The case arises out of a claim for total replacement of a concrete tile roof due to hail damage under a businessowners insurance policy for a dental office at 550 24th Ave. SW in Norman (the “Property”). The hailstorm occurred on
April 28, 2021.
Defendant filed a Daubert motion to strike and exclude certain opinions and testimony of Fred Lupfer, a public adjuster engaged by Plaintiff as an expert witness. Defendant specifically objected to the following three opinions expressed by Lupfer: (1) opinions regarding the methodology and findings of Daniel Hillner, an engineer retained by Defendant who inspected Plaintiff’s property during claims handling; (2) opinions regarding the sufficiency of the claims handling in this case; and (3) opinions on questions of law and legal interpretation of the subject insurance contract in this case (Policy).
Insurance Expert Witness
Fred Lupfer is a licensed public adjuster in Texas with decades of commercial and residential construction experience. He has held a HAAG Commercial Roofing Certification since 2019, and has been a certified property appraiser and umpire since 2018. Starting a young age and throughout his life, he has been in and round the construction industry in a variety of ways. Some of those ways include project management, budgeting, estimating, contract negotiating, supervision, working with engineers and architects, and scheduling of subcontractors. He has also physically worked as a part of a crew in almost every aspect of construction from, framing, plumbing, electrical, concrete placement and finishing, roofing, sheetrock, and painting. The projects he has been involved with have varied from multimillion-dollar commercial buildings to residential remodels, including the building of multiple personal residents.
Discussion by the Court
The Defendant had asserted that Lupfer was not qualified to provide opinions regarding Hillner’s methodology as Lupfer lacked a engineering license and no engineer had supported his conclusions. It was specifically argued that Lupfer could not determine how an engineer would incorporate weather data into his assessment of storm damage, nor had the technical training to discredit Hillner’s opinion based on his speculation and conjecture that Hillner did not consider wind. After reviewing the submissions from both parties and considering Lupfer’s experience as a public adjuster, the Court concluded that Lupfer was indeed qualified to review, assess, and express opinions on Hillner’s report. Additionally, the Court noted that the majority of Hillner’s report did not seem to rely on specialized engineering knowledge. Any objections from the Defendants regarding Lupfer’s opinions were deemed to pertain to the weight, not the admissibility, of those opinions. It was further determined that Defendants could thoroughly question Lupfer during cross-examination regarding any alleged deficiencies in his opinions. Despite Defendant’s contention that Lupfer’s opinions might be improper credibility opinions, the Court found that Lupfer’s opinions were not improper credibility opinions but rather typical opinions offered by an opposing expert.
Defendant also asserted that Lupfer was not qualified to opine on the sufficiency of Defendant’s claims handling. In its response, Plaintiff states that it did not intend to solicit any opinions from Lupfer concerning the handling of Plaintiff’s claim and that Lupfer would not critique Defendant’s claim handling. The Court, therefore, deemed that portion of Defendant’s Daubert motion moot.
Plaintiff, however, stated in its response that Lupfer would be presenting opinions concerning the substantive information and documentation upon which Defendant and its adjuster relied in the context of his expertise followed by his own observations of Plaintiff’s property. The Court deemed Lupfer sufficiently qualified with decades of commercial and residential construction experience to his credit. The Court, once again, held that the objections raised by the Defendant called into question the weight of Lupfer’s opinions, instead of its admissibility. Defendants were presented with ample opportunity to thoroughly question Lupfer regarding any alleged deficiencies in his opinions during cross-examination.
The Defendant had asserted that any opinions on questions of law or the legal interpretation of the Policy invaded the province of the jury and that such testimony would not be helpful. It was specifically stated by the Defendant that they were not moving to exclude Lupfer’s testimony regarding what he believed damaged the Property or which standards applied to the determination of hail damage. However, objections were raised to any testimony by Lupfer concerning what constituted “direct physical loss” under the policy.
The Court reviewed Lupfer’s expert report and the parties’ submissions before determining that Lupfer did not appear to be offering prohibited legal opinions. It was noted that Lupfer did not opine on whether Defendant breached the Policy, that the damage must be covered by the Policy, or that Defendant’s actions were unreasonable. The jury was tasked with determining whether that loss/damage was covered by the Policy.
Held
The Court denied Defendant’s Daubert motion to exclude certain opinions of Plaintiff’s Expert Fred Lupfer.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
The case underscores the importance of ensuring that expert witnesses possess the requisite qualifications and relevant experience to offer opinions on the matter at hand. In this instance, the Court carefully assessed Lupfer’s qualifications, ultimately deeming him qualified based on his extensive background as a public adjuster and decades of experience in commercial and residential construction. Additionally, it was crucial for expert witnesses to confine their testimony within the bounds of their expertise and avoid delving into areas requiring legal interpretation or exceeding their qualifications. Lupfer’s testimony was scrutinized to ensure it remained within the scope of his expertise and did not venture into areas of legal interpretation. The Court also emphasized the importance of expert opinions being grounded in factual observations rather than legal conclusions or subjective judgments. Lupfer’s opinions were deemed acceptable as they were based on his observations of the property and the substantive information and documentation provided. Furthermore, the Court underscored the necessity of providing the opposing party with ample opportunity to cross-examine the expert witness to challenge their opinions and highlight any perceived deficiencies. In conclusion, while expert testimony is invaluable in legal proceedings, it must be carefully evaluated to ensure relevance, reliability, and adherence to the expert’s qualifications and the scope of their expertise.
Case Details:
| Case Caption: | Oklahoma Dental Properties Llc V. Ace Property And Casualty Insurance Company |
| Docket Number: | 5:22cv815 |
| Court: | United States District Court, Oklahoma Western |
| Citation: | 2024 U.S. Dist. LEXIS 24666 |
| Order Date: | January 29, 2024 |
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