Mock v. Cent. Mut. Ins. Co.

• Decision Date: 25 January 2016
• Docket Number: CV 214-113
• Citation: 158 F.Supp.3d 1332
• Parties: E. Raymond Mock, Jr., Plaintiff, v. Central Mutual Insurance Company, Defendant.
• Court: U.S. District Court — Southern District of Georgia

158 F.Supp.3d 1332

E. Raymond Mock, Jr., Plaintiff,

v.Central Mutual Insurance Company, Defendant.

CV 214-113

United States District Court, S.D. Georgia, Brunswick Division.

Signed January 25, 2016

Paul Michael Scott, Richard K. Strickland, Emily Rose Hancock, Brown, Readdick, Bumgartner, Carter, Strickland, Brunswick, GA, for Plaintiff.

Stephanie F. Glickauf, R. Tyler Bryant, Goodman, McGuffey, Lindsey & Johnson, LLP, Sean Branson Cox, Hall, Booth, Smith, PC, Atlanta, GA, for Defendant.

ORDER

LISA GODBEY WOOD

, CHIEF JUDGE

This matter comes before the Court on Plaintiff's Motion for Partial Summary Judgment (dkt. no. 23) and Motion to Strike (dkt. no. 39), as well as Defendant's Motion for Summary Judgment (dkt. no. 28) and Motion to Strike (dkt. no. 57).¹ For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment (dkt. no. 23) is DENIED, and his Motion to Strike (dkt. no. 39) is GRANTED in part and DENIED in part. Additionally, Defendant's Motion for Summary Judgment (dkt. no. 28) is GRANTED in part and DENIED in part, and its Motion to Strike (dkt. no. 57) is DENIED.

BACKGROUND

Plaintiff owns a building in Waycross, Georgia (the “Property”), which he leases to commercial tenants. Dkt. No. 28-1, ¶¶ 1-2; Dkt. No. 39-1, ¶¶ 1-2. From June 1, 2013, to June 1, 2014, Plaintiff was the named insured on an insurance policy issued by Defendant, Policy No. CLP 8886164. Dkt. No. 23-2, ¶ 1; Dkt. No. 34, ¶ 1; see also Dkt. No. 23-3 (“Policy”). The Policy insured Plaintiff's Property against specified loss or damage during the policy period. Dkt. No. 23-2, ¶ 2; Dkt. No. 34, ¶ 2; see also Policy, pp. 13, 23.

I. Repairs to the Property

At all relevant times, the building on Plaintiff's Property has been covered by a foam roof. Dkt. No. 28-1, ¶ 1; Dkt. No. 39-1, ¶ 1. Around June or July of 2013, the tenant on the Property notified Plaintiff that there were several water leaks in the roof due to its deterioration, and that the leaks were leaving some brown stains on the ceiling tiles. Dkt. No. 28-1, ¶ 2; Dkt. No. 39-1, ¶ 2.² Shortly thereafter, Plaintiff hired David Bess (“Bess”) to inspect the Property and to determine what action needed to be taken with regard to the roof. Dkt. No. 28-1, ¶ 3 Dkt. No. 39-1, ¶ 3.

Bess, an uninsured contractor, had previously worked on the roof of Plaintiff's personal home, as well as several of his rental homes, and Plaintiff had been satisfied with his performance. See Dkt. No. 28-1, ¶ 4; Dkt. No. 39-1, ¶ 4. Over the, course of his career, Bess had repaired between three to four hundred roofs, thirty of which were commercial roofs, though none of his work on commercial roofs took place within the fifteen years prior to his inspection of Plaintiff's Property. Dkt. No. 28-1, ¶ 4; Dkt. No. 39-1, ¶ 4.

After inspecting the Property, Bess, to his recollection, consulted with Joel Mendez (“Mendez”), a roofer. Dkt. No. 28-1, ¶¶ 5-6; Dkt. No. 39-1, ¶ 5. Mendez had installed numerous roofs, including metal roofs, and assisted with the roof work on Plaintiff's house, but he had not done the roofing for any commercial properties. See Dkt. No. 28-1, ¶ 6; Dkt. No. 39-1, ¶ 6. Together, Bess and Mendez (collectively, the “Roofers”) determined that a metal roof needed to be installed on top of the Property's existing foam roof, and Plaintiff approved of this plan. See Dkt. No. 28-1, ¶ 5; Dkt. No. 39-1, ¶ 5.

The process of adding the metal roof was to take place as follows: the Roofers would cut trenches in the existing foam roof, use wet cement to seal any nails (such that water would not get in through the nail holes in the event of rain), place wooden planks in the trenches, attach the planks to the wood truss system under the foam roof, install the metal roofing, and then apply flashing and waterproofing. See Dkt. No. 28-1, ¶ 7; Dkt. No 39-1, ¶ 7. As of the evening of August 22, 2013, the Roofers had cut trenches in much of the foam roof, but the parties dispute whether they had begun installing the metal roof. Dkt. No. 28-1, ¶ 8; Dkt. No. 39-1, ¶ 8.³

II. Rain Incident

According to Plaintiff, Bess called him on the evening of August 22, 2013, and notified him that a storm was approaching. Dkt. No. 28-10 (“Pl.'s Dep.”), 51:14-23. Plaintiff states that he instructed Bess, “[G]o to Lowe's and buy some tarps and cover that roof good before you leave,” and that Bess, as directed, “bought $500 worth of tarps, and he covered it.” Id. at 51:23-52:1. Bess confirms these events and adds that it took ten workers and “[h]undreds” of nails and screws to fasten the large tarps to the building. Dkt. No. 28-9 (“Bess Dep.”), 26:11-28:1, 29:6-7, 29:20-30:3. Mendez states that the workers “cover[ed] the whole building” with the tarps. Dkt. No. 29-1 (“Mendez Dep.”), 29:4.

