David T. Dobbs v. AllState Indemnity Company

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13813
Non-Argument Calendar
____________________
DAVID T. DOBBS,
Plaintiff-Appellant,
RICHARD R. DOBBS, et al.,
Plaintiffs,
versus
ALLSTATE INDEMNITY COMPANY,
Defendant-Appellee.
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2 Opinion of the Court 21-13813
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:18-cv-00309-TES
____________________
Before W ILSON, ROSENBAUM , and GRANT, Circuit Judges.
PER CURIAM:
In this insurance dispute, Appellant David Dobbs appeals the
district court’s grant of judgment in favor of Appellee Allstate In-
demnity Company (Allstate) and denial of Dobbs’ motion to vol-
untarily dismiss without prejudice. Dobbs sued for breach of con-
tract after Allstate refused to pay an insurance claim he filed for fire
damage to his home. The district court found that Dobbs failed to
prove damages for the contents of his home and the structure of
his home. Therefore, it granted judgment in favor of Allstate. On
appeal, Dobbs argues that the district court erred in (1) excluding
his expert testimony as to the structural damage of the home, (2)
concluding that Dobbs did not sufficiently prove damages, and (3)
denying his motion to voluntarily dismiss his case. For the reasons
stated below, we affirm the district court’s judgment in part and
reverse and remand in part.
I.
Dobbs was insured under a homeowner’s policy with All-
state. Following a fire that damaged his home in 2016, Dobbs filed
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21-13813 Opinion of the Court 3
a claim under the policy. Allstate denied the claim because it be-
lieved (1) the fire was intentionally set and (2) Dobbs did not have
an insurable interest in the home because of a mortgage. Dobbs
then sued Allstate for breach of contract in Georgia state court in
August 2018. Allstate removed the case to the Middle District of
Georgia.
The parties agreed to a bench trial, which was set for April
15, 2021, but only lasted one day after the district court determined
that it was unclear whether Dobbs had an insurable interest in the
property. The district court paused the proceedings to resolve this
issue and the trial did not resume until August 30, 2021. After
Dobbs presented his case, Allstate moved under Federal Rule of
Civil Procedure 52(c) for judgment on partial findings. While the
district court determined that Dobbs had an insurable interest in
the home, it concluded that Dobbs failed to prove damages. Re-
garding his personal property inside the home, the district court
concluded that Dobbs failed to prove the actual cash value of per-
sonal property lost during the fire. Regarding structural damage to
the home, the district court concluded that the only evidence re-
garding the amount of damages was inadmissible as it came in the
form of expert testimony, which Dobbs did not disclose in his Rule
26 report. The district court did not reach the issue of whether
Dobbs intentionally started the fire because the issue of damages
was dispositive.
Since Dobbs failed to establish damages, the district court
granted Allstate’s Rule 52 motion and entered judgment in its
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4 Opinion of the Court 21-13813
favor. Prior to the court’s judgment and after Dobbs presented his
case, Dobbs moved to voluntarily dismiss his case without preju-
dice. In denying Dobbs’ motion for voluntary dismissal, the district
court concluded that it would be improper to dismiss the case half-
way through trial after Dobbs had already rested his case. This ap-
peal followed.
II.
“A judgment on partial findings must be supported by find-
ings of fact and conclusions of law[.]” Fed. R. Civ. P. 52(c). We
review conclusions of law de novo and findings of fact for clear er-
ror.
Veale v. Citibank, F.S.B., 85 F.3d 577, 579 (11th Cir. 1996). We
review a district court’s exclusion of expert testimony for abuse of
discretion.
Seamon v. Remington Arms Co., 813 F.3d 983, 987
(11th Cir. 2016). A district court abuses its discretion if it “applies
an incorrect legal standard, follows improper procedures in making
the determination, or makes findings of fact that are clearly erro-
neous.”
Id. We review a district court’s ruling on a plaintiff’s mo-
tion to voluntarily dismiss his or her case only for an abuse of dis-
cretion.
McCants v. Ford Motor Co., 781 F.2d 855, 857 (11th Cir.
1986).
III.
Our discussion proceeds in three parts. First, we address the
district court’s ruling to exclude Turner’s expert testimony about
damages. Second, we turn to the district court’s determination that
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21-13813 Opinion of the Court 5
Dobbs failed to prove damages. Lastly, we discuss the district’s
court denial of Dobbs’ motion to voluntarily dismiss.
