Cadet v. First Liberty Ins. Corp.

Decision Date07 March 2022
Docket Number1:20-cv-3159-MLB
PartiesGaetane Cadet, Plaintiff, v. The First Liberty Insurance Corporation, Defendant.
CourtU.S. District Court — Northern District of Georgia


In July 2019, a bathroom at Plaintiff Gaetane Cadet's house leaked, flooding and damaging her home. Defendant The First Liberty Insurance Company adjusted the claim and paid Plaintiff. Plaintiff sued, asserting claims for: (1) bad faith, (2) attorneys' fees and costs, (3) punitive damages, (4) Georgia RICO, and (5) diminution of value. Defendant moves for summary judgment and to strike three affidavits Plaintiff filed in opposing summary judgement. (Dkts. 33; 38; 39; 45.) The Court grants all Defendant's motions.

I. Background
A. The Court's Use of Proposed Facts and Responses

The Court draws the facts largely from the parties' submissions. In support of its motion for summary judgment Defendant filed a statement of undisputed material facts (Dkt. 33-1). See LR 56.1(B)(1), NDGa. Plaintiff responded to Defendant's statement of material facts (Dkt. 42-2).[1] See LR 56.1(B)(2)(a). Plaintiff also filed an additional statement of undisputed material facts (Dkt. 42-2 at 6-14.). See LR 56.1(B)(2)(b).[2]

The Court uses the parties' proposed facts and responses as follows. When a party does not dispute the other's fact, the Court accepts it for purposes of summary judgment and cites the proposed fact and corresponding response. When one side admits a proposed fact in part, the Court includes the undisputed part. When one side denies the other's proposed fact in whole or in part, the Court reviews the record and determines whether a fact dispute exists. If the denial lacks merit, the Court deems the fact admitted so long as the record citation supports it. If a fact is immaterial, it is excluded.[3] If a fact is stated as an issue or legal conclusion, it is excluded. See LR 56.1(B)(1)(c). Where appropriate, the Court modifies one party's fact per the other's response when the latter better reflects the record. Finally, as needed, the Court draws some facts directly from the record. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”).

B. Facts

Plaintiff owns a home in Sugar Hill, Georgia. (Dkts. 33-1 ¶ 1; 42-2 ¶ 1.) Defendant issued Plaintiff an insurance policy on the home. (Dkts. 33-1 ¶¶ 6-7; 42-2 ¶¶ 6-7.) The policy was in effect from October 2018 through October 2019.[4] (Id.) It stated Defendant would pay the actual cash value of the damages until the cost to replace the damage is incurred, at which point Defendant would pay more funds up to the replacement cost. (Dkts. 33-1 ¶ 9; 42-2 ¶ 9.) It further stated that “Loss Settlement does not include payment for any actual or perceived decrease in market or resale value resulting from loss to or repair of your covered property.” (Dkts. 33-1 ¶ 8; 42-2 ¶ 8.)

On July 14, 2019, Plaintiff notified Defendant that a bathroom on the second floor of her home had flooded. (Dkts. 33-1 ¶ 10; 42-2 ¶ 10, 44; 44 ¶ 44.) The water damaged walls, ceiling, and floors. (Dkts. 33-1 ¶ 12; 42-2 ¶ 12.) Plaintiff had made at least four prior claims with Defendant for damages to her house, specifically claims in 2009, 2011, 2015, and 2018. (Dkts. 33-1 ¶¶ 2-3; 42-2 ¶¶ 2-3.)

On July 14, Defendant sent a remediation company, Rainbow International Restoration to the property. (Dkts. 33-1 ¶¶ 11, 13; 42-2 ¶¶ 11, 13, 44; 44 ¶ 44.) Rainbow found that the upstairs toilet had overflowed, resulting in damages to the first-floor ceiling. (Dkts. 33-1 ¶ 13; 42-2 ¶ 13.) Within three days, Defendant sent an adjuster to the property to inspect and estimate the damage. (Dkts. 33-1 ¶ 14; 42-2 ¶ 14, 45; 44 ¶ 45.) The adjuster found damage to the property totaling $8, 202.48 and damage to personal items totaling $5, 554.37. (Dkts. 33-1 ¶ 16; 42-2 ¶ 16.) Defendant determined the value of the loss was $13, 979.36. (Dkts. 33-1 ¶ 17; 42-2 ¶ 17.) Defendant explained this to Plaintiff and sent a check for $5, 740.51 on July 18, 2019. (Dkts. 33-1 ¶¶ 18-20; 42-2 ¶¶ 18-20.) Defendant advised Plaintiff she would receive the balance of the loss, measured by the replacement cost, once she incurred costs to repair and replace the damage. (Dkts. 33-1 ¶ 21; 42-2 ¶ 21.)

Plaintiff testified she understood but had made no repairs to her dwelling. (Dkts. 33-1 ¶ 36; 42-2 ¶ 36.)

