Gold Creek Condominium-Phase I Association of Apartment Owners v. State Farm Fire and Casualty Company

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA GOLD CREEK CONDOMINIUM-PHASE CASE NO. 20-5690 RJB OWNERS, a Washington non-profit ORDER GRANTING, IN PART, corporation, DEFENDANTS’ MOTIONS TO EXCLUDE TESTIMONY OF Plaintiff, KEITH SOLTNER v. STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Connecticut company, THE AETNA CASUALTY AND SURETY COMPANY, a Connecticut Company; TRAVELERS CASUALTY AND SURETY COMPANY, a Connecticut Company; AETNA CASUALTY AND SURETY COMPANY OF ILLINOIS, a Connecticut Company; TRAVERLERS OF AMERICA, a Connecticut company; and DOE INSURANCE COMPANIES 1- 10, Defendants. This matter comes before the Court on Travelers Defendants’ Motion to Exclude Testimony of Keith Soltner (Dkt. 63) as joined in by Defendant State Farm (Dkt. 65). The Court is familiar with all documents at issue. On June 14, 2022, Travelers Defendants’ Motion to Exclude the Testimony of Keith Soltner, joined by State Farm, (Dkts. 63 and 65) was denied, in part. Dkt. 95. The remaining

issues to be considered in that motion were set for a Daubert hearing, which was held on June 23, 2022. Dkt. 100. At the conclusion of that hearing, the Court orally ruled, denying the rest of the motions. That ruling is hereby dissolved, and is of no force or effect. On June 27, 2022, the Court ordered a supplemental Daubert hearing on the issues to be considered regarding the admissibility of Mr. Soltner’s testimony (Dkts. 63 and 65). Dkt. 103. On June 29, 2022, the Court conducted that supplemental hearing by Zoom, counsel were present, and Mr. Soltner testified further. Dkt. 108. At that hearing, Mr. Soltner was asked whether at the time of construction, the architects, designers, and builders anticipated water access within the building envelope. Mr. Soltner

responded: “Well, I was a registered architect in 1983. Before that I worked for several architectural firms. The standards back then were that the water would get in, but it would not cause a whole lot of damage to the sheathing if this exception was allowed. It was standard practice.” At his deposition, which was taken earlier, Mr. Soltner testified that, “[t]he rain that hit the building can't be identified as to exactly what day and what storm event. That's impossible to do. There is no weather data that can support any of that.” But then he added, “We can tell you that on a more-probable-than-not basis these type storms hit the building. We know it got hit with wind-driven rains because the damage is there.” At the June 29, 2022 hearing, the Court asked whether some rain does not cause a problem and Mr. Soltner said, “[c]orrect, some wouldn’t. There is no way to identify which is which.” Further, the Court asked, “I take it there's no way to determine when -- from the completion of the construction of the building, that you can identify when wind-driven rains started to become a loss or a damage to the building?” Mr. Soltner answered, “[N]o, there is no

way of determining that. On a more-probable-than-not basis I'm assuming the water entry occurred shortly after it was completed. But there isn't a way of determining when the actual damage occurred, other than the standard progression is it starts with water-stained paper.” On further consideration, and in light of the totality of the Soltner testimony, the motion (Dkts. 63 and 65) should be granted, in part, as to whether Mr. Soltner can testify to when the loss or damage from wind-driven rain at Gold Creek occurred. His testimony as to whether the loss occurred during the relevant policy periods is not consistent with the requirements of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), and Rules of Evidence 701 and 702. (The building was constructed in

1982. State Farm’s policy period was 1989 to 1990 and Travelers Defendants’ policy period was 1991 to 1996.) Testimony that the loss or damage occurred during the policy periods in this 40- year-old building is speculative and is based on assumptions not supported by the evidence or Mr. Soltner’s experience. That testimony should be excluded. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. Dated this 1st day of July, 2022. A

ROBERT J. BRYAN United States District Judge