MILES DAVIS, Magistrate Judge
Defendant, Owners Insurance Company ("Owners"), submits this memorandum in opposition to Plaintiffs' Motion for Rehearing. (Doc. 159).
I. Standards Applicable to Motions for Rehearing
The purpose of a motion for rehearing is to correct manifest errors of law or fact, or to present newly discovered evidence. Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp.2d 1366, 1369 (S.D. Fla. 2002). There are three potential grounds for rehearing: "(1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice." Id. In order to reconsider a judgment, there must be a reason why the Court should reconsider its prior decision, and the moving party must set forth facts or law of a strongly convincing nature to induce the Court to reverse its prior decision. Id. A motion for rehearing should not be used to repeat arguments previously made and rejected. Id. Reconsideration of a previous order is an extraordinary remedy to be employed sparingly. Id.
II. Plaintiffs' Motion for Rehearing Contains Nothing More than Improper Repetition of Arguments Previously Made, Considered, and Rejected.
The Court's Order of June 6, 2006 ("Order") (Doc. 150), methodically reviewed all of the proper record material submitted by the parties in support of their cross-motions for summary judgment as to the scope of liability under the insurance policies sued upon.
As has been the pattern throughout this case, Plaintiffs' Motion for Rehearing blatantly mischaracterizes the proper record evidence in a last-ditch effort to suggest there are legitimate factual disputes when there are none, as this Court's Order appropriately recognizes.
Plaintiffs' first point (Motion for Rehearing, pp. 3-5) argues with the Court's reference to the "relatively minor water damage to the attic insulation and to the sheetrock ceilings in various rooms of the home." (Order p. 5). First, Plaintiffs apparently do not understand that this reference was in context of describing the damage for which Owners has already paid under the homeowners' policy covering wind damages, because Plaintiffs argue that this was wind damage covered by Owners' policy. But Plaintiffs then proceed to reargue that which they have no expert testimony to support, and that is the overall extent of wind damages as compared to other damages caused by flood. Plaintiffs continue to improperly rely on testimony of Ed Rankin ("Rankin") who was a contractor and who admittedly lacked the expertise to make any judgment regarding whether particular damage was caused by flood or by wind. (Rankin Depo., Doc. 108, p. 38); see Order p. 24, n. 12. In so doing, Plaintiffs not only mischaracterize their own witness' testimony, but they also violate this Court's order of March 2, 2006 (Doc. 123) that expressly limited the purpose for which Mr. Rankin's testimony would be admissible:
As just one example of the blatant mischaracterization of Rankin's testimony, Plaintiffs incorrectly state that Mr. Rankin said wind-driven rain coming in through the attic eaves totally destroyed the heating and air conditioning systems. (Motion for Rehearing, p. 4). What Mr. Rankin actually said was that the heating and air conditioning systems were flooded. (Rankin depo., Doc. 131, p. 21).
Nevertheless, the plaintiffs are precluded from using Rankin as an expert to testify regarding any
opinion beyond the scope of his cost repair estimate, such as how water entered the plaintiff's home or whether certain damage was caused by wind or flood. Such opinions fall within the scope of Rule 702 because they are not based upon personal observation, but on scientific, technical, or other specialized knowledge. Accordingly, the plaintiffs are precluded by Rule 26 from belatedly using Rankin as anything other than a fact witness.
(Doc. 123, p. 12, emphasis in original). The Court properly relied on the undisputed testimony of Owners' expert, buttressing the evaluations and consistent breakdown of wind versus flood damage made by Owners' adjuster and Fidelity's adjuster right after the damage occurred. (Sheehan affidavits, Doc. 47). There was no expert testimony to the contrary.
Plaintiffs' second point (Motion for Rehearing, p. 5) mischaracterizes both what the Court said and what the witnesses said, in suggesting that the Court was wrong to say that Mr. Greer met with Danny Weeden of the Escambia County Building Inspections Department to obtain a determination as to whether his home was substantially damaged. Instead, the Court's Order simply (and accurately) stated, "At some point after the hurricane, Mr. Greer requested the Building Inspections Department to determine whether his house was substantially damaged." (Order, p. 6). This is precisely what Mr. Greer testified to:
Q: Did you go to the County and request a determination of whether or not the home was substantially damaged?
A. Yes I did.
(Greer Depo., Doc. 48, p. 62).
