The magistrate recommended that insurer's motion for summary judgment be granted due to the insureds' expert's inability to present genuine issues of material fact. Walker v. Century Sur. Co., 2023 U.S. Dist. LEXIS 142408 (E.D. Texas July 17, 2023).
The insureds' property sustained damage from Hurricane Laura. Colonial Claims inspected the property for Century and reported that a portion of the roof was damaged by the hurricane. Century paid insureds $2,212,34. Van Fisher, an engineer with Envista Forensics, then inspected the interior of the property on Century's behalf. Fisher reported that there was some covered interior damage caused by a leak from a storm-created opening in the roof. However, Fisher further reported that there was other interior damage caused by existing water leaks not attributed to the hurricane and thus not covered by the policy. Century then paid the insureds an additional $485.05 based on Fisher's inspection.
The insureds sent to Century an estimate prepared by Nikki Seals of Damage Reports LLC, which reported approximately $291,376 of damage to the property. Van Fisher then re-inspected the property and reaffirmed the findings from his first inspection. He opined that one portion of the roof was damaged from the hurricane, and a different portion of the roof was also damaged, but not by the hurricane. Therefore, neither the portion of the roof not damaged by the hurricane nor the interior damage attributable to it was covered by the policy. The insured's representative, Eric Foshee, who observed Fisher's re-inspection, commented in an email on Fisher's opinions and concluded that the interior damage was directly associated with wind driven rain.
The insureds filed suit and Century moved for summary judgment. Century pointed to the reports from Fisher and Colonial Claims, which indicated that only a portion of the damage was covered by the policy and Century made payments for that damage. The insureds designated Nikki Seals as an expert and contended she would testify regarding "cost and causation, scope of estimated costs for repair and/or replacement of the damage."
Century argued that Seals' report was not competent summary judgment evidence. The report was undated, did not reference wind or hurricane, and had no narratives. The magistrate agreed. Seals' report was nothing more than a series of photographs and cost estimates for repairing various line items. This was not sufficient to carry the insureds' summary judgment burden of demonstrating a genuine issue of material fact. An estimate that merely described observed damage with no reference to the cause of that damage was not sufficient to carry the insureds' summary judgment burden.
Nor were the email comments for Foshee sufficient to carry the insureds' burden. Foshee's comments did not provide any support for the insureds' position that the property damage was attributable to a storm-created opening. Rather, Foshee's comments indicated the disputed damage was the result of water entering through an already-existing and not-storm created opening, namely the AC ducts.
Therefore, the insureds failed to demonstrate there was a genuine issue of material fact as to causation.
