This is an insurance coverage dispute. Defendant Church Mutual Insurance Company (“Church Mutual”) insured Plaintiffs’ property. Hail damaged the property’s roof. The parties dispute whether the damage falls within Plaintiffs’ insurance policy, which precludes coverage for cosmetic damage.
Plaintiffs sought to exclude the expert testimony of Christine Conner, Mark Kubena, and Ronald Dutton on the grounds that they applied an extracontractual definition of “functional damage,” which, according to Plaintiffs, made their opinions unreliable and irrelevant. Plaintiffs also filed a motion to exclude Dutton’s supplemental expert report.
Forensic Engineering Expert Witness
Christine E. Conner has 10 years of engineering experience, including design, evaluation, inspection, and repair of residential and commercial buildings and other structures, with over 5 years of engineering training and forensic engineering experience in cause and origin failure analysis for structural damage; structural failures, construction deficiencies, roof damage, wind/hail damage, water intrusion, settlement, flooring failures, construction deficiencies, cladding and window failures, foundation damage, flood, surge and wind damage analysis, and preparation of technical reports with findings.
Civil Engineering Expert Witness
Mark Kubena is an engineer with expertise in the area of property damage causation and the determination of the appropriate scope of repairs for property damage.
Materials Science Expert Witness
Ronald J. Dutton has over 40 years of metallic-coated steel experience with which he provides technical services for product development, failure analysis, and product training for the metal construction industry. He has served in various trade organizations, including the National Coil Coating Association (NCCA) and the Zinc Aluminum Coaters Association (ZAC), and holds BS and MS degrees from Drexel University and Lehigh University.
Discussion by the Court
A. The Expert Reports Are Relevant and Reliable
The Court found that Conner, Dutton, and Kubena’s expert reports do not rely on extracontractual definitions of functional and cosmetic damage. They instead explained how the roof lacked certain types of functional damage. Thus, the expert reports opined that the roof had not been functionally damaged because its service life had not been reduced.
Basically, Church Mutual’s expert reports would help the jury determine whether the policy limitation applies. And they do not confuse the trier of fact by applying a different definition of functional/cosmetic damages. The Court declared these reports admissible.
B. Dutton’s Supplemental Report Is Inadmissible
Dutton’s supplemental disclosure is a three-page summary of a laboratory report that evaluated the hail damage to the Plaintiffs’ roof. Dutton stated that the lab report supports the conclusions from his original report and demonstrates that there is no evidence that the hail diminished the performance of the roof.
The Court found that Dutton’s report is not supplemental because it goes beyond filling the “interstices of an incomplete report” and instead introduces new laboratory testing results and new opinions.
Church Mutual offered a compelling explanation for the tardiness. Dutton did not receive the lab results until after submitting his initial expert report. Moreover, the testimony was important because it provided lab results that helped explain why the roof damage is cosmetic instead of functional.
Even though there is a compelling reason for the delay and the testimony is important, the Court will not admit it because Plaintiffs did not have time to produce rebuttal reports after Dutton disclosed the samples used in his supplemental report one week before the discovery deadline.
Held
The Court granted in part and denied in part the Plaintiffs’ motion.
Key Takeaways:
- None of the experts relied on an extracontractual definition of cosmetic or functional damage to reach their conclusions.
- Even though Dutton states that his supplemental findings support his original conclusions, they still offer new opinions, because they analyze new laboratory test results.
Case Details:
| Case Caption: | Cleburne Training & Fitness Inc Et Al V. Church Mutual Insurance Company |
| Docket Number: | 3:24cv410 |
| Court Name: | United States District Court, Texas Northern |
| Order Date: | April 10, 2025 |
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