Adolph v. Lighthouse Property Insurance Corp.

227 So. 3d 316, 2016 La.App. 1 Cir. 1275, 2017 La. App. LEXIS 1597, 2017 WL 3994155
CourtLouisiana Court of Appeal
DecidedSeptember 8, 2017
Docket2016 CA 1275
StatusPublished
Cited by24 cases

This text of 227 So. 3d 316 (Adolph v. Lighthouse Property Insurance Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adolph v. Lighthouse Property Insurance Corp., 227 So. 3d 316, 2016 La.App. 1 Cir. 1275, 2017 La. App. LEXIS 1597, 2017 WL 3994155 (La. Ct. App. 2017).

Opinions

|2The 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'toilet. 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 léak 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 |slevel 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. [318]*318The 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 judgment2 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 [319]*319was 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, geo-matics, 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. < Dowdy was qualified to render an opinion regarding the various elevation levels in the plaintiffs’ home.

Lighthouse counters that the trial court complied with La. C.C.P. arts. 966 and 967 when granting its motion' to strike because the trial court held a hearing and determined that Mr. Dowdy’s qualifications did not show that he was competent to testify as to the complex and technical opinion in his affidavit. ^Moreover, Lighthouse argues that the motion to strike was properly granted by the trial court because the plaintiffs failed to request a continuance or request the option to supplement, the record. See La. C.C.P. arts. 967(A) and 1601.

This case raises the issue as to whether the “Motion to Strike” contained in Lighthouses’ reply memorandum is the proper pleading to challenge the qualifications of the plaintiffs’ expert, Mr. Dowdy. Under La. C.C.P. art. 966(D)(2), “[a]ny objection to a document shall be raised in a timely filed opposition or reply memorandum.” Comment (k) of La. C.C.P. art. 966 states that “[966(D)(2)'] changes prior law by specifically removing the motion to strike as a means of raising an objection to a document offered by an adverse party in support of or in opposition to a motion for summary judgment and [this [320]*320article] does not allow a party to file that motion.”5

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Cite This Page — Counsel Stack

Bluebook (online)
227 So. 3d 316, 2016 La.App. 1 Cir. 1275, 2017 La. App. LEXIS 1597, 2017 WL 3994155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adolph-v-lighthouse-property-insurance-corp-lactapp-2017.