Woodrum v. Ga. Farm Bureau Mut. Ins. Co.

347 Ga.App. 89

815 S.E.2d 650

WOODRUM et al.

v.GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

A18A0596

Court of Appeals of Georgia.

June 27, 2018

Reconsideration Denied July 17, 2018

Certiorari Denied April 15, 2019

R. Stephen Sims, Springfield, for Appellants.

James Bates Brannan Groover, Duke R. Groover, Lee M. Gillis, Jr., for Appellee

McFadden, Presiding Judge.

The dispositive issues in this appeal are whether the trial court abused its discretion in excluding a witness' opinion testimony as to diminution in value of certain property and in then granting summary judgment based on an absence of any evidence of diminution in value. While the court did not abuse its discretion in finding that the witness could not offer expert opinion testimony, the court did abuse its discretion in finding that the witness could not offer his opinion of value as a lay witness. So we reverse both the order excluding such lay witness opinion testimony and the grant of summary judgment.

On appeal from the grant of summary judgment, the appellate court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Bank of America, N. A. v. Cuneo , 332 Ga. App. 73, 74, 770 S.E.2d 48 (2015) (citation and punctuation omitted). So viewed, the evidence shows that during a thunderstorm on July 5, 2012, a large tree fell onto the roof of William and Kathy Woodrum's house, causing significant damage to the house. The next day, the Woodrums reported the damage to their insurer, Georgia Farm Bureau Mutual Insurance Company. On November 7, 2012, after the Woodrums and Georgia Farm Bureau were unable to agree upon the amount of the loss, the Woodrums invoked the appraisal clause of the insurance policy. That clause provided:

If you[, the Woodrums,] and we[, Georgia Farm Bureau,] fail to agree on the amount of loss, either may demand in writing an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the residence premises is located. The appraisers will separately set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.

(Punctuation omitted.) On February 5, 2013, pursuant to the appraisal process, an award was issued and agreed to by the Woodrums' appraiser and the appointed umpire. Georgia Farm Bureau made payment of the award to the Woodrums.

The Woodrums subsequently brought suit against Georgia Farm Bureau, seeking compensation for diminution in value. The complaint included counts for breach of contract and breach of an implied duty of good faith and fair dealing. The breach of contract claim was based on allegations that the fallen tree had caused a crack in the slab foundation of the house, that the value of the house was diminished by the cracked foundation, that such diminished value was a covered loss under the policy that was not included in the appraisal award, and that Georgia Farm Bureau had failed to pay for that diminished value. In support of the claim, the Woodrums filed the affidavit of George Hall, the contractor who had repaired the Woodrums' house and who opined that the value of the house was diminished by the foundation being cracked. During a subsequent deposition, Hall gave his opinion that the house had lost 25 percent of its value due to the cracked foundation.

Georgia Farm Bureau filed a motion to exclude Hall as an expert witness and a motion for summary judgment. On March 24, 2017, the trial court entered an order granting the motion to exclude Hall's testimony as an expert regarding the diminution in value of the Woodrums' property. In that same order, the trial court also excluded Hall's testimony as a lay witness giving an opinion as to value. On that same date, the trial court issued a separate order granting the insurance company's motion for summary judgment on both of the Woodrums' claims. As to the breach of contract claim, the court found that without Hall's excluded testimony, there was no other evidence that the diminution in value of the property was not included in the amount of loss determined under the appraisal clause. As to the claim for breach of implied duty of good faith and fair dealing, the court found that it could not be maintained because there is no such independent cause of action apart from the breach of contract claim, which had already been disposed of on summary judgment. The Woodrums appeal.

1. Exclusion of Hall's testimony.

The Woodrums challenge the trial court's exclusion of Hall's expert testimony as to value and his lay witness opinion testimony on that issue. While the court did not err in excluding his testimony as an expert, the court did err in excluding his testimony as a lay witness.

At the outset, we note that the Woodrums were not required to present expert testimony as to value. As we have explained in a different context involving property valuation—confirmation of a nonjudicial foreclosure sale—the party seeking such confirmation

is under no obligation to present an expert appraisal of the property. Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer but may testify as to its value if he has had an opportunity for forming an opinion. Of course, the opinions of experts as to the true market value of property are admissible , and provide sufficient evidence of value to support a trial court's order of confirmation.

Harper v. Ameris Bank , 326 Ga. App. 67, 69-70 (2), 755 S.E.2d 872 (2014) (citation and punctuation omitted; emphasis supplied).

(a) Expert testimony.

OCGA § 24-7-702 (b) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

In determining the admissibility of proposed expert testimony, "the trial court must consider whether the methodology by which the expert reaches his conclusions is sufficiently reliable." Scapa Dryer Fabrics v. Knight , 299 Ga. 286, 289, 788 S.E.2d 421 (2016) (citation and punctuation omitted).

In this case, the trial court found that Hall's estimation of the diminution in value of the subject property was "not based on any market comparisons or related methodology" and that the Woodrums had "failed to establish that the methodology by which Hall reached his conclusions was sufficiently reliable" to qualify him as an expert witness. See Vineyard Indus. v. Bailey , 343 Ga. App. 517, 522 (2) (b), 806 S.E.2d 898 (2017) (the party seeking to rely on the expert bears the burden of establishing that his testimony is reliable within the meaning of the statute). Hall's affidavit did not describe a methodology by which he reached his conclusions and at his deposition, when asked to explain how he determined the amount of the value diminution, he said that he had made the determination based on his experience. Under these circumstances, we find that the trial court has not "abused its discretion in excluding [Hall from giving expert] testimony on this issue." Id. at 523 (2) (b), 806 S.E.2d 898. So that portion of the trial court's order is affirmed.

(b) Lay witness opinion testimony.

OCGA § 24-7-701, which governs lay witness opinion testimony, provides:

(a) If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24-7-702.

(b) Direct testimony as to market value is in the nature of opinion evidence. A witness need not be an expert or dealer in an article or property to testify as to its value if he or she has had an opportunity to form a reasoned opinion.

Thus, in this case, "the issue [is] whether the record demonstrate[s] that [Hall] had an opportunity to form a [reasoned] opinion as to...