A.
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B)(i), a
party seeking to offer expert testimony must provide a written re-
port containing “a complete statement of all opinions the witness
will express and the basis and reasons for them[.]” Dobbs’ Rule 26
report did not disclose that Turner would be offering his opinion
on the cost of repairing the home. Instead, the Rule 26 report indi-
cated that Turner was only offering his opinion as to the cause of
the fire. Notwithstanding this lack of disclosure, Turner proceeded
to offer his opinion that the damage done to the home constituted
a “total loss” because it would cost more to repair the home than
to replace it. Under Federal Rule of Civil Procedure 37(c), “[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, or at a trial,
unless the failure was substantially justified or harmless.” Because
Dobbs failed to disclose Turner’s opinions pursuant to Rule 26(a),
the district court excluded his opinion.
On appeal, Dobbs argues that the district court abused its
discretion in excluding Turner’s opinion despite Dobbs’ failure to
disclose that opinion. First, Dobbs contends that there was no Rule
26(a) violation because Turner offered his opinion that the damage
constituted a total loss at both the
Daubert hearing and during his
deposition. This argument lacks merit because these passing
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6 Opinion of the Court 21-13813
references made by Turner at the
Daubert hearing and his deposi-
tion do not correct Dobbs’ failure to disclose Turner’s opinions in
the Rule 26(a) report. Rule 26(a)(2)(A) states that “a
party must
disclose” the expert’s opinions. Fed. R. Civ. P. 26(a)(2)(A) (empha-
sis added). Thus, Turner’s own statements during a hearing or dep-
osition would not satisfy the Rule 26(a) requirements of disclosure.
Further, Dobbs cites to no precedent where we have held that an
expert’s own statements during hearings or depositions can satisfy
the written report requirement of Rule 26(a).
Next, Dobbs contends that the Rule 26(a) omission was sub-
stantially justified and harmless. “Substantially justified means that
reasonable people could differ as to the appropriateness of the con-
tested action.”
Knight ex rel. Kerr v. Miami-Dade Cnty., 856 F.3d
795, 812 (11th Cir. 2017). We find that no reasonable person could
find Dobbs’ actions appropriate here. His offered explanation for
failure to timely disclose was that (1) he did not know Turner was
qualified to testify on damages when he was first identified and (2)
he wanted to limit his costs in retaining experts. His first explana-
tion falls well below the standard for substantially justified. And
his second explanation is rebutted by the fact that Dobbs attempted
to introduce two other experts to testify on damages, but the dis-
trict court excluded those experts because Dobbs failed to timely
disclose them. The failure to disclose was also not harmless be-
cause Allstate could not effectively prepare to rebut Turner’s opin-
ions about damages at trial.
See Reese v. Herbert, 527 F.3d 1253,
1266 (11th Cir. 2008) (“Because the expert witness discovery rules
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21-13813 Opinion of the Court 7
are designed to allow both sides in a case to prepare their cases ad-
equately and to prevent surprise, compliance with the requirement
of Rule 26 is not merely aspirational.”)
The district court did not abuse its discretion in excluding
Turner’s opinion testimony on damages. That opinion was not
disclosed to Allstate, as required by the rules of discovery. And
Dobbs fails to show that that omission was substantially justified
and that admitting Turner’s opinion would have been harmless to
Allstate. Accordingly, we affirm the district court’s ruling on this
issue.
B.
Next, Dobbs argues that the district court erred in entering
judgment in favor of Allstate because Dobbs failed to prove dam-
ages. The damages issue, as noted by the district court, concerns
two components, which involve different analysis. First, we ad-
dress whether Dobbs sufficiently proved damages to his personal
property within the home. Second, we address whether Dobbs suf-
ficiently proved damages to the structure of the home. Dobbs’ in-
surance policy covered both the personal property and structure of
his home.