Plaintiff sent Defendant a letter on February 7, 2020 demanding $110, 878.59. (Dkts. 33-1 ¶ 22; 42-2 ¶ 22.) This included damages to the dwelling in the amount of $87, 760.02, damages to personal property in the amount of $3, 116.57, and $20, 000 for diminution of value. (Dkts. 33-1 ¶ 23; 42-2 ¶ 23.) On June 25, 2020, Plaintiff sued Defendant, bringing claims for bad faith failure to pay pursuant to O.C.G.A. § 33-4-6 (Count I); attorneys' fees and costs pursuant to O.C.G.A. § 13-6-11 (Count II), punitive damages pursuant to O.C.G.A. § 51-12-5.1 (Count III), Georgia RICO pursuant to O.C.G.A. § 16-14-1, et seq. (Count IV), and diminution of value (Count V). (Dkt. 1-1.)

During discovery, Defendant took Plaintiff's deposition. Plaintiff testified she hired Mr. Bruce Fredrics to provide her an estimate to repair certain items in her house and that his work became the basis for her demand against Defendant. (Dkt. 33-4 at 28:16-24.) She also admitted that portions of her February 2020 demand were not, in fact, related to the July 14, 2019 water loss, and instead, represented unrelated, prior damages to her home. (Dkts. 33-1 ¶ 24; 42-2 ¶ 24.)[5] Plaintiff admitted her February 2020 demand included unrelated prior damage to the laundry room, lower hall, lower, bath, dining room, and master bath. (Dkts. 33-1 ¶ 25; 42-2 ¶ 25.) Indeed, Plaintiff knew much of the damage claimed was unrelated to the 2019 claim. (Dkts. 33-1 ¶ 26; 42-2 ¶ 26.) Plaintiff also testified that while her contents claim was for $3, 116.57, Defendant paid her $5, 554.47 for damages to contents of her house. (Dkts. 33-1 ¶ 27; 42-2 ¶ 27.)

Defendant move for summary judgment on Plaintiff's bad faith claim, arguing Plaintiff's admission that her February 7, 2020 demand included costs unrelated to the July 14, 2019 water leak precluded such a claim. (Dkt. 33-2 at 6-11.) Plaintiff then filed an affidavit retracting her deposition testimony and saying her demand against Defendant did not include and “prior losses.” (Dkt. 37 ¶ 5.) In opposing summary judgment, she also filed two affidavits from Mr. Fredrics. (Dkts. 36, 42-5.)

II. Objections and Motions to Strike
A. Legal Standard

“Several district courts in the Eleventh Circuit have held that a motion to strike is not the proper method for challenging the admissibility of evidence in an affidavit.” Corey Ariport Servs., Inc. v. City of Atlanta, 632 F.Supp.2d 1246, 1267 (N.D.Ga. 2008), rev'd in part sub nom. Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280 (11th Cir. 2009). [T]he preferred method for challenging a defective affidavit is to file a notice of objection to the challenged portion of the affidavit.” Putnal v. Guardian Life Ins. Co. of Am., No. 5:04-cv-130, 2006 WL 2850424, at *3 (M.D. Ga. Sept. 29, 2006).

B. Bruce Fredrics's First and Second Affidavits

Plaintiff submitted her Rule 26 disclosures on September 11, 2020, stating no experts had been “hired to date for trial” but reserving her right to supplement the response. (Dkt. 14 at 11.) On November 4, 2020, Plaintiff identified Mr. Fredrics as a purported expert in her responses to Defendant's first interrogatories, stating Mr. Fredrics is an “insurance and damage expert used by Plaintiff in this case and his expertise will be on the insurance industry standards [and] the value of the damages for Plaintiff's real and personal property in this case.” (Dkt. 38-1 at 3.) Discovery ended April 30, 2021, without disclosure of an expert report.

Defendant filed a motion for summary judgment on May 27. (Dkt. 33.) Well beyond the date in which she was required to respond to that motion, Plaintiff filed an emergency motion for extension of time to respond to Defendant's motion for summary judgment. (Dkt. 34.) The Court granted that motion. On August 3, 2021, over thirteen weeks after the expiration of the discovery period, Plaintiff submitted Mr. Fredrics's first affidavit, claiming he would serve as an expert witness in this case. (Dkt. 36.) Then, in responding to Defendant's motion for summary judgment, Plaintiff included Mr. Fredrics's second affidavit, purporting to offer several legal opinions. (Dkt. 42-5.) Defendant moves to strike both. (Dkts. 38, 45.)

Regarding the first, Defendant argues Mr. Fredrics was not identified as an expert in Plaintiff's initial disclosures, has not provided a report, and has not provided a summary of facts and opinions to which he is expected to testify, or the bases for them. (Dkt. 38 at 10.) Plaintiff filed nothing in response. The Court thus deems the motion unopposed. LR 7.1(B), NDGa (“Failure to file a response shall indicate that there is no opposition to the motion.”). After considering its merits, the Court sustains the objection and strikes that affidavit.

Federal Rule of Civil Procedure 26(a)(2)(B) states an individual retained to provide expert testimony must provide a signed written report containing

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the expert in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness

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