Appeal from the Twenty-Second Judicial District Court In and
for the Parish of St. Tammany State of Louisiana No.
2014-15186 Div. "H" The Honorable Allison H.
Penzato, Judge Presiding
C. Betzer Attorneys for Plaintiffs/Appellants Michelle V.
Schmidt Melvin and Anjeanette Adolph Metairie, LA
W. Hailey, III Attorneys for Defendant/Appellee Evan J.
Bergeron Lighthouse Property Insurance New Orleans, LA
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
plaintiffs, Melvin and Anjeanette Adolph, appeal a motion for
summary judgment granted in favor of the defendant,
Lighthouse Property Insurance Corporation, dismissing their
claim with prejudice. The plaintiffs also appeal the trial
court's judgment granting Lighthouse's motion to
strike the affidavit and appendices of the plaintiffs'
expert from the record. For the following reasons, the
judgment of the trial court is reversed in part, vacated in
part, and remanded for further proceedings.
AND PROCEDURAL HISTORY
October or November of 2012, the plaintiffs noticed a leaking
toilet in the hallway bathroom of their home. Mr. Adolph
contacted a plumber who repaired the toilet by replacing the
flange and wax ring on the toilet. In February of 2013, Mr.
Adolph noticed an odor in the bedroom across from the hallway
bathroom and discovered that the odor was coming from the
closet in the bedroom. Mr. Adolph contacted DOW Disaster
Restoration, a business providing restoration services for
water and mold related issues. On February 27, 2013, Scott
Dowdy, owner and mitigation specialist with DOW, inspected
the plaintiffs' home and rendered a proposal for water
February 28, 2013, the plaintiffs made a claim to their
insurance company, Lighthouse Property Insurance Corporation,
for the damage allegedly sustained to their home as a result
of the leaking toliet. On March 8, 2013, Lighthouse sent an
adjuster to the plaintiffs' home to assess the damage.
Upon inspection, the adjuster found no evidence of a toilet
leak in the plaintiffs' home because all of the laminate
flooring where the leak had allegedly occurred had been
removed by Mr. Adolph. The adjuster conducted a moisture test
and found that all of the remaining laminate flooring in the
plaintiffs' home had an elevated moisture level between
the floor and the foundation of the home. The adjuster
concluded that the damage to the plaintiffs' home was
caused by "the foundation [of the home] ... sweating
excessively, thereby causing moisture to seep through the
foundation and lodge beneath the floor."
April 4, 2013, Lighthouse hired an engineer to inspect the
plaintiffs' home. The engineer found that the floors of
the plaintiffs' home were not level and concluded that a
leaking toilet in the hallway bathroom could not have caused
the excess moisture or water damage to the nearest bedroom
because the bedroom where the plaintiffs reported the water
damage was located upslope while the bathroom with the
alleged toilet leak was located at a downslope. Thereafter,
Lighthouse denied the plaintiffs coverage.
November 25, 2014, the plaintiffs filed a petition for
damages against Lighthouse alleging that the leaking toilet
in their home caused severe mold and fungi growth rendering
the floor in their home useless and necessitating
replacement. Lighthouse filed an answer contending that the
plaintiffs' claim fell outside the scope of coverage and
that they were not entitled to compensation.
April 6, 2016, Lighthouse filed a motion for summary
judgmentalleging that the plaintiffs' claim was
not covered under their Lighthouse policy and that the
alleged damages could not have been caused by a leaking
toilet. On May 31, 2016, Mr. Dowdy re-inspected the
plaintiffs' home and performed an elevation survey.
on June 8, 2016, the plaintiffs filed a memorandum in
opposition to Lighthouses' motion for summary judgment
arguing that Lighthouse did not make an appropriate effort to
investigate the facts and circumstances surrounding the
plaintiffs' claim because its experts did not make a
reasonable effort to ascertain a full investigation of the
entire area of damage. The plaintiffs also submitted the
affidavit, curriculum vitae, and report of Mr. Dowdy. The
curriculum vitae of Mr. Dowdy stated in part that he
completed over 300 water intrusion and mitigation projects.
In his affidavit, Mr. Dowdy determined that while the floors
were not level in the plaintiffs' home, "a leaking
toilet in the bathroom more likely than not caused excess
moisture or water damage to the nearest bedroom and flooring
of the [plaintiffs'] house."
20, 2016, Lighthouse fax-filed its reply memorandum in
support of its motion for summary judgment,  which
incorporated a motion to strike the affidavit and report of
the plaintiffs' expert, Mr. Dowdy. (The original of that
faxed filing was entered into the record on June 24,
2016.) The motion stated that Mr. Dowdy was not
qualified to offer an opinion in the matter because he had no
experience, training, or specialized knowledge in the fields
of engineering, fluid mechanics, hydrodynamics, water flow,
topography, geomatics, or any similar scientific field.
23, 2016, the trial court held a hearing on Lighthouses'
motion for summary judgment and motion to strike. Following
arguments from both parties, the trial court granted
Lighthouses' motion to strike, finding that Mr. Dowdy was
not competent to testify as to the opinion in his report. The
plaintiffs' counsel objected to Lighthouse's motion
to strike. The trial court noted the objection for the
record. The trial court then heard arguments from the parties
on Lighthouses' motion for summary judgment. The trial
court granted Lighthouses' motion for summary judgment,
finding that there were no genuine issues of material fact
and that Lighthouse was entitled to summary judgment as a
matter of law. On July 11, 2016, the trial court signed a
judgment in accordance with its oral ruling, granting
Lighthouses' motion for summary judgment and striking the
affidavit of the plaintiffs' expert, Mr. Dowdy, and
dismissing with prejudice the plaintiffs' claim. The
plaintiffs now appeal.
their first assignment of error, the plaintiffs argue that
the trial court abused its discretion in granting
Lighthouses' motion to strike the affidavit and report of
the plaintiffs' expert, Mr. Dowdy, because he was
unqualified. The plaintiffs further argue that the hearing on
Lighthouses' motion to strike was their first and only
opportunity to argue that Mr. ...