CLAUDIA WILKEN, District Judge.
A fire damaged two buildings and destroyed a third. All three buildings are owned by Plaintiff Globe Imports Limited, a division of which is Plaintiff Globe Properties. Docket No. 63, Joint Pretrial Conference Statement (JPCS) at 1.
For the bench trial in this matter, the Court instructed the parties to offer their direct testimony through the designation of declarations and deposition transcripts. The parties have filed trial briefs with these declarations, deposition transcripts and documentary evidence and also include citations to the material that they submitted previously with the earlier motions. The parties were given the opportunity to cross-examine witnesses during the bench trial. The parties also filed post-trial briefs and written closing arguments.
Nationwide objects to some of the evidence submitted by Globe. The Court has reviewed these evidentiary objections and has not relied on any inadmissible evidence. The Court will not discuss each objection individually. To the extent that the Court has relied on evidence to which one side has objected, such evidence has been found admissible and the objections are overruled.
The Court now enters its findings of fact and conclusions of law.
On December 8, 2006, a fire in Eureka, California damaged two buildings and destroyed a third building owned by Globe. JPCS at 1. One of the damaged buildings, Building 1, was located at 527, 531 and 535 Third Street.
Building 2 comprised a first floor used as a meat market, a second floor originally used as a dance hall with a sprung dance floor and a mezzanine area above the second floor. Docket No. 68, Maxon Dec. in Opp. ¶ 6; Transcript at 27:17-28:4. The stairway leading to the second floor had two landings. Maxon Dec. in Opp. ¶ 7. It was lined with ornate wainscot and heavy trims and finishes.
Repairs have been performed on Buildings 1 and 3, but Building 2's reconstruction has not yet begun. A "different building" is going to take the place of Building 2. Transcript at 27:12-14. Instead of two stories and a mezzanine, there will be three stories.
Nationwide and Globe entered into a commercial property insurance contract for the period January 1, 2006 to January 1, 2007. JPCS at 2. Under the Commercial Property Statement of Values, the contract contains a blanketed $4,501,700 limit.
A. Coverage
Globe purchased optional replacement cost coverage under the insurance contract.
G. Optional Coverages
The contract includes coverage for increased costs of construction in the Additional Coverages provisions:
To date, Nationwide has paid $1,609,242 toward repairing Buildings 1 and 3 and for the actual cash value of Building 2.
"The burden is on an insured to establish that the occurrence forming the basis of its claim is within the basic scope of insurance coverage."
"Replacement cost is the estimated cost to construct, at current prices, a building with utility equivalent to the building being appraised, using modern materials and current standards, design, and layout."
The parties dispute several costs related to each of the three buildings.
On December 10, 2007, Globe submitted to Nationwide a claim for $373,928 for repairs it had completed on Building 1. Ex. 1. The parties agree that $35,497 of the $373,928 was not covered under the Contract. Globe also claims that it is owed $86,690 for Robert Maxon's work as a Project Manager. The Court discusses each disputed cost enumerated in the parties' Disputed Items Chart (Chart) below. Docket No. 102.
Globe submitted for reimbursement a cost of $2,824 for "GAS SERVICE RELOCATION/REARRANGEMENT COSTS." Ex. 1 at 3. Pacific Gas & Electric's invoice for this service was dated May 11, 2007.
The Court finds that Globe is entitled to the cost of the gas relocation service because the loss of gas to Unit 535 was caused by the fire.
Globe had a gas line installed that serviced Building 1 and Building 3. The installation cost $5,666; that cost is divided in half between the two buildings.
The Court finds that Globe is not entitled to two-thirds of this amount because trenching, a form of excavation, is not covered under the contract.
The fire destroyed electrical service to Building 1. Transcript at 225:18-21. The parties stipulated at trial that much of the repair cost is excluded as excavation.
Before the fire, Buildings 1 and 3 combined received 600 amps of electrical power. Transcript at 15:7-16, 225:22-226:3. The Court finds the evidence supporting Nationwide's theory that Building 1 and Building 3 had 300 amps combined before the fire less credible than Globe's. Because the fire destroyed electrical service to Buildings 1 and 3, Kneaper Electric installed a 600-amp pull can, a 200-amp meter and a 100-amp meter that would service both buildings. Ex. 1 at 83; Transcript at 14:20-25, 15:5-6. Kneaper's services cost $12,804. Ex. 1 at 83.
Because Kneaper replaced property that was damaged, rather than adding increased electrical power, Globe is entitled to this money under the contract.
Globe spent $116 on masonry sealer for the interior brick. Transcript at 16:13-19; Ex. 1 at 126. The masonry sealer was applied to the brick to stop the efflorescence caused by excessive moisture following the fire. Transcript at 16:20-25, 60:11-25.
