United States District Court, D. Colorado
SUNFLOWER CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation, Plaintiff,
OWNERS INSURANCE COMPANY, Defendant.
DAUBERT ORDER REGARDING PLAINTIFF'S EXPERT JASON
William J. Martínez, United States District Judge.
insurance dispute arises from a wind and hail storm which
occurred on September 29, 2014. (ECF No. 62 ¶¶
14-15.) The storm damaged the roofs, gutters, and screens on
some of the condominiums and garage structures managed by
Plaintiff Sunflower Condominium Association
(“Plaintiff”). (Id.) Plaintiff's
property was insured by Defendant Owners Insurance Company
(“Defendant”) and Plaintiff claims that the
damage is covered under the policy (“Insurance
Contract”). (Id. at ¶¶ 16, 21.)
Plaintiff claims that Defendant “failed to pay
[Plaintiff] in accordance with the promises set forth in the
Insurance Contract” and brought this action suing
Defendant for breach of contract and bad faith. (Id.
raised counterclaims for breach of contract and recoupment
based on Plaintiff's alleged fraud or misrepresentation
in violation of the Insurance Contract. (See ECF No.
136.) In a previous Order (ECF No. 149), the Court denied
Plaintiff's Motion for Summary Judgment on
Defendant's counterclaims (ECF No. 93) and granted
Defendant's Motion for Summary Judgment on
Plaintiff's claims in its entirety (ECF No. 94). Thus,
the only surviving claims at this point in this litigation
are Defendant's counterclaims.
before the Court is Defendant's Motion to Exclude
Testimony of Jason Domecq under Federal Rule of Evidence 702.
(ECF No. 84 (“Motion”).) For the reasons set
forth below, Defendant's Motion is denied.
expert's proposed testimony must be shown to be relevant
and otherwise admissible. See Adamscheck v. Am. Family
Mut. Ins. Co., 818 F.3d 576, 588 n.7 (10th Cir. 2016).
To be relevant, expert testimony must “logically
advanc[e] a material aspect of the case” and be
“sufficiently tied to the facts of the case that it
will aid the jury in resolving a factual dispute.”
United States v. Garcia, 635 F.3d 472, 476 (10th
Cir. 2011) (brackets in original).
Defendant first argues that Jason Domecq's (Domecq)
opinions regarding the value of Plaintiff's loss
“do not fit in this case.” (ECF No. 84 at 3.)
Defendant claims that the plain language of the policy
provides that the value of Plaintiff's loss must be
determined as of the date of loss. (Id. at 4.)
Meanwhile, Domecq's valuation of the loss is based on
data from nearly three years after the date of loss.
(Id. at 9.) Domecq stated that “prices, labor,
availability, everything has just changed, ” between
2014, when the loss occurred, and 2017, when Domecq developed
his estimate relying on then-current data. (ECF No. 84-7 at
131.) Moreover, in his deposition, Domecq agreed that he
could not provide “a precise number today based on 2014
data.” (ECF No. 84 at 10.) Defendant contends that
Domecq's testimony is therefore “not helpful to the
trier of fact in determining any issue in this
litigation.” (Id. at 9.)
also argues that “Domecq's opinions about the value
of Plaintiff's loss are based on unreliable methods or
data, ” because “the data [Domecq] intends to
rely on is materially different from the data relevant to the
facts of the case.” (Id. at 10 (citation
Response, Plaintiff argues that Defendant's challenge is
not the proper issue for a Daubert motion. (ECF No.
91 at 2.) First, Plaintiff argues that Defendant's
challenge regards Domecq's credibility, rather than the
admissibility of his opinions, because Defendant
“challenges only the factual data utilized by [Domecq]
in preparing his estimate with Xactimate software-namely the
time period of June 2017.” (Id. at 2, 4.)
Second, Plaintiff argues that “Defendant's
challenge is based on Defendant's own tortured
construction of the [Insurance Contract], and contract
interpretation is a question of law for the Court, not the
proper subject of a Daubert motion.”
(Id. at 5.) Plaintiff maintains that the Insurance
Contract is “plain and unambiguous and requires covered
losses to be paid at [replacement cost value] measured as of
the date of the payment.” (Id. at 6.) Finally,
Plaintiff argues that Defendant's retained estimator
measured replacement cost value as of May 2016, supporting
Plaintiff's position that recovery estimates should be
based on recovery cost value on the date of payment.
Court does not reach the question of whether the Insurance
Contract requires that estimates be based on replacement cost
value at the time of loss or at the time of payment. The
actual relief requested in Defendant's Motion is moot,
because the purpose of the Domecq's testimony would be to
support Plaintiff's claims for damages, but
Plaintiff's claims have been dismissed from the case.
However, nothing in this Order should be read to preclude
testimony by Domecq as to the preparation of his report,
which may still be relevant to Plaintiffs defenses to
Defendant's counterclaims (i.e., not as evidence
that his opinions should be accepted, but as evidence of
Plaintiffs intent when commissioning his appraisal and later
submitting it to Defendants.
reasons set forth above, the Court ORDERS as follows:
Defendant Owners Insurance Company's Motion to Exclude
Testimony of Jason Domecq under Federal ...