Dobbs submitted an extensive list of his personal property
that was damaged by the fire. Dobbs testified that the list was pro-
vided to him by an Allstate claims adjuster who told Dobbs to com-
plete the form. He further testified that he provided the cost of his
personal items either by looking up the cost or writing down what
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8 Opinion of the Court 21-13813
he paid when he bought the items. Dobbs’ insurance policy pro-
vides that if the insured party does not repair or replace damaged
personal property, then the amount paid for that damage is based
on the “actual cash value” of the personal property—effectively,
the fair market value of the property at the time of loss. If the in-
sured party does repair or replace the damaged personal property,
then Allstate will reimburse the insured party for the cost in excess
of the actual cash value.
Dobbs contends that the district court erred in requiring him
to prove the actual cash value of his personal property. He argues
that the policy provides for replacement cost value of lost personal
property. This argument lacks merit because the replacement cost
only applies when the insured party repairs or replaces damaged
property. Then, the amount of reimbursement is determined by
the cost of repairing or replacing that item. At trial, Dobbs’ counsel
conceded that Dobbs did not have any receipts for replacing or re-
pairing his property. Thus, there would be no way to establish the
replacement cost without documentation as to what Dobbs paid to
replace or repair his damaged belongings. Instead, Dobbs could
only recover the actual cash value for his belongings, as provided
under the policy.
Under Georgia law, “[w]here tangible personal property has
been damaged or destroyed, the plaintiff has the burden of furnish-
ing evidence sufficient to enable the jury to calculate the amount
of damages with reasonable certainty without speculation.”
Champion v. Dodson, 587 S.E.2d 402, 404 (Ga. Ct. App. 2003). The
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district court concluded that the list of damaged personal property
was insufficient to prove damages with “reasonable certainty.”
See
id. The district court relied on
Champion, where the Court of Ap-
peals of Georgia stated:
Evidence of the retail purchase price of property
alone is not sufficient to establish the fair market
value of the property at the time of the loss, because
the age and condition of the property, the fair market
value at the time of loss, the condition immediately
after the loss, and the fair market value immediately
after the loss must be proven to establish the dam-
ages.
Id. The district court found that because the list failed to state the
condition, as well as age for some of the items, it was “wholly in-
adequate to prove actual cash value under Georgia law.”
For example, the district court explained that for one of the
damaged items, Dobbs “listed the age and purchase price of the sil-
verware set, but he failed to include any description of its condition
at the time of the fire or any evidence that would allow for a deter-
mination of its actual cash value.” On appeal, Dobbs argues that
this was error because Georgia law does not require the insured
party to prove the condition of personal property immediately be-
fore its destruction. We agree with Dobbs.
While the Court of Appeals in
Champion suggested that the
condition of the property is necessary to establish damages with
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10 Opinion of the Court 21-13813
reasonable certainty, the Supreme Court of Georgia adopted a dif-
ferent rule in
Braner v. Southern Trust Insurance Co., 335 S.E.2d
547 (Ga. 1985). There, the court expressly rejected the requirement
that the insured party provide evidence as to the condition of the
property immediately before its destruction, calling it “too strin-
gent” due to the practical difficulties and time-consuming nature of
this inquiry.
Id. at 551. For those reasons, the court adopted the
following rule:
Where a homeowner or homeowner’s spouse testi-
fies as to either the
purchase price or replacement cost
of household furnishing, items of personal clothing
and other commonly used personal property de-
stroyed by fire, and as to
the approximate date of pur-
chase or acquisition of each such item, the evidence is
sufficient for the jury to find the actual cash values of
such common and familiar property.
Id. at 552 (emphasis added). Thus, purchase price or replacement
cost and date of purchase are sufficient to prove actual cash value
for household items destroyed by fire.
True, the list provided by Dobbs is not perfect and does not
provide the date of purchase for all of the items. But for several
items, for example their microwave, Dobbs provided the brand,
age of the item, original cost, and place of purchase. Interestingly,
Dobbs testified that the form on which he completed the list was
provided by an Allstate claims adjuster. And the form does not
provide a designated space for the condition of the item as it does
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21-13813 Opinion of the Court 11
for other information like item age and original cost. Dobbs fur-
ther testified that the claims adjuster did not dispute what he was
writing on the form and that he did not overstate anything. On
recross examination, counsel for Allstate did not question Dobbs
“as to any particular item which might be suspect,”
id., but only
asked a single question about whether Dobbs was actually in the
presence of the claims adjuster when he completed the form. Fol-
lowing this exchange, Dobbs rested his case and Allstate moved for
a Rule 52(c) judgment on partial findings. This mirrors the situa-
tion that troubled the court in
Braner and we find it equally trou-
bling here.