The Court finds that the masonry sealer was a necessary repair cost.
For $252, Johnston Construction performed demolition of gas lines that were under Building 1 and that served Building 2. Transcript at 215:20-23; Chart. These lines were hanging from the crawl space, Transcript at 216:13-17, and were in the way of electrical work,
The Court finds that this cost was not necessary and therefore is not covered under the contract. Globe is not entitled to this money.
A ponding problem occurred on the roof of Building 1 as a result of the new parapet wall and cricket system. Ex. 4 at 303. Building 1's roof had only limited ponding problems before the fire because it was an essentially flat roof with a slope. Transcript at 280:19-281:6. The parapet that had existed was damaged and destroyed by the fire.
The Court finds that the ponding problem was not a result of the fire. Therefore, this cost is not covered under the contract, JPCS at 2, and Globe is not entitled to reimbursement for these repairs.
Johnston Construction demolished and removed brick footing from Building 2 and charged $1,392. Ex. 1 at 146. This footing was very close to Building 1's east wall; removing it was required to perform repairs to the 2x6 laminated firewall. Transcript at 211:10-18. Nationwide argues that the brick footing must have extended below the ground and, as a result, its removal required excavation. The Court is not persuaded.
The Court finds that Nationwide did not satisfy its burden of showing that the excavation exception applies. Thus, Globe is entitled to this $1,392.
In 2002, Building 1 had special interior painting with a lime peel texture and a light finish. Transcript at 212:8-12. The Court finds that special texturing existed because it finds Pete Johnston, Globe's general contractor, credible. The 2002 finish required at least one coat of primer and two finish coats, all sprayed and back rolled.
Because repainting these interior walls required the special treatment described by Globe, the Court finds that this expense was necessary. Globe is entitled to reimbursement for the money it paid.
Plaintiff Maxon claims a management fee in the amount of $86,690. Transcript at 69:21-24. Maxon's compensation as project manager for Globe was part of his normal salary as an employee of Globe, Depo. Desig., Ex. A at 18:11-14, and Globe incurred no additional costs for Maxon's work as project manager following the fire,
The Court finds that no management fee was "actually spent" that was "necessary to repair" the damaged property. JPCS at 4. Globe is not entitled to this money.
In sum, Globe is entitled to $329,038 in reimbursement for repairing Building 1. This sum is equal to the amount claimed ($373,928) minus the agreed-upon non-covered costs ($35,497) minus the disputed costs to which Globe is not entitled ($9,393
Building 2, which was destroyed in the fire, has not yet been rebuilt. Instead, Globe and Nationwide propose competing bids. Nationwide hired Charles Allen, who prepared bids to reconstruct Building 2. Allen Dec. at 2:13-15. Allen was willing to perform any work at the prices listed in his bids.
Globe's estimate is $295,509. Ex. 9 at 285. This number is twelve percent of the total bid. Transcript at 156:8-11, 186:22-24. Charter testified that twelve percent is standard in the United States.
The Court finds that Nationwide's price of $63,100 is appropriate under the contract's definition of replacement cost.
Globe's estimate lists a price of $27,125. The parties agree that this estimate breaks down as follows: $2,851 for gravel excavation, $2,685 for demolition and disposal of the perimeter foundation and $21,600 for demolition and disposal of the slab and footings. Globe now agrees that it is not entitled to $2,851 for gravel excavation, so its estimate is $24,285. Nationwide Br. at 5. Nationwide's bid price is $17,762 for demolition of the slab alone. Allen Dec. at ALLCO 184.
The Court finds that Nationwide did not satisfy its burden to show that demolition and disposal of the perimeter foundation constitutes excavation. Globe is entitled to the $2,685. However, the Court finds that Globe's higher price for demolition of the slab is not necessary.
Globe estimates that reconnecting power to Building 2 would cost $81,132.
Regarding the amperage, the Court finds that Building 2 originally had 400 amps, meaning no portion of Globe's estimate results from amperage additions.
Regarding the availability of the power source, the Court finds that Globe failed to meet its burden to prove that connecting to a new power source was "necessary" for replacement. JPCS at 3. Because Globe is not entitled to this portion of its estimate amount, it is entitled to $42,957 for this cost.
Globe estimates that this cost is $4,837. Ex. 9 at 285 (before 1.088 multiplier). Nationwide estimates that this cost is $2,479. Allen Dec. at ALLCO 227 (before 1.2 multiplier).
Globe did not carry its burden to prove that its higher cost is necessary, particularly in light of Allen's testimony that he would be willing to do this work at his bid price.
