Friedberg v. Chubb & Son, Inc.

832 F. Supp. 2d 1049, 2011 WL 5078777, 2011 U.S. Dist. LEXIS 123582
CourtDistrict Court, D. Minnesota
DecidedOctober 25, 2011
DocketCivil No. 08-6476(DSD/JJK)
StatusPublished
Cited by6 cases

This text of 832 F. Supp. 2d 1049 (Friedberg v. Chubb & Son, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedberg v. Chubb & Son, Inc., 832 F. Supp. 2d 1049, 2011 WL 5078777, 2011 U.S. Dist. LEXIS 123582 (mnd 2011).

Opinion

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon cross motions for summary judgment by defendants Chubb & Son, Inc. and Chubb Indemnity Insurance Company (collectively, Chubb) and plaintiffs Joseph and Carolyn Friedberg; motions to exclude expert witnesses by Chubb and the Friedbergs1; and the motion to strike declarations by Chubb.2 Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants defendants’ motion for summary judgment.

BACKGROUND

This insurance coverage dispute arises out of the Friedbergs’ 2001 purchase of Masterpiece Policy 12281532-04 (the Policy) from Chubb. The Policy covers the Friedbergs’ home in Wayzata, Minnesota, and provides “coverage against all risk of [1053]*1053physical loss to your house or other property covered under this part of your Masterpiece Policy, unless stated otherwise or an exclusion applies.” Wolter Aff. Ex. 4, at CI00169. The Policy contains several exclusions, including:

Gradual or sudden loss (Rot Exclusion). We do not provide coverage for the presence of wear and tear, gradual deterioration, rust, bacteria, corrosion, dry or wet rot, or warping, however caused, or any loss caused by wear and tear, gradual deterioration, rust, bacteria, corrosion, dry or wet rot, or warping. We also do not cover any loss caused by inherent vice, latent defect or mechanical breakdown. But we do insure ensuing covered loss unless another exclusion applies (Ensuing Loss Provision).
Fungi and Mold (Mold Exclusion). We do not provide coverage for the presence of mold, however caused, or any loss caused by mold, other than as provided under the Extra Coverage, [m]old remediation expenses. But we do cover mold resulting from fire or lightning unless another exclusion applies. “Mold” means fungi, mold, mold spores, mycotoxins, and the scents and other byproducts of any of these.
Faulty planning, construction or maintenance (Construction Defects Exclusion). We do not cover any loss caused by the faulty acts, errors or omissions of you or any other person in planning, construction or maintenance. It does not matter whether the faulty acts, errors or omissions take place on or off the insured property. But we do insure ensuing covered loss unless another exclusion applies. “Planning” includes zoning, placing, surveying, designing, compacting, setting specifications, developing property and establishing building codes or construction standards. “Construction” includes materials, workmanship, and parts or equipment used for construction or repair.

Id. at CI00176-78.

The Friedbergs’ home was constructed with an exterior insulation and finish system (EIFS) manufactured by nonparty Dryvit Systems, Inc (Dryvit). In June 2002, the Friedbergs received notice of a proposed settlement in a class-action suit concerning water damage associated with Dryvit EIFSs. See Bland Decl. Ex. C, ECF No. 78. On November 20, 2003, the Friedbergs signed and returned the “Claimant Information” form to Dryvit. See id. Ex. D. As part of the claims process, an inspector surveyed the Fried-bergs’ home. See id. Ex. E. The inspector recommended $9,321.75 in remedial work, of which $3,728.70 was to be reimbursed by Dryvit as part of the class-action settlement. Id. The Friedbergs did not perform the proposed remedial work. See J. Friedberg Dep. 128:4-129:12.

In December 2006, the Friedbergs hired nonparty Donnelly Stucco to repair a small hole in the exterior of their home. Best-land Decl. Ex. A, at CI00023. Donnelly Stucco discovered extensive water damage. Id. at CI00032. The Friedbergs notified Chubb on January 22, 2007. Id. at CI00031. On January 31, 2007, Chubb adjuster Scott Bestland and expert Larry Gubbe inspected the Friedbergs’ home. Sample cuts into the home’s exterior revealed water intrusion causing rot, mold and damage to the home’s wood framing and insulation. See id. Ex. B at CI00244-78. Bestland’s “Inspection Report” noted the failure of the EIFS: “[I]t appears that Dryvit has failed due to no vertical ‘control /expansion’ joints that result in Dryvit cracking because it cannot expand or contract. Once the Dryvit cracks, moisture can get behind resulting in deterioration within the exterior [1054]*1054walls____ Also, evidence of poor design and workmanship.” Id. Ex. A, at CI00023.

Gubbe inspected the Friedbergs’ home again in April 2007, after the Dryvit cladding had been removed. In a July 23, 2007, report, Gubbe detailed the results of the January and April inspections, noting water damage to the home’s architectural beams, roof deck, and sheathing and framing members. Gubbe Decl. Ex. A at CI00073, CI00075-76. Gubbe concluded that the damage to the architectural beams and underlying walls was “primarily caused by the failure to install control joints or otherwise to provide for differential movement which caused the beams to develop cracks through which water could penetrate the EIFS cladding.” Id. Ex. A at CI00078. Further, Gubbe found that “the damage attributable to inadequate design and construction of the beams ... has been cumulatively occurring over a period of several years” and was not “attributable to a single event such as a storm or other climatic phenomena.” Id.

The Friedbergs’ consultant M. Steven Doggett inspected the residence in June 2010 and reviewed roughly 1600 photographs of the damage. See Doggett Dep. 35:16-36:2, 44:1-6. Doggett testified that design and construction defects allowed external water intrusion. Id. at 86:16-87:19. The external intrusion accounted for eighty percent of the damage to the home. Id. Ex. 2, at 3. Doggett concluded that “[t]he primary mechanisms for moisture intrusion included unsealed joints and cracks at wall penetrations, window cladding, roof penetrations, roof membrane terminations, parapet cap flashing, wall cladding, and sealent joints.” Id. Doggett explained that improper roof repair was the primary cause of the damage on the upper portions of the residence and that the mechanism of water intrusion in lower parts of the residence was due to the roof and “[ejntry through terminations of the EIFS; entry at rough openings of windows and other wall penetrations; [and] flashing details.” Id. at 88:13-19.

On August 7, 2007, Chubb denied the Friedbergs’ claim on the basis that the damage sustained was excluded under the Policy. Bestland Decl. Ex. D, at CI00081. According to Chubb, based on the inspections, “it was evident that water has intruded via the exterior roof and wall for sometime, resulting in gradual deterioration.” Id.

On December 3, 2008, the Friedbergs filed a complaint in state court, seeking a declaration that the Policy covers the damage to their home and asserting breach of contract and estoppel claims. Chubb timely removed. The Friedbergs moved for partial summary judgment before the parties engaged in discovery. See ECF No. 81, at 1. The court denied the motion, because it was unclear whether the evidence might show that an excluded peril was the overriding cause of the loss. See ECF No. 48. Following discovery, the parties now make cross motions for summary judgment and to exclude certain expert testimony.

DISCUSSION

I. Expert Testimony

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Bluebook (online)
832 F. Supp. 2d 1049, 2011 WL 5078777, 2011 U.S. Dist. LEXIS 123582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedberg-v-chubb-son-inc-mnd-2011.