Burgess v. Allstate Ins. Co., CIV.A.1:02-CV2188RWS.

• Decision Date: 08 December 2003
• Docket Number: No. CIV.A.1:02-CV2188RWS.,CIV.A.1:02-CV2188RWS.
• Citation: 334 F.Supp.2d 1351
• Parties: Patricia A. BURGESS, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

334 F.Supp.2d 1351

Patricia A. BURGESS, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant.

No. CIV.A.1:02-CV2188RWS.

United States District Court, N.D. Georgia, Atlanta Division.

December 8, 2003.

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Hayes Michael Dever, Patricia Jean Duffy, Friedman Dever & Merlin, Atlanta, GA, for Plaintiff.

Marvin Dewayne Dikeman, Webb Zschunke Neary & Dikeman, Atlanta, GA, for Defendant.

ORDER

STORY, District Judge.

Now before the Court for consideration is Defendant's Motion for Summary Judgment [8-1]. After considering the arguments of the parties and the entire record, the Court enters the following Order.

I. Evidentiary Objections

Defendant objected to several items presented by Plaintiff in her Response to Defendant's Motion for Summary Judgment as inadmissible hearsay. As a preliminary matter the Court will first address these objections. Defendant objects to four items: (1) a letter by Dr. Viktor Bouquette; (2) a Mold Lab Report prepared by Envirocure; (3) an Indoor Air Quality Report prepared by Walter H. Carter, Inc.; and (4) a Bio-Remediation estimate prepared by Environmental Investigations, Inc.

In ruling on a motion for summary judgment, a court may consider only evidence that would be admissible at trial. White v. Wells Fargo Guard Servs., 908 F.Supp. 1570, 1577 (M.D.Ala.1995). Inadmissible hearsay cannot be considered on a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999). Evidence produced for summary judgment need not be in an admissible form if it could be reducible to admissible form for trial, United States v. Four Parcels of Real Property, 941 F.2d 1428, 1444 (11th Cir.1991), but the term "reduced to admissible form" as regarding hearsay includes that the item is admissible at trial for some purpose, such as a hearsay exception. Macuba, 193 F.3d at 1323. The evidentiary objections have not been fully briefed. Defendant did not place its objections in the form of a motion to strike or as part of its Reply to Plaintiff's Response to the Motion for Summary Judgment; the objections were filed as an independent submission and did not technically require a response. Plaintiff did not address the evidentiary objections or seek to correct them in her Surreply. Therefore, the Court will consider each item separately to determine its admissibility.

First, Defendant objects to a letter dated, January 18, 2002, by Dr. Viktor Bouquette as inadmissible hearsay. The letter is addressed "To whom it may concern" and states that Dr. Bouquette told Plaintiff that because of the reports of toxic mold in her home, she should leave the house because it is uninhabitable. He further states that he advised her to wear hazardous materials protection equipment when she returns to the home. It does appear that the letter is being presented for the truth of the matter asserted, to show that there is mold in the home and establish that Plaintiff's health related problems were caused by the mold. The letter is not only hearsay but appears to present hearsay within hearsay to the extent that it discusses air quality reports that found mold in Plaintiff's home. Plaintiff presents no other grounds for the admissibility of the letter. In any case, the evidence is not determinative of the outcome of the present Motion. Therefore, the Court will not consider the letter by Dr. Bouquette.

Second, Defendant objects to a Mold Lab Report prepared by Envirocure. Plaintiff contacted Envirocure to test her house for mold following Dr. Bouquette's suggestion. (Burgess Dep. at 58.) Envirocure tested Plaintiff's house on October 15, 2001, and returned results around October 29, 2001. The Mold Lab Report purports to show various types of mold in each room of Plaintiff's house. The report appears to be presented for the truth of the matter asserted, to demonstrate the presence of mold in the house. Since Plaintiff has presented no other grounds for the admissibility of the report, the Court will exclude it from consideration.

Third, Defendant objects to an Indoor Air Quality Report prepared by Walter H. Carter, Inc. Plaintiff requested the inspection as a second opinion after the report by Envirocure. (Burgess Dep. at 58.) The inspection took place November 13, 2001, and the report is dated the same. The report states that there is mold inside the house, identifies the types of mold present, and gives recommendations for cleaning the areas in the house. Like the Envirocure report, the Indoor Air Quality Report appears to be presented for the truth of the matter asserted, to show the presence of mold in the house. Plaintiff has presented no other grounds for its admissibility so it will also be excluded from consideration by the Court.

