The court denied the insurer's motion in limine seeking to dismiss the insureds' complaint due to the absence of expert testimony. Fabozzi v. Lexington Ins. Co., 2014 U.S. Dist. LEXIS 74069 (E.D. N.Y. May 30, 2014).
During the policy period, the insureds noticed their house had serious structural problems, including cracks in the walls and floors that were pitched toward the rear of the house. The insureds had to move from their house. When they submitted a claim, it was denied by Lexington because the losses were caused by "wear and tear, deterioration, earth movement, settlement, shrinking, bulging or expansion of the property leading to cracking of structural components."
The insureds sued. Lexington filed a motion in limine to preclude the testimony of the insureds' expert and to dismiss the complaint for inability to offer prima facie proof of a covered loss absent such expert testimony.
It was the insureds' burden to show the policy covered the loss, i.e., that the loss resulted from a covered peril. The court determined, however, that it was not necessary to have expert testimony to establish the cause of the collapse. There were some instances that the cause of a building's collapse could be so apparent that no special knowledge was required, and lay testimony could be relied upon.
Liberty also contended that the insureds could not establish the damages without expert testimony. The insureds, however, believed that they had suffered a total loss, and that they could prove the value of their loss without expert testimony. The court was not willing to hold, as a matter of law, that the prima facie damages required expert testimony.
Accordingly, Liberty's motion in limine seeking dismissal of the complaint was denied.
