Dallas Fort Worth Insurance Lawyer Blog
Hail damage claims sometimes require experts to assist in the claim. This is the case in a 2023 opinion from the Western District of Texas, San Antonio Division. The opinion is styled, PMJ Bleu Terre Management, LLC, v. AmTrust Insurance Company Of Kansas, Inc.
AmTrust filed a motion to exclude the expert testimony of a roofing expert hired by PMJ to testify about wind and hailstorm damage to PMJ’s property. AmTrust denied the claim stating that the hail damage found on the property predated the policy period by a couple of months and therefore fell outside the scope of coverage. This lawsuit followed.
AmTust’s motion arises under the standards set forth in Rule 702 of the Federal Rules of Evidence. Rule 702 of the Federal Rules of Evidence was amended to provide that a witness “qualified as an expert . . . may testify . . . in the form of an opinion . . . if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. When expert testimony is challenged, the burden of proof rests with the party seeking to present the expert testimony.
Expert testimony is admissible only if the proponent demonstrates that: (1) the expert is qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable.
PMJ designated Mr. McIntyre as a retained expert. Mr. McIntyre is a registered professional engineer in Texas with 43 years of experience in engineering generally and significant experience in the area of building inspection and assessment of water, wind, tornado, and hail damage.
The record reflects that McIntyre inspected the roof on January 4, 2022. McIntyre issued a roof report on March 8, 2022. The report identifies the date of loss as May 3, 2021, the alleged date of loss in the Original Petition. According to the report, baseball sized hail was reported across San Antonio on this date, along with high winds and tornadoes. McIntyre testified in his deposition that this conclusion was based on a hail history report by Stormersite (a weather reporting site), as well as references to other news sources and weather reports from that date.
The report describes the roof of the Property as a spray polyurethane foam roof (SPF) with a weather resistant coating on top of the SPF installed in 2017. At the time of inspection, McIntyre observed numerous dents, cuts, and breaches to the roof surface. McIntyre took moisture readings of the SPF in various places on the roof and found 40% to 60% moisture content in the foam. He also documented dents in the HVAC coils of the rooftop units and dents in ground-mounted AC units and considered a roof core sampling test previously performed by Jamie Wesselski, public adjuster, as part of a loss estimate performed in July 2021, which revealed 61% moisture content. McIntyre also reviewed interior photographs taken by Wesselski showing water stains on roof beams and ceiling stains, and a Property Condition Assessment Report dated July 20, 2020, prepared by Property Condition Assessment Consultants, Inc., which was based on an inspection of the entire property on July 1, 2020.
The roof report concludes that the SPF is saturated with excessive moisture throughout the roof and that the San Antonio Building Code will not allow re-coating of the existing roof but requires complete roof removal and replacement. McIntyre also finds that replacement of the flashing of the roof and aspects of the interior (ceilings, carpets, and batt insulation under the roof deck) will require removal and replacement as well.
McIntyre issued a supplemental report on July 10, 2022, to address the finding of Plaintiff’s “weather expert,” Greg Degeyter, that hail did not strike the Property on May 3, 2021, the alleged date of the storm causing the damage at issue and the date referenced in McIntyre’s original roof report. Degeyter’s analysis found that hail struck the Property on April 28, 2021, based on radar return echoes. McIntyre states in his supplemental report that he intends to defer to Degeyter’s knowledge of meteorology for the date of hail damage at the Property. He further notes that the exact date of the hail damage does not change the opinion in his original report, as there is ample evidence of hail damage on the roof, breaches in the roof surface coat, and the roof assembly is saturated in many locations across the roof.
First, as to the saturation of the roofing system, McIntyre’s opinion is based on his firsthand observation of damage to the roof, performance of six 10×10-foot hail test squares on the roof, verification of observations against SPF Alliance guidelines for assessing hail damage, and the review of photographs of core roof sample tests by Wesselski and his photos of interior leaks. McIntyre also used a non-destructive moisture meter to obtain measurement of the moisture content at the various breaches in random areas of the entire roof. AmTrust points out that this was only the second SPF roof that McIntyre has inspected in his career. But that does not on its own render his opinion unreliable. McIntyre testified in his deposition that utilizing a moisture meter to test saturation of the roof is an accepted practice in the industry.
Second, as to the timing of the hailstorm, McIntyre’s opinion does not depend on a precise date of hail damage; he only intends to testify that the damage occurred within the policy period, sometime between July 31, 2020, to July 31, 2021. McIntyre’s opinion that the storm occurred during the policy period is based on a review of the meteorology expert report of Degeyter, independent verification of the April 28, 2021 hailstorm through the National Oceanic and Atmospheric Administration’s (NOAA’s) database, a review of the July 20, 2020 Property Condition Assessment (which was nine days before the beginning of the policy period), and corresponding photos of the same rooftop units demonstrating no dents in the roof and coils. Importantly, the July 20, 2020 Property Assessment does not contain any reference to roof leaks or hail damage to the roof or roofing unit coils and reports the roof being in good condition. McIntyre reasonably relied on this report in concluding that if the roof was damaged prior to the policy period, there would be damage recorded in the July 20, 2020 report.
Finally, as to the cause of the interior water damage, McIntyre’s opinion is not rendered unreliable solely by the fact that he did not personally inspect the interior of the Property and relied on photographs from the public adjuster. Furthermore, McIntyre testified that he had ruled out other possible causes of the interior water damage, such as condensation, because the HVAC drainage system is located on the roof, not through the interior, and therefore the failure would have to be at the roof level. In summary, PMJ has established the reliability of McIntyre’s opinions as to the extent and timing of the hail damage to the Property at issue, and AmTrust’s motion is denied.