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Nesavich v. Auto-Owners Insurance Co.

United States District Court, D. Colorado

April 3, 2018

JOHN NESAVICH d/b/a Nesavich Properties LLC, JUDY NESAVICH d/b/a Nesavich Properties LLC, and NESAVICH PROPERTIES, LLC, Plaintiffs,
v.
AUTO-OWNERS INSURANCE COMPANY, Defendant.

          ORDER

          SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' Motion for Leave of Court to Make Supplemental Non-Retained Expert Disclosures (the “Motion”) [#66], which was referred to this Court [#67]. The Court has considered the Motion and related briefing, arguments made at the January 19, 2018 Motion Hearing, the case file, and the applicable case law. For the following reasons, the Court DENIES the Motion.[1]

         I. BACKGROUND

         This case arises out of an insurance coverage dispute between Plaintiffs and their property insurance provider, Defendant Auto-Owners Insurance Company, related to damage allegedly sustained by the property as a result of a hail/wind storm on or about May 21, 2014. [#2 at ¶¶ 2-3, 7] The parties dispute the scope of the damage caused by the May 21, 2014 hail/wind storm. [See, e.g., id. at ¶ 13]

         On May 17, 2016, Plaintiffs filed the instant litigation in Colorado state court [#2], which Defendant removed to this Court on June 17, 2016 [#1]. The Court entered a Scheduling Order on December 14, 2016, which set May 1, 2017 as the deadline for affirmative expert disclosures, June 1, 2017 as the deadline for contradicting expert disclosures; and July 1, 2017 as the deadline for service of rebuttal opinions. [#25] The discovery cut-off was set for August 1, 2017. [Id.] On May 1, 2017, the Court granted a request to modify the Scheduling Order to extend each of those deadlines by one month. [#30] On June 1, 2017, Plaintiffs disclosed a single expert witness, Steve Patrick, to testify regarding bad faith denial of insurance. [#66 at 2] On June 30, 2017, Defendant disclosed the following six expert witnesses: (1) William Badini, a retained expert meteorologist; (2) Peter Marxhausen, a retained forensic engineer; (3) Jon F. Sands, a retained legal expert; (4) Travis Epley, a non-retained claims adjuster; (5) Steve Boyd, a non-retained engineer; and (6) Brian N. Standjord, a non-retained engineer. [#66-1] The Court subsequently granted several extensions of the discovery period [#35, 39, 53, 64], which ultimately closed on February 9, 2018 [#64].

         On April 10, 2017, Plaintiffs filed a Motion for Defendant to Submit to the Appraisal Provision Pursuant to the Terms of Its Policy and Motion to Stay Proceedings Pending Completion of Appraisal (the “Motion for Appraisal”). [#26] On October 2, 2017, while the Motion for Appraisal was still pending, Defendant filed a Motion for Summary Judgment. [#36] Of relevance here, Defendant's Motion for Summary Judgment argues that “Plaintiffs' failure to endorse any expert witness to testify that the purported damage[s] to [the] roof of the Property was a direct physical result of a May 21, 2014, hailstorm precludes any additional coverage under the Policy” and that “Plaintiff[s'] failure to endorse any experts to refute [Defendant's] engineers' repair recommendations for limited damage to the HVAC systems and windows, also precludes any claims for additional, more expensive repair demands from the Plaintiffs.” [#36 at 1] On October 24, 2017, Plaintiffs responded to the Motion for Summary Judgment, arguing, in relevant part, that “Plaintiffs need not endorse an expert in this case to prove the physical damages alleged in the Complaint.”[2] [#42 at 10] On November 7, 2017, Defendant filed its reply in support of the Motion for Summary Judgment, “disagree[ing] with Plaintiffs' assertion that no expert testimony is necessary to prove damages and causation in this case.”[3] [#47 at 8]

         On December 27, 2017, almost seven months after the June 1, 2016 deadline for affirmative expert disclosures, Plaintiffs served Defendant with their Second Supplemental Federal Rule of Civil Procedure 26(a)(2) Expert Disclosures (the “Supplemental Disclosure”). [#66-2] The Supplemental Disclosure purports to disclose three non-retained expert witnesses: (1) David Draper, an engineer hired to evaluate the mechanical systems at Plaintiffs' property; (2) Steven Thomas, who performed forensic roof desaturation analysis on the roofs of the property; and (3) Jason Price, the public adjuster for Plaintiffs prior to the commencement of the litigation (collectively, the “Unretained Expert Witnesses”). [Id.] On December 28, 2017, Plaintiffs filed the instant Motion seeking leave of the Court to make the Supplemental Disclosure of the Unretained Expert Witnesses. [#66] On January 11, 2018, Defendant responded to the Motion [#69], and Plaintiffs then filed a reply in support of the Motion [#70]. The Court heard oral argument on the Motion on January 19, 2018. [#71, 73]

         On March 29, 2018, this Court conducted the Final Pretrial Conference and entered the Final Pretrial Order. [#88, 89] On that same day, the Presiding District Judge denied Plaintiffs' Motion for Appraisal. [#90] Defendant's Motion for Summary Judgment remains pending before the Court. The Trial Preparation Conference is set for July 27, 2018 and a five-day jury trial is set to commence on August 13, 2018. [#88]

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 26 provides, in relevant part, that a party “must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.”[4] Fed.R.Civ.P. 26(a)(2)(A). Such disclosures must be made “at the times and in the sequence that the court orders. Fed.R.Civ.P. 26(a)(2)(D). Rule 26(e) provides:

A party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.

         Federal Rule of Civil Procedure 37(c) states, in relevant part, that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, ...


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