Terry Nix, Amy Sheree Nix v. State Farm Fire & Casualty Company, Inc. , 444 F. App'x 388 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11584
OCTOBER 20, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 6:10-cv-00303-LSC
TERRY NIX,
AMY SHEREE NIX,
Plaintiffs - Appellants,
versus
STATE FARM FIRE & CASUALTY COMPANY, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama - Jasper
________________________
(October 20, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Terry and Amy Nix appeal the summary judgment in favor of State Farm
Fire & Casualty Company. State Farm issued a policy insuring the Nixes’ home,
and the Nixes filed a claim after a portion of a retaining wall in their home
collapsed and their basement flooded. State Farm denied coverage on the ground
that the policy excluded coverage for collapses caused by defects in construction
and for damage caused by groundwater. The Nixes filed a complaint in an
Alabama court that State Farm breached its contract and acted in bad faith for
failing to investigate or to pay their insurance claim, and State Farm removed the
action to the district court. The district court ruled that the Nixes failed to
contradict the expert testimony introduced by State Farm that the damage was
attributable to defects in the construction of the house. We affirm.
The Nixes’ homeowners policy provides coverage for “direct physical loss .
. . involving the sudden . . . collapse of . . . any part of a building” that is
attributable to “one or more of” 20 enumerated “perils,” but the policy provides
that a “collapse” attributable to other causes is excluded from coverage.
Paragraph 2.c.(3) of the policy provides that State Farm “do[es] not insure under
any coverage for any loss” attributable to “water damage,” including “water below
the surface of the ground” that “exerts pressure on . . . a building” or “foundation.”
Paragraphs 3.b.(2) and (3) of the policy also exclude from coverage “any loss”
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attributable to a “defect, weakness, inadequacy, fault or unsoundness in” either the
“design, specifications, workmanship, [or] construction” of a home or the
“materials used in [its] construction.”
We review a summary judgment de novo and view the evidence in the light
most favorable to the nonmoving party. St. Paul Fire and Marine Ins. Co. v. ERA
Oxford Realty Co. Greystone, LLC, 572 F.3d 893, 897 (11th Cir. 2009). Summary
judgment should be entered when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The district court did not err by granting summary judgment in favor of
State Farm because the uncontroverted evidence establishes that the Nixes’ claim
was excluded from coverage. State Farm introduced testimony from its expert
witness, Mark Voll, that the retaining wall in the basement of the Nixes’ home
collapsed because the wall was not properly designed or built and collapsed from
hydrostatic pressure. See Jordan v. Nat’l Accident Ins. Underwriters Inc., 922
F.2d 732, 735 (11th Cir. 1991). Voll, an engineer, testified that the retaining wall
lacked reinforcing steel, as required by a local building code, and could not
withstand the pressure created by groundwater that had accumulated during a
heavy rainfall. Voll also testified that a french drain installed alongside the
retaining wall failed to disperse the groundwater because the drain had been
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covered with clay soil instead of gravel. Although the Nixes argued that the main
line water pipe burst and caused the retaining wall to collapse, they based that
argument on the opinions of Terry Nix and a contractor who made temporary
repairs to the wall, and those opinions were not admissible as lay testimony.
Neither Nix nor the contractor witnessed the wall collapse or had personal
knowledge about the construction of the Nixes’ home. See Fed. R. Evid. 701.
Because the collapse of the retaining wall was attributable to causes excluded
from coverage under the Nixes’ insurance policy, State Farm did not breach its
contract with or owe a duty to further investigate or to pay the claim filed by the
Nixes.
We AFFIRM the summary judgment in favor of State Farm.
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