Globe's estimate for this cost is $25,509: $17,743 for the steel vault and $7,766 for the vault door. Ex. 9 at 285, 296 (before 1.088 multiplier). Nationwide's estimate is $17,208. Allen Dec. at ALLCO 210 (before 1.2 multiplier). Nationwide's estimate is based on a door size smaller than Globe's.
Globe did not carry its burden to prove that its higher estimated cost is necessary.
Globe estimates $588,696 for this cost. Ex. 9 at 285 (before 1.088 multiplier). This estimate includes substantial amounts of old growth redwood.
The Court finds that old growth redwood is not necessary to replace Building 2 with a building of equivalent utility, using modern materials and current standards, design and layout.
Globe estimates that it needs $62,872 for this cost. Ex. 9 at 285 (before 1.088 multiplier).
The Court finds that Globe did not carry its burden to prove that there was a redwood floor under the concrete slab that warrants replacement.
Globe estimates it needs $49,903 for 1×8 redwood shiplap siding on three exterior walls. Ex. 9 at 285 (before 1.088 multiplier). Before the fire, there had been exposed redwood shiplap on the north side of the building, Transcript at 84:22-85:1, and redwood shiplap siding underneath a stucco exterior on the south and west walls,
The Court finds that unexposed redwood is not included within the measure of replacement cost under the contract.
Globe estimates that it would take $24,178 to reconstruct this stairway. Ex. 9 at 285 (before 1.088 multiplier). Charter based that estimate on eyewitness accounts of the size and finishes. Transcript at 172:24-173:2. Nationwide's bid is $18,120. Allen Dec. at ALLCO 191-92 (before 1.2 multiplier).
Globe failed to carry its burden to prove that its higher cost is necessary for replacement. Globe is entitled only to $18,120 for the stairway.
Globe estimates that it will need $25,629 for open web pitched trusses. Ex. 9 at 285 (before 1.088 multiplier). Nationwide estimated that they would cost $21,188. Chart; Nationwide Br. at 16. Nationwide points to no evidence in the record that explains its amount.
Globe is entitled to the full amount of its estimate of $25,629.
Globe estimates that it will need $17,660 for rough hardware. Ex. 9 at 285 (before 1.088 multiplier). Charter typically uses a five percent measure but, where materials are more expensive, he lowers that number to three percent, which is what he did here. Transcript at 173:21-174:3. Nationwide estimates that it would cost $10,565. Chart; Nationwide Br. at 17. Nationwide points to no evidence in the record that explains its amount.
Globe is entitled to the full amount of its estimate of $17,660.
Globe estimates $50,909 for doors and frames. Ex. 9 at 285 (before 1.088 multiplier). Charter's bid is based on prior projects he had worked on. Transcript at 176:12-18. He estimates that installing the doors would take eight hours per door, at forty dollars per hour.
Globe failed to carry its burden to prove that its higher cost is necessary for replacement. Globe is entitled to Nationwide's estimate of $19,238.
Globe's estimate for this cost is $70,358. Ex. 9 at 286 (before 1.088 multiplier). Charter received this price from a subcontractor who would replicate the window frames in photographs. Nationwide's estimate is $40,615. Chart. Allen's bid also relies on the photographs. Transcript at 334:21-24. Allen's testimony is credible because he was willing to perform the work for his bid price.
Globe failed to carry its burden to prove that its higher cost is necessary for replacement. Globe is entitled only to Nationwide's estimate of $40,615.
Globe's estimate for this cost is $3,869. Ex. 9 at 286 (before 1.088 multiplier). Nationwide's is $1,968. Allen Dec. at ALLCO 228 (before 1.2 multiplier).
Globe failed to carry its burden to prove that its higher cost is necessary for replacement. Globe is entitled to Nationwide's estimate of $1,968.
Globe's estimate for this cost is $191,488. Ex. 9 at 286 (before 1.088 multiplier). This estimate is based on the premise that 19,800 square feet require lath and plaster,
Globe failed to carry its burden to prove that its higher cost per square foot of lath and plaster is necessary for replacement purposes. Globe is entitled to Nationwide's post-multiplier pricing for 19,800 square feet, which totals $100,980.
Globe estimates that replacing a sprung dance floor will cost $86,188. Ex. 9 at 286 (before 1.088 multiplier). The sprung dance floor covered 3,516 square feet of Building 2's second floor. Ex. 9 at 313. The price per square foot is $24.513 after the 1.088 multiplier. Nationwide's estimate is $18,748 for sport flooring for the 934 square feet more recently used as a martial arts studio. Chart; Docket No. 82-1.
Following a fire in 1976, the sprung dance floor was covered in plywood. Transcript at 138:7-9. Immediately before the 2006 fire, Building 2's second floor had been used as a martial arts studio.
