Clena Investments, Inc. v. XL Specialty Insurance

280 F.R.D. 653, 2012 WL 266422, 2012 U.S. Dist. LEXIS 10626
CourtDistrict Court, S.D. Florida
DecidedJanuary 30, 2012
DocketNo. 10-62028
StatusPublished
Cited by78 cases

This text of 280 F.R.D. 653 (Clena Investments, Inc. v. XL Specialty Insurance) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clena Investments, Inc. v. XL Specialty Insurance, 280 F.R.D. 653, 2012 WL 266422, 2012 U.S. Dist. LEXIS 10626 (S.D. Fla. 2012).

Opinion

ORDER

ROBIN S. ROSENBAUM, United States Magistrate Judge.

This matter comes before the Court on Defendant’s Amended Motion to Strike Plaintiffs Expert [D.E. 54], upon referral by the Honorable Robert N. Scola, Jr., for disposition [D.E. 68]. The Court has carefully reviewed the pending Motion, all filings in support thereof and in opposition thereto, and the record in this case, and has held an evidentiary hearing on the Motion on January 27, 2012. Based on its consideration of these materials and being otherwise duly advised in the premises, the Court now grants in part and denies in part Defendant’s Amended Motion to Strike Plaintiffs Expert, as set forth below.

I. Background

This case arises out of an insurance dispute between Plaintiff Ciena Investments, Inc. (“Ciena”), and Defendant XL Specialty Insurance Co. (“XL”). In the Complaint, Ciena alleges that on October 24, 2005, it sustained damages to a property that was insured by XL (the “Property”). See D.E. 1-1 at 3-4. Although the Complaint itself does not specifically identify the source of the alleged damage, Ciena’s later filings in the case attribute the damages to Hurricane Wilma. According to the Complaint, XL improperly denied Ciena’s insurance claim for damages.

Therefore, Ciena filed this action in the Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida. See D.E. 1-1. XL subsequently removed the case, invoking diversity jurisdiction under 28 U.S.C. § 1332. See D.E. 1.

During the course of discovery, at XL’s request, EFI Global (“EFI”) conducted an investigation into the origins and causes of damages to the Property. See D.E. 57-1. In its report, EFI explained that Richard N. Harb, P.E.,1 had “conducted an origin and cause damage investigation” at the Property. Id. at 1. Based on Harb’s investigation, EFI opined that only roughly ten square feet of the roof displayed indications consistent with wind damage, constituting “about 0.1 percent of the damage____” Id. at 8. The bulk of the damage, which pertained to approximately fifty percent of the roof, was consistent with “normal long term deterioration caused by wear and tear.” Id. at 1. EFI estimated the roof to be the original roof installed in 1984. See id. at 1, 5. EFI also attributed some of the damage to “poor roof installation,” “settlement,” and “expansion and contraction damage caused by temperature differentials.” See id. at 7-8. Ultimately, EFI concluded that the Property’s roof was “expired ... [and that it had] exceeded its useful life expectancy.” Id. at 8.

EFI explained that its report and conclusions were “based on visual inspection of the damages at the ... [Property]. No destructive investigation was performed. No mold investigation was performed. The construction drawings were not reviewed ____ The observations and recommendations [were] based only on the visible portions of the structure. No repair receipts were made available to EFI for review.” Id. at 2. A review of the report also shows that EFI considered certain Florida Building Code requirements, meteorological information obtained from the websites of the National Weather Service Forecast Office (“NWS”) and the National Oceanic and Atmospheric Administration (“NOAA”), and information from the National Roofing Contractors Association (“NRCA”). EFI’s report itself appears to set forth all information that EFI obtained from these sources and relied upon in its report.

In response to EFI’s report, Ciena engaged Vandin Calitu to review and opine on EFI’s report and on the probable cause of [657]*657the damage to the Property. See D.E. 50-1 at 52:16-:25.2 He also looked at and remarked on repair-cost estimates that were submitted to him for review. Id.

Calitu, a professional engineer licensed in Florida, majored in building-construction engineering and graduated from Bucharest Technical University with his Bachelor-of-Science degree. D.E. 50-2 at 14.3 He later earned his Master-of-Science degree in civil engineering from the University of Miami. Id. Since 1997, Calitu has worked as an engineer, serving as a project manager on various design and construction projects since 1997. See id. at 14-15. In this capacity, Calitu must account for potential hurricane-force wind impact when building a construction project. He testified during the evidentiary hearing on January 27, 2012, that he ensures building compliance with the Hurricane Code requirements, designed to allow buildings to withstand Category V hurricane winds. In addition to working as a project manager for Malcolm Pirnie (Calitu’s current employer), CH2M Hill, CDM, and an engineering firm in Romania at different times, for the past approximately five years, Calitu has also engaged in work, as a litigation expert and as a consultant outside of his other employment. See D.E. 50-1 at 6:16-9:5; 29:3-:ll.

As Calitu describes his work experience, he has dealt with all disciplines of engineering and has developed a particular expertise in the area of heating, ventilation, and plumbing and in geotechnical engineering. Id. at 21:3 — :10; 21:22-22:17; 26:l-:5. According to Calitu, he “work[s] a lot with all sorts of construction companies down here in South Florida, ... general contractors, roofers, ..., pretty much all disciplines, piping.” Id. at 21:3-:10. “[0]n the side,” Calitu has also conducted “roof investigations.” Id. at 39:16-40:2.

In working on this case, Calitu reviewed EFI’s report, including the meteorological and other information contained therein; a cost estimate and amended cost estimate for restoration, service, and remodeling prepared by Freedom Adjusters, LLC; and photographs with moisture readings taken by Ciena’s public adjuster, Ivan Maldonado, in February 2010. D.E. 60-2 at 1. In addition, Calitu visited the Property in July 2011, went up on the roof and visually inspected and photographed it, and spoke with two tenants of the Property who had claimed that Hurricane Wilma left “a bunch of debris ... on the roof[,] ... and there was a tree that fell on the roof [in connection with Hurricane Wilma].” D.E. 50-1 at 42:10-43:1; 44:4-:9; 48:18-:22; 49:5-52:7. These tenants also took Calitu inside the Property and showed him water damage. Id. at 50:25-51:8.

Based on his investigation, Calitu opined, in relevant part,

[T]he existing damages of the roof and, in turn, the interior leaks, are likely due to high winds activity in recent years[J Hurricane Wilma likely caused the existing roof damages and interior leaks at the Property. The effect of such winds on the parapet wall
[658]*658water and air infiltration has been undermining the membrane, metal deck and overall roof structure.
At this time, without any documentation, the exact extent of destruction on this roof immediately after a category 2 or up hurricane and the ongoing deterioration thereafter would be quite impossible to estimate.

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Bluebook (online)
280 F.R.D. 653, 2012 WL 266422, 2012 U.S. Dist. LEXIS 10626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clena-investments-inc-v-xl-specialty-insurance-flsd-2012.