Dallas Fort Worth Insurance Lawyer Blog
Hail damage claims, like most claims are unique to themselves. Questions that have to be answered in favor of the homeowner include, 1) when did the damage occur, 2) is the damage real damage versus cosmetic damage, 3) was there any damage already existing on the roof, 4) is hail the sole cause of the damage or were there other causes of damage, 5) is wear and tear an issue? These and other factors are sometimes obvious. But, at other times an expert is needed.
The Southern District of Texas, Houston Division, issued a 2021, opinion which is a summary judgment opinion wherein an expert was needed. The opinion is styled, Dustin Farris v. State Farm Lloyds. This is a case where the expert did much more harm than good. The discussion of his opinion shows how obviously bad the expert report he wrote is bad.
The Court spent much time discussing how summary judgment is decided.
Farris had a homeowners policy with Farris and Farris claims to have suffered hail damage to his roof. He made a claim. State Farm denied the claim based on their assertion that any damage was cosmetic in nature and that the policy contained an exclusion for Cosmetic Damage.
Here is the legal standard the Court used.
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment against a party who fails to make a sufficient showing of the existence of an element essential to his case and on which he will bear the burden at trial. Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Where the movant bears the burden of proof at trial on the issues at hand, it bears the initial responsibility of demonstrating the absence of a genuine issue of material fact with respect to those issues.
For summary judgment, the initial burden falls on the movant to identify areas in which there is an absence of a genuine issue of material fact. The moving party may meet its burden by pointing out the absence of evidence supporting the nonmoving party’s case.
If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific evidence showing that there is a genuine issue of material fact for trial. An issue is material if its resolution could affect the outcome of the action.
In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant.
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial. Although the Court may not make credibility determinations or weigh any evidence, the Court is not required to accept conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Instead, the nonmoving party must present evidence of specific facts that show the existence of a genuine issue concerning every essential component of its case. In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts.
Finally, when evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. The court need consider only the cited materials, but it may consider other materials in the record pursuant to Rule 56(c)(3). Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.
Re-stating – a reading of the expert report contained in the opinion shows how inadequate the report was.