBERTY MUTUAL INSURANCE COMPANY

CIVIL ACTION NO. 19-13711 SECTION "R" (3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

April 7, 2021

ORDER AND REASONS

There are three motions before the Court. Defendant, Liberty Personal Insurance Company (Liberty),¹ moves for partial summary judgment on plaintiff's bad faith claims.² Liberty also moves in limine to exclude the testimony of plaintiff's expert, Brandon Simoneaux.³ Plaintiff, Deborah Bellina, moves in limine to limit the expert testimony of Liberty's three experts, Dr. Lee Branscome, CCM; Jason Johnston, PE; and F. Dirk Carvajal, PE.⁴ Bellina also moves to judicially estop Liberty from arguing that there was no hailstorm on the date of Bellina's reported loss.⁵

For the reasons that follow, the Court grants Liberty's motion for partial summary judgment, denies Liberty's motion in limine to exclude Brandon Simoneaux's expert testimony, and denies all of the relief that Bellina seeks in her motion in limine.

I. BACKGROUND

This case arises from property damage caused by an alleged hailstorm. Plaintiff, Deborah Bellina, alleges that, on January 18, 2019, she owned a house located at 72530 Military Road, St. Tammany Parish.⁶ On that date, Bellina claims that a hailstorm passed through the area causing significant damage to her house.⁷ Specifically, Bellina alleges that the roof of the maindwelling on her property, made of fiber cement shingles, was damaged by hail.⁸

It is undisputed that there is no meteorological evidence to indicate that hail fell on Bellina's property on January 18, 2019.⁹ It is also undisputed that Bellina was not in the house, nor on the property, at the time of the alleged hailstorm.¹⁰ Rather, Bellina was on vacation in Perdido Key, Florida, and returned home "a day or two after" the alleged January 18, 2019 storm, and claims to have noticed pieces of fiber cement shingles in her driveway upon her return to the property.¹¹ She also stated that a friend and neighbor told her that there was a hailstorm while she was away.¹²

On January 25, 2019, Bellina reported the alleged hailstorm to Liberty and filed a coverage claim under her homeowners policy.¹³ Kate French, aLiberty claims adjuster, was assigned to adjust Bellina's claim.¹⁴ French inspected Bellina's property on January 31, 2019.¹⁵ French was trained not to crawl or walk on fiber cement shingles because of their fragility.¹⁶ Instead, French testified that her inspection involved cooperation with an entity known as "Ladder Now."¹⁷ French testified that a representative from Ladder Now—whose name she could not recall—placed a ladder against the pitch of the roof, and climbed up the ladder.¹⁸ But the representative did not get off of the ladder to inspect the roof because of the concern that doing so would damage the fiber cement tiles.¹⁹ As a result, French testified that a follow-up drone inspection was ordered to assess the roof's condition.²⁰

But French did conclude that other structures on Bellina's property were damaged by hail.²¹ Those structures were roofed with asphaltshingles,²² as opposed to the fiber cement shingles on the roof of Bellina's main dwelling. French testified that it is not unusual for some structures to show hail damage, while others do not. She explained that "when you have a higher end roof, it does its job" in contrast to roofs made of less sturdy materials.²³ French testified that the detached structures on Bellina's property had a "poor" roof structure and likely could have been damaged by "penny sized hail."²⁴ French also testified that, although there was hail damage to the detached structures, she could not determine when that damage occurred.²⁵

On February 8, 2019, Liberty engaged Jason Johnston, an engineer with Envista Forensics, to perform the drone inspection of the fiber cement shingle roof on Bellina's main dwelling.²⁶ During his inspection, Johnston placed a ladder on the edge of the roof and "physically touch[ed] and inspect[ed] the roofing" from his ladder.²⁷ Johnston used the drone to takepictures of the higher elevations of the roof.²⁸ Johnston was able to take photos within two feet of the roof's surface with the drone.²⁹ After his inspection, Johnston concluded that "the fiber cement tile roof . . . had not sustained any hail impact-related damage."³⁰ Rather, Johnston found that "the roofing exhibited fractures consistent with mechanical damage[³¹] as well as edge delamination and erosion/pitting consistent with long-term wear/weathering."³²

Soon after Johnston's inspection, Liberty declined to pay Bellina's claim. Explaining Liberty's decision, French testified that Liberty found coverage for the hail damage to the detached structures on Bellina's property.³³ But Liberty found that the damage to the roof of Bellina's main dwelling fell within the ambit of the policy's "wear, tear, and deterioration" exclusion.³⁴ The relevant policy exclusion provides:

SECTION I - PERILS INSURED AGAINST

COVERAGE A - DWELLING and COVERAGE B - OTHER STRUCTURES

We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property.

We do not insure, however, for loss;

2. Caused by:

e. Any of the following:

(1) Wear and tear, marring, deterioration:

(2) Inherent vice, latent defect, mechanical breakdown.³⁵

French testified that Liberty found that the total amount of the covered loss, which included the detached structures, fell below Bellina's deductible.³⁶ As a result, Liberty did not pay Bellina's claim.³⁷

Following Liberty's determination on coverage, Bellina engaged Brandon Simoneaux, a general contractor, to inspect the roof of her main dwelling.³⁸ In contrast to French and Johnston, Simoneaux climbed on tothe roof of Bellina's main dwelling to inspect it.³⁹ Simoneaux concluded that the roof of Bellina's main dwelling was damaged by hail.⁴⁰

Bellina filed suit in state court on September 30, 2019.⁴¹ After litigation ensued, more experts weighed in on whether the roof of Bellina's main dwelling was damaged by hail. In November 2020, Liberty's certified meteorologist, Dr. Lee. E. Branscome prepared an expert report.⁴² In an accompanying affidavit, Branscome avers that "there is no meteorological evidence of any kind to indicate that hail fell at the property on . . . January 18, 2019."⁴³ Moreover, Branscome attests that "there were no reports of hail in St. Tammany Parish for any day during the study period, July 1, 2018 through January 25, 2019."⁴⁴ Branscome further notes that, "if any hail fell on the property during the study period, it was small in size (approximately pea-size) and of brief duration (lasting less than a minute or two).⁴⁵

Finally, at Bellina's request, Liberty engaged Dirk Carvajal, a civil engineer, to perform a follow-up inspection of the property on December 18,2019.⁴⁶ In his affidavit, Carvajal avers that his conclusion was consistent with what Johnston found from his drone inspection—that "the fiber cement shingle roof at the subject property did not sustain any hail damage" and that the damage he observed was instead consistent with "long-term wear/weathering in conjunction with material deficiencies."⁴⁷

Plaintiff's suit is for coverage for the roof of her main dwelling.⁴⁸ In addition, plaintiff seeks statutory penalties against Liberty, contending that Liberty acted in bad faith for failing to timely pay on the claim.⁴⁹ Liberty moves for partial summary judgment on Bellina's bad faith claims.⁵⁰ In addition, Liberty moves in limine to exclude the testimony of Bellina's expert witness, Brandon Simoneaux.

Bellina moves to limit⁵¹ the expert testimony of Liberty's witnesses, Johnston, Carvajal, and Branscome, contending that none is qualified to render an opinion about the cause of damage to Bellina's roof.⁵² In addition,Bellina asks that Liberty be judicially estopped from taking the position that there was no hailstorm on Bellina's property on the date of the loss.⁵³ The Court considers the motions below.

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is warranted when "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." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth 'ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not...