Finally, Defendant objects to a Bio-Remediation estimate prepared by Environmental Investigations, Inc. The estimate is based on the Indoor Air Quality report above, and on a site visit to Plaintiff's house. The estimate itemizes specific remediation procedures and gives a total cost estimate for the project. The Indoor Air Quality report has already been excluded. Moreover, Plaintiff offers no grounds for the admissibility of the estimate. It is inadmissible as presented for the truth of the matter asserted, to show the presence of mold.

It is true that evidence produced for summary judgment need not be in admissible form if it could be reduced to admissible form for trial. Macuba, 193 F.3d at 1323. Plaintiff, however, failed to produce any response to demonstrate that evidence in the letters and reports could be admissible at trial, such as stating that the doctor and air quality experts would be available to testify at trial. See Id. at 1325 n. 18 (discussing a way the plaintiff could show testimony presented at summary judgment could be reduced to admissible form). Though Plaintiff had ample opportunity to reply, Plaintiff produced no response to Defendant's objections. Therefore, pursuant to Defendant's objections and Plaintiff's failure to identify relevant exceptions to the hearsay rule, the Court declines to consider the above materials in the present Motion. Moreover, the items appear to be presented to show the presence of mold in Plaintiff's house. To the extent that they are offered for this purpose, they are not necessary to the Court's determination in the present Motion because Defendant does not controvert the presence of mold in Plaintiff's house.

II. Factual Background

This suit is a dispute over a claim under a homeowners insurance policy. The facts are undisputed unless noted. Plaintiff, Patricia A. Burgess, purchased a homeowners insurance policy from Defendant Allstate Insurance Company ("Allstate") through its agent Bill House. Allstate's "Deluxe Plus Homeowners Policy," policy number 0-21-421879-11/19, was issued on her residence located at 4379 Beechnut Court, Roswell, Georgia 30075. The policy first issued in 1991 and remained in effect at all times relevant to this litigation.

Around September 6, 2001, Plaintiff returned home from a weekend trip and noticed water damage on her foyer roof. (Burgess Dep. at 38.) While she was not sure whether she was gone for a weekend, or a long weekend, she stated that the water damage must have happened while she was gone because it was there when she returned, but not when she left. (Id. at 39.) She called a contractor who repaired the roof exterior, but did not repair the interior damage. (Id. at 41.) The interior damage included damage to the ceiling, the wall, the foyer tiles and carpet. There was also some damage to the garage. (Id. at 60.)

Plaintiff also experienced water damage to her downstairs basement. On October 15, 2001, she noticed a ceiling tile that had caved in, large water marks on the walls and ceiling, and water stains. (Id. at 44.) The next day, a plumber determined that the problem was related to the dishwasher. The dishwasher was repaired around November 22, 2001. (Id. at 45.) Plaintiff did not use the dishwasher from the time she noticed the problem through the time it was repaired. (Id.)

In late November 2001, Plaintiff contacted her Allstate agent, Bill House, to report the water damage to her house. (Id. at 34.) Plaintiff was concerned about mold and water damage. (Id. at 35.) On November 29, 2001, Allstate claims adjuster Jocelyn Phillips came to Plaintiff's house. Phillips conducted a visual investigation of the damaged areas. It was beyond the scope of her job to determine the source of water, or otherwise touch or investigate the damage. (Phillips Dep. at 53.)

Primarily, Plaintiff was concerned about the water damage in two areas, the foyer and the downstairs basement. (Burgess Dep. at 37.) As to the downstairs basement area, Phillips concluded that water had seeped from the dishwasher and down the wall below. (Phillips Dep. at 53.) She based this determination on statements by Plaintiff that the dishwasher had been leaking, and on multiple water rings she observed which she believed indicated that the area had been wet several times. (Id. at 68.) Plaintiff contests that the water damage was from seepage, but instead believes that the pipe burst. (Burgess Dep. at 45.)

In the garage, Phillips observed a hole in the drywall, dark water stains where the drywall had been cut out and insulation hanging down. (Id. at 54.) Regarding the foyer area, Phillips observed that a single shingle had been replaced on the roof in that area and determined that there had been wind damage to the roof. (Id. at 56.) Plaintiff also showed Phillips a patio door where there may have been water coming in. (Burgess Dep. at 47.) There, Phillips observed mold on the carpet at the doorway. (Phillips Dep. at 58.)

Based on her observations of the downstairs basement area under the dishwasher, Phillips determined that the damage was not covered because it fell under policy exclusions.¹ (Phillips Dep. at 64.) Plaintiff contends that at the time of the...