MARGO K. BRODIE, District Judge.
Plaintiffs Paul and Annette Fabozzi commenced the above-captioned action against defendant Lexington Insurance Company ("Defendant"), John Does 1-10 and ABC Corps. 1-10,
On October 26, 2012, Defendant filed a motion in limine to preclude the testimony of Plaintiffs' experts, and to dismiss the Complaint for Plaintiffs' inability to offer prima facie proof of a covered loss or damages absent such expert testimony. At a conference on February 20, 2013, the Court precluded Plaintiffs from offering expert testimony but requested briefing as to the admissibility of lay opinion testimony by Plaintiffs' witnesses as to conclusions drawn from their observations. (Minute Entry dated February 20, 2013.) At oral argument on June 5, 2013, the Court held that Plaintiffs' witnesses would be permitted to testify regarding their personal factual knowledge based on their observations but would not be permitted to offer any conclusions or opinions. (Minute Entry dated June 5, 2013.) The Court requested additional briefing on Defendant's argument that, absent expert testimony, Plaintiffs could not establish a prima facie breach of contract claim warranting dismissal of the Complaint. (Id.) For the reasons discussed below, Defendants' motion to dismiss the Complaint is denied.
The Court assumes familiarity with the underlying facts, as set forth in the March 2012 Decision. Only the facts necessary for the resolution of the instant motion are included below.
Plaintiffs own a beachfront home (the "Property") located on the Raritan Bay of Staten Island, New York. (Pl. 56.1 ¶ 11; Def. Reply 56.1 ¶ 11.) In 2002, Plaintiffs renewed their insurance policy (the "Insurance Policy") with Defendant for a twelve month term from April 1, 2002 to April 1, 2003 for the Property. (Insurance Policy, annexed to the declaration of Brian J. Bolan dated Aug. 30, 2012 ("Bolan Decl.") as Ex. F.)
At some point between September 2001 and May 2002, Plaintiffs noticed that their home suffered from "serious structural problems." (March 2012 Decision 3.) The parties dispute the date that Plaintiffs discovered these problems. (Id.) Plaintiffs allege that in April 2002, they noticed damage to the Property, including cracks in the walls, and that the floors were pitched toward the rear of the house. (Pl. 56.1 ¶ 13.) In April 2002, the Property was "propped up for support to prevent it from collapsing." (Id.) In May 2002, portions of the foundation were exposed.
By mid-May 2002, the structural problems forced Plaintiffs to leave their home. (March 2012 Decision 4.) On May 13, 2002, Plaintiffs made a claim under the Insurance Policy, (Pl. 56.1 ¶ 15; Def. Reply 56.1 ¶ 15), which Defendant denied by letter sent to Plaintiffs on July 24, 2004, (March 2012 Decision 4). Defendant stated that the losses claimed by Plaintiffs were caused by "wear and tear, deterioration, inherent vice, latent defect, wet and/or dry rot, as well as earth movement, and the settlement, shrinking, bulging or expansion of [the P]roperty, leading to cracking of structural components thereof." (Docket Entry No. 47 Ex. H.)
According to Plaintiffs, Defendant used a form policy from Insurance Services Office, Inc. ("ISO"), an industry organization. (Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss ("Pl. Opp'n
The Insurance Policy is comprised of several schedules and endorsements. Under "Coverage A — Dwelling," Plaintiffs' residence was insured in the amount of $1,511,200 for all direct physical loss. (Insurance Policy 2, Declarations Page.) However, Coverage A specifies that it did not cover loss "involving collapse, other than that provided in Additional Coverage 8," loss caused by "wear and tear, marring, deterioration," "settling, shrinking, bulging or expansion," or loss "[e]xcluded under Section I — Exclusions." (Id. at 6-7.) "Additional Coverage 8" states in pertinent part:
(Id. at 5.) The Insurance Policy also includes several exclusions ("Section I — Exclusions"), excluding loss resulting from, inter alia, earth movement, water damage, power failure, neglect and war. (Id. 8-9.)
Under New York law, "an insurance contract is interpreted to give effect to the intent of the parties as expressed in the clear language of the contract." Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42 (2d Cir.2006) (citation and internal quotation marks omitted); see also Goldberger v. Paul Revere Life Ins. Co., 165 F.3d 180, 182 (2d Cir.1999) ("In New York State, an insurance contract is interpreted to give effect to the intent of the parties as expressed in the clear language of the contract." (citation and internal quotation marks omitted)). If the terms are unambiguous, courts should enforce the contract as written. See Parks Real Estate, 472 F.3d at 42; Goldberger, 165 F.3d at 182 (quoting Village of Sylvan Beach v. Travelers Indemnity Co., 55 F.3d 114, 115 (2d Cir.1995)). However, if the contract is ambiguous, "particularly the language of
The parties dispute the type of policy at issue, and, thus, the corresponding evidentiary burdens.
