Fifth Circuit Rules That Insured May Not Rely on Conclusory Expert Affidavit to Survive Summary Judgment

by Tae Andrews

A recent Fifth Circuit decision has reaffirmed that an insured cannot withstand an insurer’s motion for summary judgment by presenting only an expert’s conclusory affidavit as evidence.

In Stagliano v. Cincinnati Insurance Co., No. 15-10137 slip op. at 2 (5th Cir. Dec. 11, 2015), the insured plaintiffs owned 48 commercial properties around the Dallas area. The insurer defendants—The Cincinnati Insurance Company and The Cincinnati Casualty Company (together, “Cincinnati”)—issued an insurance policy covering the properties for the period from August 14, 2010 to August 14, 2011. The plaintiffs submitted a claim for hail damage to one of their properties due to a May 24, 2011 storm, and Cincinnati paid it.

Over a year and a half later, the insureds submitted several other claims for property damage that they alleged came from the same storm. Cincinnati denied these claims. The insureds sued Cincinnati for breach of contract, among other causes of action. Cincinnati then moved for summary judgment based on the affidavit of a property claims manager, who stated that he inspected the roofs of the plaintiffs’ properties and determined that they had suffered hail damage from multiple storms—some of which may have taken place after the plaintiffs’ insurance policy expired.

Cincinnati argued that the insureds could not prove that the damage to their properties came from a hail storm taking place during the policy period, and the insured has the burden of proving that a loss occurred within the policy period. See N.H. Ins. Co. v. Martech USA, Inc., 993 F.2d 1195, 1199 (5th Cir. 1993).

In response, the insureds submitted an expert affidavit from a structural engineer. The engineer stated that he had inspected one of the damaged properties and concluded, “based on [his] background, experience and evaluation of the meteorological events relating to this matter, hail did in fact occur on May 24, 2011”—within the policy period. The engineer also stated that “such hail was consistent with such damages [he] personally observed.” The district court granted Cincinnati’s motion for summary judgment, and the plaintiffs appealed.

On appeal, the Fifth Circuit ruled in Cincinnati’s favor. In order to defeat Cincinnati’s “no evidence” motion for summary judgment, the insureds had to produce some evidence that a hail storm occurring during the policy period—and not another storm taking place after the policy period—caused the damage to their property.

As a matter of law, the Fifth Circuit ruled that the expert affidavit of the insureds’ structural engineer was insufficient to prevent summary judgment in Cincinnati’s favor. The panel noted that the engineer’s affidavit was conclusory and did not contain any factual support or explanation of the basis for determining that the damage observed came about as a result of a hail storm occurring during the policy period, as opposed to a later storm. Instead, the engineer referred only to his credentials and offered his subjective opinion. He did not offer any explanation of the principles or methodology upon which he arrived at his conclusion that the damage came from a storm taking place during the policy period. The Court of Appeals described the expert’s affidavit as “the epitome of an ‘unsubstantiated assertion.’” In other words, an expert’s mere ‘say-so,’ standing alone, will not provide enough evidence for an insured to create a genuine dispute of material fact so as to defeat an insurer’s no-evidence summary judgment motion.

The Stagliano decision is consistent with other Fifth Circuit decisions regarding summary-judgment evidence. See Arlington Apartment Inv’rs, L.L.C. v. Allied World Assurance Co., 612 F. App’x 237, 238 (5th Cir. 2015) (“Unsubstantiated assertions and conclusory allegations do not constitute competent summary-judgment evidence”); Glaze v. Higman Barges Lines, Inc., 611 F. App’x 227, 228 (5th Cir. 2015) (holding that a plaintiff cannot “defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence’”) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)); Barkley v. Dillard Dep’t Stores Inc., 277 F. App’x 406, 413 (5th Cir. 2008) (holding that a witness’s mere ipse dixit—or say-so—does not amount to evidence sufficient to overcome summary judgment).  Insureds should make sure that when relying on expert affidavits as summary-judgment evidence, the experts provide detailed explanations of how they arrived at their conclusions, as opposed to merely reciting their credentials and then offering their subjective opinions. Otherwise, Stagliano makes it clear that an expert’s mere say-so will not suffice to create a fact issue sufficient to defeat an insurer’s motion for summary judgment.