Nat'l Sur. Corp. v. Ga. Power Co.
| Decision Date | 12 September 2019 |
| Docket Number | CIVIL ACTION NO. 2:17-CV-68-RWS |
| Parties | NATIONAL SURETY CORPORATION, Plaintiff, v. GEORGIA POWER COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
This case is before the Court on Plaintiff's Partial Motion for Summary Judgment [81] and Motion in Limine to Exclude Testimony of Defense Expert C. Michael Dickinson [80], as well as Defendant's Motion for Summary Judgment [83] and Motions to Exclude Reports and Testimony of Plaintiff's Experts Edward Brill [84] and J. Michael Hawkins [85]. After reviewing the record and considering parties' arguments at oral argument on August 26, 2019, the Court enters the following Order.
This is a subrogation action to determine Georgia Power's liability for the March 17, 2015 fire at Brandreth Farms in Talking Rock, Georgia. The facts are largely undisputed.
On March 16, 2015, Georgia Power's employees worked on electrical equipment housed in the barn. The following morning around 7:00 a.m. Brandreth woke up to his dogs barking and walked outside to check on them. From his carport, he saw the fire and a "white light" like an "electrical arc" emanating from the wash rack at the barn, which was approximately a "football field and a half" away. (Def.'s SMF, Dkt. [83-7] at ¶¶ 10-11; Deposition of John Brandreth, Dkt. [83-4] at 13:6-11, 52:10-13.) Brandreth ran to the barn to save his horses. When he arrived, the barn was clear, but as he tried to get the horses out, he saw the fire moving fast around the open back wall and into the aisle. Brandreth exited safely, but the fire destroyed the barn and the horses in it. It also largely destroyed the nearby arena.
Plaintiff National Surety Corporation insured the property against fire damage and, pursuant to its policy, indemnified Brandreth Farms for losses arising from the fire, amounting to $742,131.39. Plaintiff also hired fire investigator Michael Hawkins to investigate the fire's origin and cause, which was conductedon April 2015. Hawkins determined the fire originated on the left, rear exterior of the barn where the electrical meter base and electrical service entrance was located.
National Surety initiated this action on February 1, 2017, alleging Georgia Power's negligent work on the barn's electrical service equipment caused the fire. Georgia Power moved to dismiss the claim, which the Court denied [24], and then Answered Plaintiff's Complaint with thirteen affirmative defenses. Plaintiff now moves for partial summary judgment on eight of them, as well as to exclude the testimony of Defendant's expert, Michael Dickinson. Defendant moves for summary judgment and to exclude the expert testimony of Hawkins and Edward Brill. The Court will consider each argument in turn, after first setting out the applicable standards of review.
Federal Rule of Civil Procedure 56 requires that summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "The moving party bears 'the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those inferences that are reasonable. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec.Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted); see also Matsushita, 475 U.S. at 586 ().
Federal Rule of Evidence 702 governs the admissibility of proposed expert evidence:
The trial court, as the gate-keeper, must determine that the testimony is "sufficiently tied to the facts of the case that it will aid the jury in resolving afactual dispute." Daubert v. Merrell Dow Pharm., 509 U.S. 579, 591 (1993) (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). The trial court must also "make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. Ltd. v. Carmichel, 526 U.S. 137, 152 (1999).
The Eleventh Circuit has synthesized the existing rules into a three-part inquiry, instructing courts to consider whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998), reh'g and reh'g en banc denied, 172 F.3d 884 (1999). It is important to note that "expert testimony that does not meet all or most of the Daubert factors may sometimes be admissible." U.S. v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005). Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331, 1338 (11th Cir. 2009) (quoting Kumho Tire Co., 526 U.S. at 150, 152).
Plaintiff moves for summary judgment on eight of Defendant's affirmative defenses. In Response [90], Defendant withdraws all challenged affirmative defenses but the eleventh. Defendant's eleventh affirmative defense maintains that Plaintiff failed to mitigate damages by electing not to salvage the remaining arena.1 Plaintiff argues Defendant has not met its evidentiary burden on this issue.
As the moving party, Plaintiff has the burden of demonstrating there is no genuine dispute as to any material fact and that it did not fail to mitigate damages as a matter of law. See Hickson 357 F.3d at 1259. Defendant contends that there is a genuine issue of material fact as to whether Plaintiff failed to mitigate its damages based solely upon Defendant's expert, Daniel Sheehan's, testimony that the fire did not destroy the entire arena and that "economically, it would have made sense" to try and salvage the southern portion. (Sheehan Dep., Dkt. [90-4] at48:22-49:13.) While Plaintiff maintains the entire arena was beyond repair, it argues that is immaterial because Defendant has not presented evidence that salvaging the remaining arena was more economical than Plaintiff's decision to build a new arena. The Court agrees.
Georgia's mitigation rule is set forth in O.C.G.A. § 51-12-11, which states that: "[w]hen a person is injured by the negligence of another, he must mitigate his damages as far as is practicable by the use of ordinary care and diligence." O.C.G.A. § 51-12-11. See also DeVooght v. Hobbs, 593 S.E.2d 868, 873 (Ga. Ct. App. 2004) (). That said, "[t]he burden is upon the party asserting that the opposite party could have lessened his damages, and such proof must include sufficient data to allow the jury to reasonably estimate how much the damages could have been mitigated." Georgia Farm Bureau Mut. Ins. Co. v. Turpin, 668 S.E.2d 518, 521 (Ga. Ct. App. 2008) (internal citation omitted). Defendant has not met that burden.
Sheehan's opinions on the issue are largely unhelpful because his expert testimony is based on his role as a structural engineer who does not do cost analysis. (Id. at 49:14-50:1 ()) His written report reflects the limited scope of...
To continue reading
Request your trial