SFR Servs. LLC v. Elec. Ins. Co.

SFR SERVICES LLC, a/a/o KEITH AND PHYLLIS TUMULTY, Plaintiff, v. ELECTRIC INSURANCE COMPANY, Defendant.

Case No. 8:19-cv-2013-CPT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

March 30, 2021

ORDER

Before the Court are (1) the Defendant's Motion for Summary Judgment (Doc. 27); (2) the Defendant's Motion to Strike/Limit Plaintiff's Expert Joseph Butler's Testimony (Doc. 28); and (3) the Defendant's Motion to Strike Affidavit of Plaintiff's Expert, Joseph Butler (Doc. 35). For the reasons set forth below, the Defendant's motions are denied.

I.

This action stems from an insurance coverage dispute involving a homeowner's policy Defendant Electric Insurance Company (EIC) issued to Keith and Phyllis Tumulty for the protection of their residence near Florida's coastline. (Doc. 33-8). Between September 9 and September 11, 2017, a significant storm—known as Hurricane Irma—passed over the western portion of Florida, including the area in and around the Tumultys' dwelling. (Doc. 28-4 at 10).

Roughly sixteen months later, in January 2019, the Tumultys retained Plaintiff SFR Services LLC (SFR) to investigate their tile roof, believing that it had suffered damage from Hurricane Irma. (Doc. 33-1). As part of their agreement with SFR, the Tumultys assigned to SFR the rights to any insurance benefits that EIC might pay in connection with SFR's repair work. Id. Concurrently, the Tumultys also submitted a notice of claim with EIC. (Doc. 27-2 at 2).

SFR tasked one of its sales personnel, Patrick Kinney, with evaluating the Tumultys' residence and, based on that assessment, SFR informed EIC that the Tumultys' entire roof would need to be replaced at a total cost of $139,849.80. (Doc. 27-4).¹ In response to this claim, EIC hired Dan Connell to conduct an on-site inspection of the Tumultys' home and to prepare a written account of the damage Connell observed. (Doc. 27-2 at 3). Connell subsequently reported to EIC that he found no evidence of any wind damage and that any issues with the roof were the result of ordinary wear-and-tear. Id. EIC thereafter relayed this report to the Tumultys and SFR. (Doc. 27 at 7).

The following month, SFR provided EIC with a Forensic Engineering Report prepared by Joseph Butler of ButlerMatrix, LLC, which was predicated upon Butler'sreview of photographic evidence Kinney obtained during his initial evaluation of the Tumultys' roof. (Doc. 27 at 7; Doc. 34-1). In his report, Butler opined, in pertinent part, that (1) multiple tiles on the Tumultys' roof were "displaced," "detached," "cracked," or otherwise "damaged" and were consistent with, inter alia, "windborne debris strikes" and/or "uplift pressures created by high wind loading;" (2) certain weather data evidenced that the Tumultys' property was subjected to "wind gusts [of] more than [ninety miles per hour]" upon Hurricane Irma's passing; (3) "[w]ind gusts of this magnitude were significant causal factors associated with the observed damage to the [Tumultys'] roof system;" and (4) statements made by the Tumultys that Hurricane Irma had damaged their home, along with a review of historical National Oceanic and Atmospheric Administration (NOAA) "weather data support[ed] the opinion that Hurricane Irma [was] the storm event that caused the damage observed at the [Tumultys'] property." (Doc. 34-1 at 3, 10, 19). Butler included with his report a "[three]-sec[ond] wind speed contour [m]ap" covering Florida for the time period of the "Hurricane Irma Storm Event," as well as several photos depicting "representative damage" to the Tumultys' roof. Id. at 3-6.

After receiving Butler's report, EIC retained Christopher Smith of The Vertex Companies, Inc., to perform a second on-site inspection of the Tumultys' home and to prepare a statement of his findings. (Doc. 27 at 7). Smith subsequently issued a report in late March 2019, in which he determined that, consistent with Connell's assessment, the damage to the tiles on the Tumultys' roof was not caused by either astorm or wind. (Doc. 27-7 at 7). Smith concluded that the issues with their tile roof were instead partly due to "cyclical thermal expansion and contraction of the tiles and damage from foot traffic which occurred likely during routine access and maintenance of the roof." Id. at 9. Smith also found that the tile damage was consistent with "age, deterioration, and wear/tear of the materials used to adhere/attach the tiles to the roof." Id. Smith included with his report a Hurricane Irma "gust wind field" map that he obtained from the Federal Emergency Management Agency, which, in turn, was derived from NOAA data. Id. at 20.