Plaintiffs' third point (Motion for Rehearing, p. 5) was that the Court should not have accepted as true the unrebutted expert testimony of Mr. Sheehan that Plaintiffs' home was easily repairable, and in fact, should have been repaired in a timely fashion. Plaintiffs want to speculate that because Mr. Sheehan's opinion did not itemize all of the components of damage, maybe he did not consider them all. However, such speculation is inadequate to create an issue of fact. To the contrary, there was absolutely no suggestion in the record that the damage to systems mentioned by Plaintiffs in their Motion (e.g., electrical, heating, and air conditioning) rendered the home irreparable, and that suggestion is ludicrous on its face. Plaintiffs' own contractor witness, Mr. Rankin, included all of these items in his repair estimate.
Plaintiffs' fourth point (Motion for Rehearing, p. 5) is that the Court improperly found as fact that the windows were not broken during the storm. (Order, p. 18). The Court's statement simply reflected the unrebutted testimony of Mr. Greer, who returned to the property several days after the storm and testified that the windows and exterior doors were intact, just as he had left them. (Greer depo., Doc. 48, pp. 109-110). Plaintiffs go beyond the bounds by cavalierly citing the "Structural Report of James Mallett" as providing contrary evidence, when that report has been rejected over and over as improper. See, e.g., Docs. 100 and 123. Moreover, even if Mr. Mallett's report were proper record evidence, the fact that he observed "broken windows" when he inspected the home on October 10, 2005, more than one full year after the storm at issue, when the home had been vacant all of that time, would simply not be probative of the condition of the windows in September 2004, which was described by Mr. Greer.
In fact, the Mallett report does not even refer to "broken windows." Instead, it makes one reference to a picture of a single window showing broken glazing. See photo #25 to Mallett report. The photo shows one small corner crack in one window.
Plaintiffs' fifth point (Motion for Rehearing, pp. 5-6) argues with the Court's determination that "plaintiffs have not established that a reasonably prudent person would not use the existing structure to rebuild the home as it was before the hurricane." (Order, p. 17, n. 9). Plaintiffs argue that they established this by the opinion of James Mallett (despite the fact that Mr. Mallett's untimely expert opinions were disallowed by the Court), and by Mr. Rankin's non-expert statement that as a general proposition if a house is damaged more than 50% of its value, it is more cost-effective to bulldoze and rebuild. As the Court properly observed, as an initial matter, there is no evidence of what the fair market value of Plaintiffs' home was before the damage. Thus, even if there were proper expert testimony of record that it would not be cost-effective for these Plaintiffs to repair damage exceeding 50% of the fair market value of their home, there is still no predicate in the record from which to conclude that that threshold is surpassed here. But, there is no proper expert testimony establishing these facts for Plaintiffs.
Plaintiffs' sixth point (Motion for Rehearing, pp. 6-7), suggests that the Court should not have disregarded the Escambia County Building Department's determination of the pre-storm value of the Greer's home. The deposition of Escambia County, through its designated representative, established that the Building Department used an adjusted tax-assessed value because the tax-assessed value was admittedly below fair market value; however, no explanation could be given to justify the adjustment factor applied to tax-assessed value other than that was the factor applied in such cases. There was no consideration given to the actual property values for residences in the vicinity of the Greers' home. (Weeden Depo., Doc. 50, pp. 17-20). Significantly, Mr. Greer himself admitted that he was unable to say what the "market value" of his home was before the storm. (Greer depo., Doc. 48, pp. 119-120). The Court merely pointed out several compelling reasons why the adjusted tax assessed value is insufficiently probative of fair market value. Plaintiffs are the ones asserting the claim that their home was a total loss or constructive total loss from damage caused by Hurricane Ivan, and to the extent they wanted to argue that it would not be cost-effective to repair the home, it was incumbent on them to offer evidence sufficient to establish that. The Court properly noted the absence of probative evidence on this point.
Plaintiffs' eighth point (Motion for Rehearing, pp. 7-8) attacks in sweeping terms the Court's determination that "[i]t is undisputed that the Plaintiffs' home was not rendered a total loss following Hurricane Ivan when the `total loss' is properly determined." (Order, p. 21). Plaintiffs point generally to the two (rejected) expert reports and non-expert witness Rankin's deposition testimony to suggest that somewhere a disputed issue of fact was raised. To the contrary, the Court's determination was based on expert testimony that was unrebutted by any proper expert testimony, and was also based on the pictorial display that vividly illustrated the unrebutted expert opinions.
