Exclusive Real Est Invest v. S.G.L. ( 2023 )

Case: 23-30195 Document: 00516956401 Page: 1 Date Filed: 11/03/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-30195 November 3, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Exclusive Real Estate Investments, L.L.C.,
Plaintiff—Appellant,
versus
S.G.L. Number 1, Limited,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:21-CV-443
______________________________
Before Jolly, Engelhardt, and Douglas, Circuit Judges.
E. Grady Jolly, Circuit Judge: *
This appeal presents an insurance coverage dispute.
The roof of a building owned by Plaintiff-Appellant Exclusive Real Es-
tate Investments, L.L.C. (“Exclusive”) partially collapsed during a rain-
storm in September 2019. Defendant-Appellee S.G.L. Number 1, Limited
(“SGL”) insured the building. SGL inspected the roof, determined that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30195 Document: 00516956401 Page: 2 Date Filed: 11/03/2023
No. 23-30195
Exclusive’s policy did not cover the damage, and denied the claim. Exclusive
then sued SGL for breach of contract and bad faith. SGL moved for summary
judgment, which the district court granted. Exclusive now appeals the dis-
missal of its complaint. We AFFIRM.
I.
We turn briefly to the factual background. In 2016, Exclusive pur-
chased a single-story, flat-roofed building in Lake Charles, Louisiana. Lloyds
of London issued Exclusive an insurance policy on the building with SGL as
the sole subscriber. The policy covered “direct physical loss to the prop-
erty” caused by windstorms. The policy, however, excluded losses “caused
by rain, snow, sleet, sand or dust unless the direct force of wind or hail dam-
ages the building causing an opening in a roof or wall and the rain, snow, sleet,
sand or dust enters through this opening.” (Emphasis added).
On September 11, 2019, a thunderstorm struck Lake Charles. During
the storm, the building’s roof partially collapsed while one of Exclusive’s
principals, Jonathan Howard, was at the building. Exclusive submitted an
insurance claim. SGL sent a field adjuster, Jimmy Romero, to inspect the
loss. Romero concluded that rain caused the roof to collapse, so Exclusive’s
insurance policy did not cover the damage. SGL then dispatched a forensic
engineer, John Rabenberg, to confirm the cause of the loss. Rabenberg con-
cluded that none of the damage was caused by wind or wind-related forces.
SGL therefore denied Exclusive’s claim as an uncovered peril in November
2019.
II.
In October 2020, Exclusive filed suit against SGL in Louisiana state
court for breach of contract and bad faith. SGL removed the action to the
Western District of Louisiana. The parties engaged in discovery. During
discovery, Howard served as Exclusive’s Rule 30(b)(6) representative.
2
Case: 23-30195 Document: 00516956401 Page: 3 Date Filed: 11/03/2023
No. 23-30195
Howard testified at his deposition that he saw the rain blowing sideways dur-
ing the storm. Exclusive otherwise produced no evidence that the roof col-
lapsed due to wind. After discovery, SGL moved for summary judgment.
The district court granted SGL’s motion and entered final judgment,
finding that SGL met its burden of showing that no coverage was owed for
the claimed loss and that no breach of the duty of good faith occurred based
on the denial of coverage.
III.
Now, on appeal, Exclusive argues that the district court erred by (1)
finding that Exclusive failed to present competent evidence to preclude sum-
mary judgment and (2) relying on Rabenberg’s opinion without first making
a Daubert determination. Our review is de novo. Pierce v. Dep’t of the Air
Force, 512 F.3d 184, 186 (5th Cir. 2007).
First, we turn to Exclusive’s primary argument that Howard’s depo-
sition testimony created a genuine issue of material fact as to whether the
damage was caused by wind or rain. Exclusive, relying solely on Howard’s
testimony that the rain was blowing sideways, failed to present any further
evidence to show wind damage to the structure. 1 In short, Exclusive pro-
duced no expert testimony to sustain its claim. On the other hand, SGL sub-
mitted evidence through depositions, reports, and photographs supporting
its position that the roof collapse was not caused by wind. The district court
therefore properly found that Exclusive failed to create a genuine issue of
_____________________
1
On appeal, Exclusive attempts to challenge—for the first time—the weather data
Rabenberg used in reaching his conclusions. This challenge was not raised in the district
court and is thus not properly before us. LeMaire v. Louisiana Dep’t of Transp. and Dev.,
480 F.3d 383, 387 (5th Cir. 2007).
3
Case: 23-30195 Document: 00516956401 Page: 4 Date Filed: 11/03/2023
No. 23-30195
material fact sufficient to preclude summary judgment. See BMG Music v.
Martinez, 74 F.3d 87, 91 (5th Cir. 1992).
Exclusive next argues that the district court erred by granting sum-
mary judgment before Exclusive could file a Daubert 2 motion challenging
Rabenberg’s qualifications. Although we note that Exclusive’s argument is
somewhat confusing, we find that the argument fails on two grounds. First,
Exclusive failed to object that the district court proceeded without waiting
for Exclusive’s anticipatory Daubert motion. By failing to object, Exclusive
forfeited this argument on appeal. Rollins v. Home Depot USA, Inc., 8 F.4th
393, 397 (5th Cir. 2021). Second, Exclusive failed to offer proof of what its
Daubert challenge would have explained and concluded. Exclusive therefore
failed to show it was prejudiced, even if we assume the district court ruled
too hastily.
For the reasons set out above, the judgment of the district court is
AFFIRMED.
_____________________
2
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993);
see also Fed. R. Evid. 702.
4