Roughly a month later, in April 2019, EIC denied the Tumultys' claim and notified SFR of the same. (Doc. 27-8). In a letter explaining its denial, EIC noted that the Tumultys' homeowner's policy did not cover losses stemming from ordinary wear-and-tear and that, based primarily on Smith's report, EIC had determined the tile damage on the Tumultys' roof was attributable to this cause, rather than Hurricane Irma. Id.

SFR thereafter initiated this action in state court, asserting that EIC breached the Tumultys' policy by failing to pay for SFR's proposed repairs to the Tumultys' roof. (Doc. 1 at 6-9). EIC subsequently removed the matter to this Court based on the Court's diversity jurisdiction. Id. at 1-5. Following removal, the Court entered a Case Management and Scheduling Order (CMSO), which required that SFR and EIC "complete" and "serve" their expert disclosures by April 10, 2020, and April 24, 2020,respectively; that the parties finish their discovery by June 3, 2020; and that dispositive and expert-related motions be filed by no later than July 6, 2020. (Doc. 15).

On April 1, 2020, Butler conducted an in-person inspection of the Tumultys' residence and produced an updated Forensic Engineering Report six days later, which SFR disclosed to EIC. (Doc. 34-4).² While Butler's revised report largely mirrored his original account (including referencing the same three-second wind speed contour map and the NOAA data), it contained, inter alia, additional pictures of the tile damage (reflecting missing tiles not depicted in his earlier report); a revised estimate that the winds gusts at the time of the damage were "more than [eighty miles per hour]" (not ninety miles per hour, as he had previously opined); and the results of Butler's repair-related testing and analysis of the detached tiles, which he predicated, in part, on the Florida Building Code Testing Application Standard (TAS) 102-95. Id.

EIC's instant motions for summary judgment and to strike Butler's expert testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (Daubert) soon followed. (Docs. 27, 28). SFR has responded in opposition to EIC's motions (Docs. 33, 34) and has offered, among other documents, a supplemental affidavit from Butler, in which he tenders additional information regarding his two earlier reports (Doc. 34-5). In particular, Butler's affidavit sets forth (1) the steps hetook in performing his April 2020 in-person inspection of the Tumultys' roof; (2) the origin of the three-second wind speed contour map reproduced in both of his reports; (3) his opinion that newly-constructed roofs are less likely to falter in hurricane winds than older roofs because of recent, more stringent design standards; and (4) his reliance on Florida Building Code TAS 102-95 in documenting that the Tumultys' roof tiles exceeded two inches in a "hand-lift" examination, indicating the tiles would not survive high wind speeds in future storm events. Id. EIC moves to strike Butler's affidavit (Doc. 35), and SFR opposes that request (Doc. 40). These matters are now ripe for the Court's resolution.

II.

A.

The Court commences its analysis with EIC's motion to strike Butler's recent affidavit. In support of that motion, EIC argues that Butler's affidavit "is nothing more than [an] improper and untimely means of supplementing [his earlier] expert reports" in violation of Federal Rule of Civil Procedure 26 and the Court's CMSO, and is thus subject to exclusion under Federal Rule of Civil Procedure 37. (Doc. 35). SFR counters that Butler's affidavit does not contain any new information and, even if it does, it should not be struck because SFR's failure to disclose that evidence in a timely manner was substantially justified and/or harmless. (Doc. 40). After careful review, the Court finds that SFR has the better argument.

As part of the discovery process, Rule 26 requires litigants to share certain information regarding their expert witnesses. See Prieto v. Malgor, 361 F.3d 1313, 1317 (11th Cir. 2004) (citing Fed. R. Civ. P. 26(a)(2)(B)). The purpose of such expert disclosures is "to provide opposing parties [a] reasonable opportunity to prepare for effective cross[-]examination and [to] arrange for expert testimony from other witnesses." Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (internal quotation marks and citation omitted).

Under Rule 26(a)(2), the scope of a party's expert disclosure turns on whether the expert witness is one who is "retained or specially employed to provide expert testimony . . . or one whose duties as [an] employee regularly involve giving testimony." Fed. R. Civ. P. 26(a)(2)(B); see also Anderson v. Mascara, 347 F. Supp. 3d 1163, 1181 (S.D. Fla. 2018). If an expert witness fits either of these descriptions, Rule 26(a)(2)(B) directs the party to produce a detailed written report regarding the expert's anticipated testimony. Fed. R. Civ. P. 26(a)(2)(B); see also In re Disposable Contact Lens Antitrust Litig., 329 F.R.D. 336, 382 (M.D. Fla. 2018). That written report "must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications,...