In litigation, insurers often try to exclude or limit policyholders’ experts’ testimony. This can be an aggressive tactic aimed to take the wind out of the policyholders’ sails, since it is difficult to refute insurers’ expert conclusions without your own.
Recently, in the case of Liprie v. State Farm Fire & Casualty Company, State Farm attempted to strike the policyholder’s expert’s affidavit from the Court record and to exclude that expert’s testimony claiming that it was unreliable. No. 2:09–1607 (W.D. La. September 25, 2011). The case involves a property owned by the policyholder in Big Lake, Louisiana, that was insured by State Farm. On September 13, 2008, Hurricane Ike made landfall on the Gulf coast. On September 19, 2008, the policyholder’s insurance agent contacted State Farm and reported cracks in the ceiling, damage to the roof and various other damage. State Farm inspected the property on October 11, 2008. The adjuster discovered wind damage which caused missing ridge caps and shingles, and siding damage on the rear and front of the house. State Farm paid the insured for additional living expenses incurred as a result of the storm butnot for the wind damage to his residence since State Farm claimed the wind damages did not exceed the policy deductible.
In August 2009, the policyholder sent State Farm a July 20, 2009, report by Charles Norman related to damages caused by Hurricane Ike. The report included an estimate of wind damages totaling over $120,000. In September 2009, State Farm’s adjuster and the policyholder’s representatives met at the property for another inspection. State Farm determined that none of the items claimed as damages were the result of an “accidental direct physical loss,” as required by the insurance policy, and no evidence supported any payment due by State Farm. After the inspection, State Farm adjusted its estimate to account for one additional item of damage to a window that was not previously accounted for, but still determined that the damages did not exceed the hurricane deductible.
State Farm attempted to discredit the insured’s expert opinion by asserting that at the time of the re-inspection in 2009 with the policyholder’s representatives and expert, all of the repairs to the property had been completed. Of particular issue in the damages to the residence, was cracking of the sheetrock and the need for re-leveling the floor under the master bedroom.
The Court stated that it “finds no merit to State Farm’s arguments that [the policyholder’s expert’s] testimony and affidavit should be excluded because the inspection was performed after the repairs were completed, or that [his] opinion was unreliable or untimely.” The court denied State Farm’s motion to strike that affidavit and motion to exclude testimony.
In this case, the Court refused to exclude the expert testimony and allowed the case to proceed to trial for determination of whether the additional damage claims can be attributable to wind from Hurricane Ike. It nonetheless reveals the aggressive strategy employed by State Farm to attempt to attack the policyholder’s expert’s credibility and keep him from testifying in support of the damages claimed.
Sun Tzu was an ancient Chinese military general, strategist and philosopher who said “Invincibility lies in the defense; the possibility of victory in the attack.”