Greater New York Mutual Insurance Co. unsuccessfully argued that its policyholder’s property damage predated a July 2022 storm. (Credit: ©bluraz/Adobe Stock)
A federal judge allowed an Illinois condominium association's lawsuit against its insurer to continue this week and said a jury should decide if an insurance company is on the hook for a July 2022 storm that damaged 16 residential condominium buildings.
U.S. District Judge Matthew F. Kennelly for the Northern District of Illinois denied a motion for summary judgment from the Greater New York Mutual Insurance Co. against its policyholder, the Heritage Park Condominium Association. The condo association sued its insurer for breach of contract and claimed it violated Illinois statute 215 because the insurer refused to pay replacement costs for the damaged buildings. The insurance company claimed Heritage Park failed to show that the July 2022 storm was the sole source of the claimed damage.
In his 13-page memorandum and order, Kennelly said summary judgment could not be awarded to the insurance company because the condo association provided sufficient expert testimony and analyses that could lead a jury to find that a July 2022 wind and hail storm caused the condos' damage. Expert testimony for Heritage Park, including meteorologist Matthew Bunkers and general contractor Michael Ogden, claimed the storm's 60-mile-per-hour winds and hail measuring up to an inch in diameter, were the likely source of the buildings' damage, the opinion said.
"Based on the combination of these experts' observations and analyses, Heritage Park has provided evidence sufficient to permit a reasonable jury to find that a severe wind and hail storm passed over the condos on the night of July 22-23, 2022," Kennelly wrote. "And shortly after this storm, [contractor Garrett] Beard ... noted hail damage to the roofs, as well as blown-off shingles, which, Beard says, are 'always' the result of wind damage. The court finds that Heritage Park has provided evidence sufficient to permit a reasonable jury to find that the July 22–23 storm caused the alleged damage. Summary judgment is therefore inappropriate."
The insurance company issued a property and liability insurance policy to Heritage Park in May 2022, and it claimed it was not responsible for the repairs because the condos had damage predating the policy agreement. The insurer also claimed Ogden's testimony should be excluded because it relied on Bunker's findings, according to the opinion.
Bunkers' testimony described how the National Weather Service would categorize the July 2022 storm as "severe." Garrett Beard, a representative of American Building Contractors who visited the condos numerous times over the past several years to repair the condos' roofs, also testified that he noticed hail damage when he visited the site a week after the storm. This contrasted Beard's previous report from March 2022, when he did not report any signs of hail damage, Kennelly wrote.
The court said different statements from experts backed up the assertion that the storm caused extensive damage.
The court denied the insurance company's move to exclude Bunkers's testimony under Federal Rule of Evidence 702 because he could only say there was a 70% likelihood of the storm conditions causing the damage. Expert testimony does not require 100% certainty, and Bunker included appropriate methodology and sufficient data to comply with civil procedure rules, the judge said.
"The determination of whether an expert used reliable methods 'does not ordinarily extend to the reliability of the conclusions those methods produce—that is, whether the conclusions are unimpeachable,'" Kennelly wrote. "... An expert may offer testimony based on a validly applied methodology that is still subject to doubt because '[i]t is the role of the jury to weigh these sources of doubt.'"
William Pratt, an attorney at The Hodge Law Firm in Galveston, Texas, said his team looks forward to the trial scheduled to start next month. He said he is glad the court preserved all causes of action and the experts' testimony.
Pratt is joined by colleagues Shaun W. Hodge and Henry Clay List Jr., as well as Michael Scott Hess, of Maron Marvel in Dallas and David Alan Eisenberg of Loftus & Eisenberg in Chicago.
Attorneys Brian E. Devilling, Matthew S. Ponzi, and Christopher Snow, of Foran Glennon Palandech Ponzi & Rudloff in Chicago, represent the insurance company.
This article first published on law.com.
© Touchpoint Markets, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to TMSalesOperations@arc-network.com. For more information visit Asset & Logo Licensing.