"Additional Coverages 8" covers direct physical loss caused by collapse only if the collapse was caused "by one or more" of several enumerated perils, including hidden decay. (Insurance Policy 5.) By its clear and unambiguous terms, "Additional Coverages 8" provides "named perils" coverage. See TAG 380, LLC v. ComMet 380, Inc., 10 N.Y.3d 507, 513, 860 N.Y.S.2d 433, 890 N.E.2d 195 (2008) ("`Named-perils' covers only specifically enumerated risks.") Under "Additional Coverages 8," it is Plaintiffs' burden to show not only a covered loss — collapse — but also that the covered loss was caused by a covered peril — such as hidden decay. See Rapid Park Indus. v. Great N. Ins. Co., No. 09-CV-8292, 2010 WL 4456856, at *2 (S.D.N.Y. Oct. 15, 2010) ("Under a `named perils' policy, it is the insured's burden to show that its loss was caused by a covered peril."), aff'd, 502 Fed.Appx. 40 (2d Cir.2012). Here, it is undisputed that Plaintiffs claim that the Property "collapsed,"
In Residential Mgmt. (N.Y.) Inc. v. Fed. Ins. Co., evaluating similar policy language, the court, in granting summary judgment to the defendant-insurer, stated that the plaintiff-insured "offered no evidence the alleged collapse was caused by `[d]ecay that is hidden from view' or any other causes of loss as provided under the Additional Coverage for Collapse section." Residential Mgmt. (N.Y.) Inc. v. Federal Ins. Co., 884 F.Supp.2d 3, 10 (E.D.N.Y. 2012). Although, as Plaintiffs note, the court in Residential Mgmt. did not state whether it was the plaintiff-insured's initial or ultimate burden, the court did hold that the plaintiff-insured failed "to meet the requirements under the Additional Coverage" provision of the insurance policy. Id.
Defendant argues that Plaintiffs cannot establish collapse or collapse by a particular cause without expert testimony. (Def. Reply Mem. 10.) Plaintiffs contend that expert testimony is not required. (Pl. Opp'n Mem. 6.)
Defendant argues that under New York Law, expert testimony is required where the information to be presented is beyond the ken of lay witnesses. (Def. Reply. Mem. 12.) However, Defendant draws this principle from caselaw involving medical testimony. See Amorgianos v. National R.R. Passenger Corp., 137 F.Supp.2d 147, 160 ("Under New York law, when the determination of whether an illness or injury was caused by some event or conduct is `presumed not to be within common knowledge and experience,' a plaintiff must produce expert opinion evidence `based on suitable hypotheses' in order to support a finding of causation.") (quoting Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 396, 34 N.E.2d 367 (1941)); Meiselman, 34 N.E.2d at 370 ("Ordinarily, expert medical opinion evidence, based on suitable hypotheses, is required, when the subject-matter to be inquired about is presumed not to be within common knowledge and
Defendants cite to only two New York state cases involving real property. In Holy Name of Jesus Roman Catholic Church v. New York City Transit Authority, the plaintiff sued the defendant claiming that vibrations from the defendant's subway lines caused damage to the sidewalk abutting the plaintiff's real property. Holy Name of Jesus Roman Catholic Church, 28 A.D.3d 520, 813 N.Y.S.2d 197, 198 (2006). The defendant produced expert testimony showing that the subway vibrations could not have caused the damage while the plaintiff only presented deposition testimony from a reverend and the affirmation of its counsel. Id. The Second Department, Appellate Division found the plaintiff's evidence "merely offered speculation" and granted the defendant's motion for summary judgment. Id. While this case may stand for the proposition that mere speculation cannot defend against competent expert testimony, it does not support Defendant's argument that collapse or the cause of the collapse of real property can only be proven by expert testimony. In Spoiled Trucks and Cars Corp. v. C & N Realty Development LLC, the court had before it a spoliation motion by the defendant seeking dismissal of the plaintiff's claim alleging property damage to his premises due to plaintiff's demolition of the property in question. Spoiled Trucks & Cars Corp. v. C&N Realty Development LLC, No. 22404/06, 2011 WL 6738859 (Sup.Ct. Sept. 28, 2011). The court found that the defendant had established a prima facie case that spoliation sanctions were appropriate as the subject building was "critical physical proof." Id. at *3. The court held that the plaintiff failed to "proffer other suitable evidence" establishing the "cause of the damage" and further noted that "[e]vidence that defendant's construction work caused property damage or injury must be supported by more than observations of a lay witness and where there is no expert evidence submitted in support, plaintiff's assertion that the building was unsafe amount[s] to no more than mere speculation." Id. at *4 (citing Holy Name of Jesus Roman Catholic Church, 813 N.Y.S.2d at 197). Defendants also cite to foreign authority directly supporting their position. See Guyther v. Nationwide Mut. Fire Ins. Co., 109 N.C. App. 506, 428 S.E.2d 238, 243 (1993) ("Because a lay person does not possess the technical knowledge and skill required to form an opinion concerning the cause of the collapse of a building, lay opinion testimony on the subject is not admissible.")
