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Adolph v. Lighthouse Property Insurance Corp.

Court of Appeals of Louisiana, First Circuit

September 8, 2017

MELVIN AND ANJEANETTE ADOLPH
v.
LIGHTHOUSE PROPERTY INSURANCE CORPORATION

         On 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

          Bruce C. Betzer Attorneys for Plaintiffs/Appellants Michelle V. Schmidt Melvin and Anjeanette Adolph Metairie, LA

          James W. Hailey, III Attorneys for Defendant/Appellee Evan J. Bergeron Lighthouse Property Insurance New Orleans, LA Corporation

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

          The 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.

         FACTUAL AND PROCEDURAL HISTORY

         In 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 mitigation.[1]

         On 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."

         On 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.

         On 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.

         On April 6, 2016, Lighthouse filed a motion for summary judgment[2]alleging 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.

         Thereafter, 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."

         On June 20, 2016, Lighthouse fax-filed its reply memorandum in support of its motion for summary judgment, [3] 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.)[4] 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.

         On June 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.

         DISCUSSION

         In 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. ...


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