While the rule statement in
Champion provides that the
plaintiff must prove things like condition and fair market value at
the time of the loss, the court there found that these facts could be
inferred by a jury. For example, the insured party in
Champion
was attempting to recover for her business inventory that was de-
stroyed during a fire. 587 S.E.2d at 407. While the insured party
provided the purchase price of the inventory and how it had been
kept, “she
did not specifically prove the dates of purchase or indi-
vidually
specify the condition immediately prior to the fire other
than it had been kept in the ordinary course of business.”
Id. (em-
phasis added). However, the court reasoned that the jury could
infer the fair market value and the condition of the inventory based
on the insured party’s testimony about how the inventory was kept
and that none of the inventory could be salvaged.
Id. at 408–08.
Thus, the court concluded that the trial court did not err in denying
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12 Opinion of the Court 21-13813
the defendant’s motion for a directed verdict.
Id. at 408. In addi-
tion, while the court found that other business items, the insured
party’s office furniture and equipment, lacked adequate proof be-
cause she only listed the purchase price or replacement cost, this
did not preclude her from recovering for damage done to her busi-
ness inventory.
Id.
Champion is also distinguishable from this case because it
concerned office equipment and business inventory, while the pre-
sent case only concerns household items. A more analogous case
is
Allstate Indemnity Co. v. Payton, 656 S.E.2d 554 (Ga. Ct. App.
2008). There, Allstate appealed the trial court’s denial of Allstate’s
motion for a directed verdict because the insured party failed to
prove damages.
Payton, 656 S.E.2d at 555. The insured party in
Payton prepared an inventory of damaged personal, household
property on a form provided by Allstate.
Id. The insured party
provided an estimate of the original cost of the items and an actual
cash value based on a discounted percentage of the original cost.
Id. Allstate challenged that the evidence was insufficient “because
there was no testimony as to the age, purchase price, or condition
of the items listed on the inventory.”
Id.
The court in
Payton relied on
Braner, which it noted “re-
laxed the rule concerning proof of damage to personal property de-
stroyed in a fire,” and concluded that the case was properly sent to
a jury.
Id. Although the insured party did not list the approximate
date of purchase, as required under
Braner, the court concluded
that the submission of the actual cash value based on the
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21-13813 Opinion of the Court 13
discounted percentage of the original cost was sufficient.
Id. at
555–56. The court did not require the insured party to prove con-
dition of the items immediately before their destruction and noted
that “[q]uestions of value are peculiarly for the determination of
the jury, where there is any data in the evidence upon which the
jury may legitimately exercise their own knowledge and ideas.”
Id.
at 556.
What
Champion and
Payton show is that the condition of
the items is not a necessary requirement to prove damages. The
court in
Champion allowed the jury to infer the condition of the
items although the insured party did not specify their condition,
and the court in
Payton did not discuss the condition of the items
at all. Instead, as announced by the Supreme Court of Georgia in
Braner, all that is needed to prove damages for personal, household
property damaged by fire is purchase price or replacement cost and
date of purchase. Therefore, the district court erred as a matter of
law when it determined that age and purchase price alone were
insufficient, and that Dobbs was required to prove the condition of
the items at the time of the fire.
Dobbs also argues that the district court erred in finding that
he did not sufficiently prove damages as to the structure of his
home. As noted above, due to Dobbs’ failure to properly disclose
his experts, he was unable to provide an expert opinion as to the
cost of repairs. However, he contends that where a homeowner
alleges that his home was “wholly destroyed” by a fire, the
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14 Opinion of the Court 21-13813
homeowner need not prove exact damages and photographs of the
home are sufficient to prove damages.
Under Georgia’s Valued Policy Statute, if an insured party’s
“building or structure is wholly destroyed by fire . . . the amount
of insurance set forth in the policy relative to the building or struc-
ture shall be taken conclusively to be the value of the property.”