Sometime between the early evening of August 22, 2013, and the early morning of August 23, 2013, it began to rain. Dkt. No. 28-1, ¶ 9; Dkt. No. 39-1, ¶ 9. On the morning of August 22, 2013, Plaintiff received a phone call from the tenant on the Property informing him that there was water inside of the building. Dkt. No. 28-1, ¶ 10; Dkt. No. 39-1, ¶ 10. Plaintiff went to the Property to speak with the tenant and found that the tenant had contacted ServPro Intellectual Property, Inc. (“ServPro”), a water remediation company, who had already arrived at the Property with equipment. See Dkt. No. 28-1, ¶ 15; Dkt. No. 39-1, ¶ 15; see also Dkt. No. 28-6 (ServPro Authorization). Plaintiff agreed to allow ServPro perform the remediation work and signed an authorization form to this effect. Dkt. No. 28-1, ¶ 15; Dkt. No. 39-1, ¶ 15; see also Dkt. No. 28-6. ServPro eventually sent Plaintiff a bill for its services in the amount of $89,000, which Plaintiff settled with ServPro for $85,000. Dkt. No. 23-2, ¶ 6; Dkt. No. 34, ¶ 6.

According to the Roofers, the rain continued for a period of at least two days. Bess Dep., 30:4-5; Mendez Dep., 27:17-18. Bess states that he checked the tarps on the roof during this time, finding that they were “okay” and “fine” after the first day of rain, and that they were still in place but “had ... collapsed” from “[t]oo much rainwater on them” after the second day. Bess Dep., 31:15-32:9. Mendez testifies that he, too, checked the tarps following the rain, finding that none had blown off and all were “still secured or fastened” to the roof. Mendez Dep., 31:17-20, 34:5-10. Mendez notes that the tarps “draped in” with “a bunch of water,” and that water likely got into the trenches, but that he never lifted the tarps to examine the trenches. Id. at 31:10-14, 32:10-18, 34:25-35:5.

While uncertain as to where, exactly, the rainwater entered the building, Plaintiff testifies that he believes it came in somewhere around an air conditioning unit that sits on top of the roof. Pl.'s Dep., 58:21-59:6. Bess, on the other hand, states that he thinks the water drained through the trenches, though he admits that he only saw standing water on the tarps and never saw any water entering the building through a particular trench. Bess Dep., 39:22-24, 40:24-41:15. As for Mendez, he attests that he does not “have any clue” where the water entered the building, whether water got into the trenches, or whether water seeped from those trenches through the foam roof. Mendez Dep., 32:2-8, 32:19-21, 35:3-5.

Sometime thereafter, Plaintiff hired a different roofing contractor, Lifetime Roofing, to replace the existing roof with a rubberized roof. Dkt. No. 28-1, ¶ 16; Dkt. No. 39-1, ¶ 16.

III. The Policy

These events took place during the policy period of Plaintiff's insurance agreement with Defendant. See Dkt. No. 23-2, ¶¶ 1-2; Dkt. No. 34, ¶¶ 1-2; see also Policy, p. 13. The Policy states that “[Defendant] will pay for direct physical loss [of or damage] to Covered Property at the premises caused by or resulting from any Covered Cause of Loss.” Dkt. No. 28-1, ¶ 24; Dkt. No. 39-1, ¶ 24; see also Policy, p. 23. The Policy, in turn, defines “Covered Causes of Loss” as “Risks Of Direct Physical Loss unless the loss is: 1. Excluded in Section B., Exclusions; or 2. Limited in Section C., Limitations; that follow.” Dkt. 28-1, ¶ 24; Dkt. No. 39-1, ¶ 24; see also Policy, p. 48.

In the “Exclusions” section, the Policy includes the following provisions:

3. [Defendant] will not pay for loss or damage caused by or resulting from any of the following[ ] 3a. through 3.c. But if an excluded cause of loss that is listed in 3.a. through 3.c. results in a Covered Cause of Loss, [Defendant] will pay for the loss or damage caused by that Covered Cause of Loss.

a. Weather Conditions. But this exclusion only, applies if weather conditions contribute in any way with a cause or event excluded in paragraph 1. above to produce the loss or damage.

b. Acts or decisions, including the failure to act or decide, of any person, group, organization or governmental body.

c. Faulty, inadequate or defective:

1) Planning, zoning, development, surveying, siting;

2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;

3) Materials used in repair, construction, renovation or remodeling; or

4) Maintenance; of part or all of any property on or off the described premises.

Dkt. No. 28-1, ¶ 24; Dkt. No. 39-1, ¶ 24; see also Policy, p. 51 (“Inadequate Workmanship Exclusion”). Additionally, the Policy's “Limitations” section states as follows:

The following limitations apply to all policy forms and endorsements, unless otherwise stated.

1. [Defendant] will not pay for loss of or damage to property, as described and limited in this section. In addition, [Defendant] will not pay for any loss that is a consequence of loss or damage as described and limited in this section.

...[.]

c. The interior of any building or structure, or to personal property in the building or structure, caused by or resulting from rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless:

1) The building or structure first sustains damage by a Covered Cause of Loss to its roof or walls

...