United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
the court is the Motion for Summary Judgment filed by
Defendant Berkshire Hathaway Homestate Insurance Company
(“BHHIC”) Doc. 40. Plaintiff Surfside Japanese
Auto Parts and Service (“Surfside”) opposes the
motion. Doc. 49.
Summary Judgment Standard
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c). The movant bears the burden of showing that no genuine
issue of material fact exists. See Zamora v. Elite
Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006).
The Court resolves all factual disputes and draws all
reasonable inferences in favor of the non-moving party.
Id. However, the party opposing a motion for summary
judgment may not “rest on mere allegations” in
its complaint but must “set forth specific facts
showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e). The party opposing a motion for summary
judgment must also make a showing sufficient to establish the
existence of those elements essential to that party's
case. See Celotex Corp. v. Catrett, 477 U.S. 317,
movant that “will not bear the burden of persuasion at
trial need not negate the nonmovant' claim, “but
may “simply . . . point out to the court a lack of
evidence for the nonmovant on an essential element of the
nonmovant's claim.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal
citations omitted). If the movant makes this prima facie
showing, “the burden shifts to the nonmovant to go
beyond the pleadings and ‘set forth specific facts'
that would be admissible in evidence in the event of trial
from which a rational trier of fact could find for the
nonmovant.” Id. (citing Thomas v. Wichita
Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.),
cert. denied, 506 U.S. 1013 (1992)). “In a
response to a motion for summary judgment, a party cannot
rest on ignorance of facts, on speculation, or on suspicion
and may not escape summary judgment in the mere hope that
something will turn up at trial. The mere possibility that a
factual dispute may exit, without more, is not sufficient to
overcome convincing presentation by the moving party.”
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)
(internal citations omitted).
is insured under BHHIC Commercial Property Insurance Policy
No. 01PRM30729-01 (the “Policy”), effective from
August 15, 2016 to August 15, 2017 (the “Policy
Period”). Doc. 41, Ex. A, p. 4. The Policy provides
coverage for direct physical loss of or damage to covered
property during the Policy Period, subject to all terms,
conditions, limitations and exclusions set forth in the
Policy. Id., p. 27.
owns an automobile repair facility located at 6247 E. 15th
Street, Tulsa, Oklahoma 74112. Id., Ex. B, Murphy
Dep., 5:22-25, 7:9-12. The building has three metal roof
sections: a south section built in 1959, a middle section
built in 1984 and a north section built in 1989. Doc. 49, Ex.
A, Parrish Affid., ¶ 6. Plaintiff claims that a hail
storm damaged its metal roofs in April or May of 2017. Doc.
2-2, Petition, ¶ 6. According to Plaintiff's
retained expert witness, Kelly Parker, hail stones must be at
least .75 inches in size to damage a metal roof. Doc. 41, Ex.
C, Parker Dep., 36:18-20.
of 2017, roofing contractor George Parrish of 4Star General
Contracting was working on roofs on properties “about a
half mile or a little less” from Surfside when he
approached its owner, Gary Murphy, unsolicited and offered to
inspect the property. Doc. 41, Ex. E., Parrish Dep.,
30:25-31:3, 36:19-2. Parrish observed hail damage on the roof
and told Murphy that, based on a weather report, the hail
damage was recent. Id., 38:1-12; 39:21-40:10; Ex. B,
Murphy Dep., 22:13-24.
presented its insurance claim for the hail damage on July 7,
2017. Doc. 41, Ex. N, Boswell Dep.:23:23-25. BHHIC retained
independent adjuster Steve Dudash, who inspected the property
on July 10, 2017, and did not observe spatter marks
suggesting recent damage. Id., Ex. O, Dudash Dep.,
then retained consulting engineer Robert Chynoweth, who
inspected the roof on August 24, 2017, and concluded that
non-functional hail damage was observed to the metal U- and
R-panel roof panels of the building, but the damage occurred
as a result of a hail storm which occurred on April 23, 2011,
or earlier storms. Id., Ex. P. Chynoweth's
opinions regarding the age of roof surface damage were based
on the fact that the largest hail spatter marks were a
half-inch in size, indicating that no hail of sufficient size
to damage a metal roof had fallen recently. Id., Ex.
P, p. 21l.
on Chynoweth's conclusions, BHHIC denied Plaintiff's
insurance claim for the roof surface on the basis that the
hail damage did not occur during the policy period.
Id., Ex. Q.
Gary Murphy testified that he does not recall hail falling on
the property in April or May of 2017, nor did he remember the
last time he had been on the property's roof prior to
May, 2017. Ex. B, Murphy Dep., 17:47, 19:2-6. He had no idea
if the damages at issue occurred during or prior to the
Policy Period. Id., 29:6-25.
testified that hail must be .75 to 1.25 inch in size to cause
damage to a metal roof Id., Ex. E, 75:9-13.
Likewise, Plaintiff's retained expert, Parker, testified
that hail must be at least .75 inches in ...