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Bloomfield Hills Country Club v. The Travelers Property Casualty Company of America

United States District Court, E.D. Michigan, Southern Division

October 11, 2016

BLOOMFIELD HILLS COUNTRY CLUB, BIRMINGHAM COUNTRY CLUB, and BYLEN GOLF COMPANY, L.L.C. d/b/a PINE TRACE GOLF CLUB, Plaintiffs,
v.
THE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, PHOENIX INSURANCE COMPANY, and TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendants.

          OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION IN LIMINE AS TO DR. KEVIN FRANK [61]

          Nancy G. Edmunds United States District Judge.

         Defendants bring this motion in limine as to Dr. Kevin Frank. (Docket 61.) Plaintiffs filed a response (dkt. 65) and Defendants filed a reply (dkt. 68). The Court heard this matter on October 5, 2016.

         I. Background and Facts

         This is a first-party property damage claim. Plaintiffs are three golf courses in metro-Detroit: Bloomfield Hills Country Club ("Bloomfield"), Birmingham Country Club ("Birmingham") and Bylen Golf Company, LLC, d/b/a Pine Trace Golf Club ("Pine Trace"; together "Plaintiffs" or "Plaintiff golf courses"). On April 1, 2013, Defendant Travelers Property Casualty Company of America, issued a policy of insurance to Bloomfield. On October 1, 2013, Phoenix Insurance Company issued a policy of insurance to Birmingham. On January 1, 2013, Travelers Indemnity Company of America issued a policy of insurance to Pine Trace. There is no dispute that the policies were in effect throughout the 2013-2014 winter. Each Plaintiff purchased, at an additional cost, the Eagle 3 Miscellaneous Property Coverage ("Eagle 3 form"), which provided: "We will pay for direct physical loss of or damage to Covered Property caused by or resulting from Covered Cause of Loss." (Eagle 3 Misc. Prop. Coverage § A, dkt. 53-1.) Covered Property includes "Golf Course Greens, Tees, Fairways and Rough, " and provides as a Covered Cause of Loss "Weight of snow, ice or sleet." (Eagle 3 Misc. Prop. Coverage § A.3.b(13), dkt. 53-1.)

         Plaintiffs allege that during the winter of 2013-2014, thick heavy ice accumulated on the greens at Plaintiff golf courses, allegedly 5 inches thick in some locations. (Photos., Ex. 2, dkt. 53-1.) Plaintiffs allege that the weight of this ice killed the turfgrass by prohibiting a gaseous exchange by the turfgrass, leading to anoxia, as opined by at least one of Plaintiffs' experts.[1]

         Plaintiffs submitted claims to Defendants for coverage pursuant to the Eagle 3 form for the winterkill damage to the greens. Defendants denied coverage on the basis that the weight of the ice did not kill the greens. Plaintiffs filed suit on April 6, 2014. (Dkt. 1.) The Court has already denied Defendants' motions for summary judgment and this case is set for trial.

         The instant motion involves Plaintiffs' witness Dr. Kevin Frank. Dr. Frank is an associate professor in the Plant, Soil and Microbial Sciences department at Michigan State University. (Defs.' Mot. In Limine as to Dr. Frank 2-3, dkt. 61; Pls.' Resp. 6.) Following damage to the greens from the 2013/2014 winter, Birmingham and Pine Trace retained Dr. Frank to inspect their greens regarding the cause of damage. Bloomfield did not retain Dr. Frank to inspect its greens. (Frank Dep. 12:33-13:21, Defs.' Mot., Ex. 1, dkt. 61-1.) Dr. Frank wrote letters to Pine Trace and Birmingham, dated July 15, 2014, and July 22, 2014, respectively, giving an opinion as to the primary cause of death to the turfgrass and what, if any, role weight of ice played in the winterkill damage.[2] In Plaintiffs' Rule 26 disclosures, served on September 18, 2015, Plaintiffs identified Dr. Frank as follows, under "witness identification":

9. Representatives, agents, employees and custodians of records of Michigan State University, including but not limited to Dr. Kevin Frank and Dr. Try Rogers, . . . . It is anticipated these witnesses will testify regarding the damage to Plaintiffs' greens and the cause of that damage being the weight of ice and snow. These witnesses may be called to provide expert opinion testimony regarding these issues.

(Pls.' FRCP Disclosures, Sept. 18, 2105, Pls.' Resp. Ex. 4, dkt. 65-1.) The parties deposed Dr. Frank on March 22, 2016, at which time Dr. Frank was also asked about Bloomfield, as set forth in further detail below.

         Defendants seek to exclude or limit certain testimony of Dr. Frank. (Defs.' Mot. 2, dkt. 61.) Despite Plaintiffs' argument to the contrary, this is the first time Defendants have properly moved to exclude or otherwise limit Dr. Frank's testimony, though Defendants mentioned Dr. Frank's testimony and letters in their motion for summary judgment.

         II. Analysis

         A. Whether Plaintiffs Properly Disclosed Dr. Frank's Expert Opinion Testimony Pursuant To Rule 26(a)(2)(C)

         Defendants argue that Plaintiffs failed to properly disclose Dr. Frank's testimony as a non-retained testifying expert in accordance with Fed.R.Civ.P. 26(a)(2)(C), which provides

(a) Required Disclosures
(2) Disclosure of Expert Testimony
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under ...

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