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Amplatz v. Country Mutual Insurance Co.

United States Court of Appeals, Eighth Circuit

May 25, 2016

Maria Amplatz, Plaintiff - Appellant
v.
Country Mutual Insurance Company, Defendant - Appellee

         Submitted February 10, 2016.

          Appeal from United States District Court for the District of Minnesota - Minneapolis.

         For Maria Amplatz, Plaintiff - Appellant: Adina R. Bergstrom, Sauro & Bergstrom, Oakdale, MN; Meghan M. Rodda, Brenda M. Sauro, Oakdale, MN.

         For Country Mutual Insurance Company, Defendant - Appellee: Michael Gregory Simpson, Leatha G. Wolter, Meagher & Geer, Minneapolis, MN.

         Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

          OPINION

         BEAM, Circuit Judge.

         A jury awarded Maria Amplatz, an insured under a commercial-property insurance policy issued by Country Mutual Insurance Company, $76,065.50 for covered hail and wind damage to the exterior of two properties, but it found that the policy did not cover water damage to the interiors. Amplatz now appeals the district court's[1] denial of a subsequent motion for new trial on the bases of excluded expert evidence and the jury instructions, and its entry of judgment on the verdict. We affirm.

         I. BACKGROUND

         Amplatz owns four residential, rental properties that are covered under the policy. A hail storm damaged the properties on July 17, 2010, and Amplatz sought coverage for the cost of replacing the damaged portions of the homes. Country disputed Amplatz's claims, and the dispute proceeded to jury trial on two of the properties: the " Game Farm Circle" and " Cherry Avenue" properties. The parties did not dispute that hail and wind damage to the properties' exteriors constituted a covered loss under the policy; they instead disagreed on the amount of coverage and whether the policy covered water damage to the properties' interiors. Amplatz contended that damage to the roofs and windows of the properties allowed water to seep inside and that the resulting interior water damage was a covered loss. Country maintained that water leaked into the properties because of deferred maintenance, not hail damage, and so refused to cover the interior damage.

         Amplatz enlisted Paul Norcia, a public adjuster, and Gregory Phillips, a roofing consultant, to assess the damage. Norcia first inspected the properties in September 2011 and issued a written expert report in February 2014. His report described hail and wind damage to both properties' exteriors, particularly the roofs. Norcia observed interior water damage at both properties, and based on its location and its appearance shortly after the storm, he concluded it resulted from water entering the homes through the external damage. He also concluded that the roofs and other items at both properties should be replaced. Phillips issued an expert report in January 2014 based solely on his review of Norcia's and Country's reports, and photographs of the properties. In that report, he opined regarding the Game Farm Circle property that " [w]ater intrusion within the home may be the result of defects within the . . . roof caused by wind and hail impact." The report did not mention water damage to the Cherry Avenue property's interior but did note that the roof was damaged and concluded that it needed either major repair or replacement. Phillips wanted to take a core sample of the Cherry Avenue property's roof to determine how it was constructed, but snow and ice prevented him from doing so at the time of his initial report. He went to the Cherry Avenue property in May 2014 to take the samples. The samples revealed the presence of moisture both within a top roof layer and an older layer beneath it, which Phillips believed indicated that the roof needed to be replaced rather than merely repaired. The parties deposed Phillips on June 3, 2014. He mentioned his findings with respect to the Cherry Avenue property; however, counsel for Country objected to Phillips's mention of those findings without a supplemental report. Phillips did draft a supplemental report on June 16, 2014, but Amplatz did not disclose it at that time.

         Country's adjuster, Mike Laramee, was not of the opinion that water entered the properties through hail and wind damage. At the Game Farm Circle property he observed poor caulking, ill-fitting gaskets, gaps between window glass and frame, and a roofing membrane unattached to a bordering parapet wall. He also observed that the location of the water damage was near the fireplace chase[2] and an area where some roofing membrane connected to an adjacent, cedar-shake roof. At the Cherry Avenue property he noted the roof was in poor condition " as a result of normal weathering and deferred maintenance" and again observed that the interior water damage occurred near the fireplace chase. Finding no external damage through which water could enter into the properties' interiors, Laramee concluded that the cause of the interior water damage was deferred maintenance. Country also enlisted a roofing consultant, David Balistreri, who corroborated many of Laramee's opinions and offered his own as to whether certain items needed to be replaced.

         Amplatz commenced this action in Minnesota state court and Country removed it to federal district court in July 2012 under diversity jurisdiction. The original June 1, 2013, deadline for Amplatz to disclose expert witnesses and reports was postponed, largely on stipulation of the parties, six times, and the final amended progression order set the deadline at February 3, 2014. On December 10, 2014, Amplatz served

         Country with supplemental expert reports from both Norcia and Phillips. The supplemental report from Norcia included updated damages calculations for each property based both on updated pricing for materials and on the inclusion of interior water damage not presented in Norcia's original report. The supplemental report for Phillips was the as-yet-undisclosed, June 2014 report Phillips drafted addressing the core-sampling results from the Cherry Avenue property. Besides the presence of moisture in the roof, the report also included Phillips's observation of interior water damage to the Cherry Avenue property directly below areas in the roof where he found hail damage and moisture. At that time, jury trial was set for January 6, 2015, making the supplemental reports untimely not only in terms of the progression order but also under Federal Rule of Civil Procedure 26(a)(3)(B)'s requirement that such disclosures be made at least thirty days before trial. Subsequently, the trial was postponed to January 12, 2015, due to Amplatz's counsel's illness.

         Country moved in limine to exclude the supplemental Norcia and Phillips reports. The district court first noted that although Amplatz's disclosure was untimely under the federal rules at the time it was served, it would not exclude the reports on this basis because Country had at least thirty days' notice due to the extension of the trial date. The district court then excluded any new items of damage in Norcia's supplemental report, stating, " it is far too late for Amplatz to raise new items of damage she has not previously claimed." The district court also excluded from the Phillips report " [e]vidence regarding the moisture in the roof as a justification for Amplatz's insistence that the roof must be replace[d]." It observed, " Amplatz offers no credible excuse as to why she did not provide this supplemental report to Country at the time it was drafted" in June 2014. The district court concluded that " [i]t would be prejudicial to Country to allow Amplatz to raise a new theory as to why replacement rather than repair is required as to the Cherry Avenue property" because Country did not have the opportunity to explore the moisture-in-the-roof theory of ...


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