Plaintiffs' ninth point (Motion for Rehearing, p. 8) argues that the Court erred in determining that Plaintiffs' attempt to rely on a new ordinance requirement effective in 2006 was a new claim that would have to be judged under the amended Valued Policy Law, Section 627.702, Florida Statutes (2005). Plaintiffs argue that the Court erroneously equated an insurance "claim" with the filing of a lawsuit. But the new elevation requirement was not in existence when Plaintiffs filed their lawsuit. The new elevation requirement was not in existence at any time during the term of the insurance policy upon which Plaintiffs sued. Plaintiffs' claim for breach of contract against Owners is predicated on the contract that is attached to the complaint. Complaint (Doc. 2, Exhibit A), the insurance policy sued upon, shows on its face that the Policy Term of that contract was from July 22, 2004 to July 22, 2005.
The Court was correct in its determination that the Valued Policy Law as amended in 2005 would apply to Plaintiffs' new claim which could not have arisen before January 2006. Plaintiffs' argument is that a distinct and independent cause on January 10, 2006 — the adoption of a new building requirement — rendered Plaintiffs' dwelling a total loss. (Motion for Leave to Amend, Doc. 125, p. 3, ¶ 9). This assertion has nothing to do with the pending lawsuit, a breach of contract claim for a loss that occurred in September 2004, and for which a claim was made on a policy whose term expired on July 22, 2005. The only possible conclusion is that Plaintiffs' attempt to rely on the new ordinance must be viewed as a new claim. Any other interpretation would constitute an unconstitutional impairment of contracts. See Fla. Att'y Gen. Op. 078-43, 1978 WL 24672 (1978) (municipal ordinance is a "law" for purposes of prohibition against passage of laws impairing obligations of contracts).
As previously briefed, the key inquiry is whether building regulations in effect in 2004 when Plaintiffs' home was damaged prohibited Plaintiffs from repairing the damage, giving rise to a constructive total loss. The logic of the constructive total loss cases is that an insurance policy insures against certain losses in the context of circumstances that exist at the time of the loss, including laws presumed to have been contemplated by the parties in entering into their insurance contract. See Owners' Memorandum in Opposition to Plaintiffs' Motion for Leave to File Amended Complaint, Doc. 139, at pp. 9-13.
As this Court recognized, Plaintiffs let it be known from the outset that they did not want to apply for a building permit while there was no regulatory reason for the permit to be denied, because Plaintiffs did not want to repair their home; instead, Plaintiffs desired to raze their home and build a new home to specifications well exceeding all regulatory requirements. The Court properly considered the clear testimony and documentation in this regard.
Plaintiffs' tenth point (Motion for Rehearing, pp. 8-9) does not add anything new, simply arguing again with the Court's conclusion that the undisputed evidence establishes that most of the damage to Plaintiffs' home was caused by flooding, with minor wind damage. The unrebutted expert testimony supports the Court's conclusion.
Plaintiffs' eleventh point (Motion for Rehearing, p. 9) argues with the Court's conclusion that the undisputed evidence shows that the home's contents were damaged solely by flood waters. In an effort to create a disputed issue of fact, Plaintiffs point to improper testimony of non-expert Rankin, when this Court expressly prohibited the predicate opinion from Rankin on which the Plaintiffs seek to rely. See Order, p. 24, n. 12. From the improper Rankin testimony, Plaintiffs offer an inference that water coming in through the attic eaves and dripping down from the ceilings may have damaged the home's contents before the home was inundated with flood waters. The suggested speculative inference is not only impermissible (because based on improper opinion from a non-expert), but it is also patently irrational.
Plaintiffs' final point (Motion for Rehearing, p. 9) is that the Court's ruling on "Other Structures" coverage is erroneous because the Court made a legally impermissible finding of fact that the total cost to repair the home would not exceed $202,000. To the contrary, the Court's statement was that "even accepting the plaintiffs' cost-repair estimate of the damage caused by windstorm as true, the total cost would not exceed $202,000[.]" (Order, p. 26). As previously noted, Plaintiffs have not offered any evidence regarding causation of damages (wind vs. flood), hence their non-expert contractor Rankin provided estimates to repair damages, accepting the break-down of damages into flood and windstorm categories used by the flood and wind insurance adjusters.
CONCLUSION
Based on the foregoing, this Court should deny Plaintiffs' Motion for Rehearing. (Doc. 159).