O.C.G.A. § 33-32-5(a). Thus, if the structure of the home is wholly
destroyed by fire, then the amount of damages is simply the value
of the home. And the Court of Appeals of Georgia has held that
“evidence showing that it would cost more to repair the house than
to replace it and photographs submitted into evidence . . . showing
that the house was substantially gutted by the fire was sufficient to”
support a jury’s finding that the house was “wholly destroyed by
fire.”
Ga. Farm Bureau Mut. Ins. v. Brown, 385 S.E.2d 87, 90 (Ga.
Ct. App. 1989).
Here, Dobbs had no admissible evidence showing that it
would cost more to repair his home than to replace it. Thus, the
only evidence he could rely upon was photographs of the damage
to his home. The district court considered the photographs but,
determining that the home was “still intact,” concluded that they
did not definitively show that the home was “wholly destroyed by
fire.” Dobbs cites to no case where a court has held that photo-
graphs alone are sufficient to establish that a home has been wholly
destroyed by fire, and we decline to hold such here. Without any
admissible evidence as to a dollar amount for the cost of repairs
compared to the cost to replace the home, we conclude that the
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21-13813 Opinion of the Court 15
district court did not err in finding that Dobbs failed to sufficiently
prove damages to the structure of his home.
C.
Lastly, Dobbs argues that the district court erred in denying
his motion to voluntarily dismiss his case without prejudice under
Federal Rule of Civil Procedure 41(a). Under Rule 41(a), the plain-
tiff can dismiss an action without leave of court, “as long as the
defendant has not yet filed an answer or a motion for summary
judgment.”
Arias v. Cameron, 776 F.3d 1262, 1268 (11th Cir. 2015).
If the defendant has filed an answer or a motion for summary judg-
ment, then the plaintiff may only dismiss his case “by court order,
on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).
“Generally speaking, a motion for voluntary dismissal should be
granted unless the defendant will suffer clear legal prejudice other
than the mere prospect of a second lawsuit.”
Arias, 776 F.3d at
1268. The “crucial question” is “whether ‘the defendant would lose
any substantial right by the dismissal.’”
Id. at 1268–69 (alteration
adopted).
The district court did not abuse its discretion in denying
Dobbs’ motion to voluntarily dismiss. As the district court noted,
it was “indisputably clear” that Dobbs’ true reason for wanting to
dismiss his case was because he disagreed with the district court’s
adverse ruling on his expert testimony. The court further reasoned
that to allow Dobbs to dismiss his case
after he had presented his
case, would allow a plaintiff to “simply dismiss his case any time he
disagreed with a court’s ruling or committed some strategic or
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16 Opinion of the Court 21-13813
tactical error during the presentation of his case.” The district
court concluded that “[w]iggling out of adverse evidentiary rulings
. . . upon a motion for partial findings because a party patently
failed to comply with the Federal Rules of Civil Procedure just
doesn’t strike the Court as either fair or just.”
We agree with the district court’s conclusion that voluntary
dismissal would not have been proper. While the crucial question
is whether the defendant will suffer legal prejudice, the district
court has “broad discretion” when ruling on a Rule 42(a) motion
and “should also weigh the relevant equities and do justice be-
tween the parties in each case.”
Arias, 776 F.3d at 1268. The district
court properly weighed the equities in this case and deemed
Dobbs’ tactics unfair at this stage in the litigation. Accordingly, we
affirm the district court’s denial of Dobb’s motion to voluntarily
dismiss his case.
IV.
In conclusion, we hold that the district court did not abuse
its discretion in excluding the opinion of Dobbs’ expert about dam-
ages because Dobbs’ failure to disclose that opinion in his Rule
26(a) report was neither substantially justified nor harmless. We
also affirm the district court’s judgment in favor of Allstate as to
structural damage of Dobbs’ home. However, we reverse the dis-
trict court’s judgment as to Dobbs’ personal property because the
district court incorrectly held that Dobbs was required to prove the
condition of his property prior to the fire. The district court erred
as a matter of law in this respect because the Supreme Court of
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21-13813 Opinion of the Court 17
Georgia in
Braner held that the insured party need not prove the
property’s condition to sufficiently establish damages. Lastly, we
hold that the district court did not abuse its discretion in denying
Dobb’s motion for voluntary dismissal.
Accordingly, we remand to the district court for further pro-
ceedings consistent with this opinion.
AFFIRMED in part, and REVERSED and REMANDED in
part.
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