Although expert testimony may normally be preferred in cases involving the cause of property damage, absent any binding authority stating otherwise, the Court is unwilling to conclude that such testimony is required as a matter of law. It is not difficult to imagine that in some instances the cause of a building's collapse may be so apparent that no special knowledge is required, allowing a jury to decide the specific cause based on testimony from lay observations. Plaintiffs argue that such is the case here. (Pl. Opp'n Mem. ("This is a case where the collapse was observable and documentable by an everyday, average person.")); see Meiselman, 34 N.E.2d at 370 ("but where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary"); see also Qualls v. State Farm Lloyds, 226 F.R.D. 551, 558 (N.D.Tex.2005) (finding that expert testimony
Defendant argues that Plaintiffs cannot establish damages without expert testimony. (Def. Mem. 8-9.) Plaintiffs concede that expert testimony may be required for property damage resulting in "partial loss," but argue that where a "total loss" is alleged, an insurer must pay the full amount owed as a result of the loss. (Pl. Opp'n Mem. 10-11.) Plaintiffs believe they have suffered a total loss and that they can prove the value of their loss without expert testimony. (Id. at 11.) Plaintiffs concede that, after presenting their case, if Defendant believes that Plaintiffs have not met their burden, Defendant will be free to move for a directed verdict. (Id.)
The Court finds no binding authority, nor does Defendant cite to any, supporting its position. The cases Defendant does cite are unhelpful. See Wantanabe Realty Corp. v. City of New York, No. 01-CV-10137, 2004 WL 27720, at *4 (S.D.N.Y. Jan. 5, 2004) (finding the proposed testimony of an "expert" to be inadmissible but making no claim that expert testimony is required to show damages); Gass v. Agate Ice Cream, 264 N.Y. 141, 143, 190 N.E. 323 (1934) (stating that "damages sustained by an automobile in a collision may be established by showing the reasonable cost of the repairs necessary to restore it to its former condition" but not stating whether expert testimony is required to do so); Farrell v. Klapach, 24 A.D.2d 590, 262 N.Y.S.2d 203 (1965) (overturning a jury verdict as to nominal damages but not stating whether expert testimony was required to prove said damages).
Defendant does identify two cases from district courts in Wisconsin, which are more on point. See Wickman v. State Farm Fire & Cas. Co., 616 F.Supp.2d 909, 920 (E.D.Wis.2009) (holding that an assessment of the feasibility and cost of repairing real property "require[s] technical or other specialized knowledge beyond that of the ordinary layperson"); Talmage v. Harris, No. 03-CV-0658, 2005 WL 696976, at *2 (W.D.Wis. Mar. 25, 2005) (noting, in a fire loss damage case, that the "claimant must show that rebuilding or replacing a specific part or fixture of the building was necessitated by the fire and that the new structure does not represent a larger or improved structure or, if it does, what portion of the cost of the new structure is fairly attributable to the loss," and finding it "unlikely that a plaintiff could make such a showing without an expert witness"). However, here, Plaintiffs are attempting to recover for the total loss of the Property, rather than a partial loss, undercutting the need for expert testimony. See Kates Grp. v. New York Prop. Ins. Underwriting Ass'n, 128 A.D.2d 838, 839, 513 N.Y.S.2d 757 (1987) (finding that the plaintiff had presented a prima facie case for total loss based on lay witness testimony and a New York Fire Department report of the fire). Defendant argues that Plaintiffs cannot merely allege a total loss without supporting evidence. (Def. Reply. Mem. 17.) The sufficiency of Plaintiffs' evidence is not currently before
For the foregoing reasons, the Court denies Defendants' motion in limine seeking dismissal of the Complaint.
SO ORDERED.
The Court is aware of one other case within this Circuit that has recognized a "hybrid" policy. In N. Am. Foreign Trading Corp. v. Mitsui Sumitomo Ins. USA, Inc., the court recognized, in the "marine insurance policy" context, that "[a] policy may provide both all-risks and named-perils coverage, depending on the type of shipment at issue." North American Foreign Trading Corp. v. Mitsui Sumitomo, 413 F.Supp.2d 295, 300 (S.D.N.Y. 2006). The plaintiff, an importer of consumer goods manufactured in Asia, purchased an insurance policy from the defendant, covering shipments of goods leaving Asia. Id. at 297. The standard terms of the insurance policy only covered goods while in transit. Id. at 302. The insurance policy also included a "shore clause" which limited loss coverage of goods "while on docks, wharves or elsewhere on shore" to certain named perils. Id. Thus, the insurance policy at issue in N. Am. Foreign Trading Corp. provided for "all risk" coverage while the goods were in transit but only "named peril" coverage while the goods were on shore.
Plaintiffs argue that the burden to show causation was the defendant-insurer's because the First Department stated that the applicability of the latent defect exclusion would not have been established even if there were no coverage for collapse caused by the weight of rain as the defendant-insurer "utterly failed to support its claims." (Pl. Sur-Reply Mem. 4. (quoting Seward Park, 836 N.Y.S.2d at 102-03).) However, the First Department language cited to by Plaintiff only stands for the unremarkable proposition that under an all-risk policy, a defendant-insurer must show that the excluded peril proximately caused the loss at issue. See Channel Fabrics, 2012 WL 3283484, at *10. Without more information concerning the prima facie burdens applied, this case is of little help in assessing whether the initial burden of causation is Plaintiffs' or Defendant's in the instant action.