Globe failed to meet its burden to prove that all the square footage of sprung dance floor is required to use it for the same purpose as before the fire.
Globe's estimate for this cost is $5,241. Ex. 9 at 286 (before 1.088 multiplier). Nationwide's is $3,535.
Because Nationwide presented no evidence at trial supporting its calculation, the Court finds that Globe is entitled to its estimate of $5,241.
Globe estimates that $7,031 will be required to replace 1,454 square feet of Fiber Reinforced Plastic (FRP) panels that existed in the butcher area in Building 2. Ex. 9 at 286 (before 1.088 multiplier). Nationwide estimates that $3,365 will be required to replace 1,304 square feet of FRP. Allen Dec. at ALLCO 205, 212, 214, 218, 219 (before 1.2 multiplier).
Globe failed to carry its burden to prove that its higher cost is necessary for replacement. Globe is entitled to Nationwide's price of $3,365.
Globe's estimate is $84,622. Ex. 9 at 286 (before 1.088 multiplier), 323. Nationwide's estimate is $74,186, including $7,920 for underground sewer piping, which Nationwide argues is not covered. Nationwide Br. at 21.
The Court finds that Globe is entitled to the full amount of its estimate: $84,622. Nationwide has not presented evidence that undercuts the necessity of any of the line items in Globe's estimate.
Globe's revised estimate is lower than the one in its original estimation chart. Globe's price of nine dollars per square foot remains the same,
The Court finds that Globe is entitled to its revised estimate of $94,982. It is not persuaded otherwise by Allen's general testimony regarding building types.
Globe estimates that it needs $9,450 for temporary site fencing. Ex. 6 at 21-22. Fencing is costing Globe $150 per month.
The Court finds that Globe is entitled to eight months of fencing at $150 per month, or $1,200. Globe has not shown that fencing in excess of eight months is necessary to replace the building.
Nationwide's numbers, based on Allen's bids, include ten percent for overhead. This overhead amount includes insurance. Transcript at 344:11-16. Because Globe applied a multiplier to Charter's estimates to match Nationwide's estimates, the Court finds that the multipliers added and used throughout trial include this form of insurance. For this reason, Globe is not entitled to any additional money.
The Court finds that the multipliers used by the parties to align their estimates for overhead and profit purposes include this form of insurance.
There is no mention of meat lockers and freezers in any of the direct testimony submitted to the Court or in any of the pre-trial papers, such as the disputed items chart submitted before trial. Nor is there an entry for them in Charter's bid.
The parties agree that Globe will be entitled to a depreciation holdback of $92,035 once the building is completed.
In sum, based on the Court's resolution of each of the disputed items, Globe is entitled to $1,275,433 for Building 2. This sum does not include the holdback that is not yet owed.
Globe paid $13,966 to Darin Thomsen Construction for re-roofing Building 3. Ex. 2 at 160. Because the Court finds Thomsen to be credible, it also finds that roof replacement was necessary. Globe is entitled to the full amount it paid.
This cost is the other half of the gas line installation cost associated with both Building 1 and Building 3. As the Court found for Building 1, two-thirds of this amount is not owed because trenching is not covered under the contract.
As with Building 1, the Court finds that no management fee was "actually spent" that was "necessary to repair" the damaged property. JPCS at 4. Globe is not entitled to this money.
In sum, Globe is entitled to $14,910 for Building 3 based on the Court's findings concerning the parties' disputed costs.
The Court concludes that damages for a breach of an obligation to pay money "is deemed to be the amount due by the terms of the obligation, with interest thereon." Cal. Civ. Code § 3302;
The Court finds that Globe is entitled to pre-judgment interest of ten percent per annum on the unpaid amounts for Buildings 1 and 3 from December 10, 2007 and on the unpaid amounts for Building 2 from January 31, 2013. Cal. Civ. Code § 3289(b).
Globe is entitled to $329,038 for the disputed costs attributable to Building 1, plus prejudgment interest of ten percent per annum from December 10, 2007. Globe is entitled to $1,275,433 for Building 2, which includes the costs listed in the Chart as undisputed, plus prejudgment interest of ten percent per annum from January 31, 2013 on the amount Nationwide has not yet paid. It does not include the depreciation holdback of $92,035 to which the parties agree Globe will be entitled once the building is completed. Globe is entitled to $14,910 for Building 3, plus prejudgment interest of ten percent per annum from December 10, 2007.
Within fourteen days of this order, the parties shall submit a joint proposed judgment that clearly states in dollar amounts how much money Nationwide owes Globe, by building, based on the findings in this order. The dates and rates of interest should be stated. The judgment should also account for the $92,035 holdback amount owed. If the parties cannot agree, they must submit separate proposed judgments with an explanation of the differences.
IT IS SO ORDERED.