Pyramid Technologies, Inc. v. Hartford Casualty Insurance Co

752 F.3d 807, 94 Fed. R. Serv. 728, 2014 U.S. App. LEXIS 9210, 2014 WL 2086078
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 19, 2014
Docket11-56304
StatusPublished
Cited by97 cases

This text of 752 F.3d 807 (Pyramid Technologies, Inc. v. Hartford Casualty Insurance Co) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pyramid Technologies, Inc. v. Hartford Casualty Insurance Co, 752 F.3d 807, 94 Fed. R. Serv. 728, 2014 U.S. App. LEXIS 9210, 2014 WL 2086078 (9th Cir. 2014).

Opinions

OPINION

SIMON, District Judge:

After a flood occurred in the warehouse of a business that purchased and resold electronic parts, a dispute arose between the business and its insurer. The insured sued, alleging express breach of contract and breach of the implied covenant of good faith. The insurer moved for summary judgment. Without holding a Dau-bert hearing,1 the district court excluded the insured’s expert witnesses and granted summary judgment to the insurer, finding insufficient evidence that the flood caused damage to the insured’s inventory. [811]*811Because the district court abused its discretion by not allowing a jury to resolve contested but otherwise admissible expert testimony, we reverse and remand for trial.

FACTS

Pyramid Technologies, Inc. (“Pyramid”) purchased an insurance policy (the “Policy”) from Hartford Casualty Insurance Company (“Hartford”). The Policy provides coverage limits of $1 million for building replacement costs, $5.5 million for business personal property replacement costs, and $3 million for lost business income and additional expenses due to the inteiTuption of business operations. To trigger coverage for building or business personal property replacement costs, the Policy requires damage to property or its direct physical loss.

Pyramid purchased and resold electronic parts, many of which were out-of-date or not state-of-the-art. It did not test the inventory unless required to do so by a customer or prospective customer. Pyramid stored its inventory on shelves in a warehouse that did not have air conditioning or humidity control. Pyramid had approximately 52 million items in its warehouse at the time of the flood.

In the morning hours of August 11, 2005, Pyramid employees arrived at work to find the warehouse and certain other building locations flooded with one to two inches of water. Although the flood water did not reach the shelves on which inventory items were located, several employees saw visible condensation on packages in the lower three to four shelves. ServPro, a professional cleanup company, performed cleanup operations from August 11 through August 16, 2005.

After discovering the flood, Pyramid was concerned about the humidity level in the warehouse and the condensation found on its packages. Pyramid asked Hartford to test the inventory. Hartford’s expert, Peter Helms from Belfor USA Technical Services, visited the site after cleanup and, relying on humidity tests conducted after most of the water had been removed and drying equipment had been in place for more than 24 hours, determined that the humidity did not reach a level that could have caused damage to any of the inventory. Hartford refused to test the inventory, which would have cost more than $13 million to test every item. Hartford based its decision largely on Helms’ conclusion that the inventory was not damaged by the flood.

While Hartford was visiting the site after the flood, a potential Pyramid customer, WMS Gaming, Inc. (“WMS”), was conducting a quality control site visit before approving Pyramid as a parts supplier. The Hartford representative told this potential customer that the water intrusion was “no big deal” and that Hartford would not test the parts. The customer replied that the flood was a “big deal” to WMS. Shortly thereafter, WMS declined to approve Pyramid as a parts supplier.

One month after the flood, Pyramid hired Allied Public Adjusters, Inc. to assist in pursuing an insurance claim. Pyramid also hired its own expert, David Spiegel, to determine what the humidity levels were at the time of the water intrusion. Spiegel opined that the humidity level in the warehouse rose to more than 90% and that the conditions caused by the flood exceeded the protection levels of the moisture-proof packaging. During routine inventory checks after the flood, Pyramid employees quarantined more than 250,000 items, looking for visible signs of corrosion, tarnish, or discoloration. In August 2007, Hartford finally agreed to conduct limited test[812]*812ing of a small subset of parts identified by Pyramid as being damaged.

Hartford retained Dr. Arum Kumar of SEAL Laboratories to conduct tests on 374 items out of Pyramid’s inventory. These parts were selected by Pyramid as exhibiting signs of water damage. Dr. Kumar determined that 147 of those items exhibited corrosion, tarnish, or discoloration. Dr. Kumar conducted additional tests on those 147 items. He found that two parts failed the additional testing, and they were deemed unsuitable for commercial applications. Dr. Kumar stated that corrosion, tarnish, and discoloration are always caused by moisture, but he concluded that the August 11, 2005 flood was not the cause of the corrosion damage to the parts he examined.

Pyramid hired two additional experts, Del Mortenson and Ken Pytlewski, to evaluate the validity of Dr. Kumar’s report. Mortenson questioned Dr. Kumar’s opinion on the grounds that Dr. Kumar used “military” standards of suitability instead of “commercial” standards. Pytlewski challenged other opinions of Dr. Kumar’s, including his opinions that any corrosion caused by the flood would necessarily have been uniform and that visible corrosion is not a failure criteria under military standards. Pytlewski also noted the internal inconsistency in Dr. Kumar’s report between his statement that the cause of the moisture-related corrosion cannot be determined and his conclusion that the flood was not the cause of any moisture-related damage. Pytlewski testified at a deposition that in his opinion, some of the corrosion to Pyramid’s inventory occurred as a result of the high humidity caused by the August 11, 2005 flood.

By May 2010, approximately 17 million of Pyramid’s 52 million parts in inventory at the time of the flood had been sold, and approximately 35 million parts remained in Pyramid’s inventory. In October 2010, Pyramid sold most of its remaining inventory at a distress sale price of $125,000.

PROCEDURAL BACKGROUND

Pyramid filed this civil action in California state court. Hartford removed the lawsuit to federal court. On March 21, 2011, Hartford moved for summary judgment. In opposition to Hartford’s motion, Pyramid offered the expert reports of Spiegel, Mortenson, and Pytlewski, among other evidence. In reply to Pyramid’s opposition, Hartford argued that the expert reports of Spiegel, Mortenson, and Pytlew-ski, and much of the testimony of Tony Mavusi, the president of Pyramid, was inadmissible. The district court did not hold a Daubert hearing.

The district court also did not hold oral argument on Hartford’s motion for summary judgment. Instead, on June 1, 2011, the district court granted summary judgment in favor of Hartford, sustained many of Hartford’s objections to the testimony of Mavusi, and excluded the expert reports of Spiegel, Mortenson, and Pytlewski. The district court excluded the reports of Mortenson and Pytlewski as being “illegible,” and the court excluded the Spiegel report on the grounds that Spiegel was not a qualified expert and that his report was not based on sufficient facts or data and was not the product of reliable principles and methods.

Pyramid moved for reconsideration and submitted enlarged and more legible versions of the Mortenson and Pytlewski reports. The district court accepted the enlarged reports as sufficiently readable, but then excluded them as unreliable and not based on sufficient fact's or data.

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Bluebook (online)
752 F.3d 807, 94 Fed. R. Serv. 728, 2014 U.S. App. LEXIS 9210, 2014 WL 2086078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pyramid-technologies-inc-v-hartford-casualty-insurance-co-ca9-2014.