State Farm Fire Cas. Co. v. Holland, Ca2007-08-025 (9-2-2008)State Farm Fire Cas. Co. v. Holland, Ca2007-08-025 (9-2-2008)
{¶ 1} Appellant, State Farm Fire and Casualty Company, appeals the decision of the Madison County Court of Common Pleas granting summary judgment to appellees, Wayne Holland (“Holland“) and Dennis Marshall (“Marshall“). For the reasons set forth below, we affirm the trial court‘s judgment.
{¶ 2} This matter concerns an insurance claim paid by appellant following a fire at thе residence of its insured, Deborah Perlenfein. The home was originally constructed by Holland for an individual named Doug DeLong. Holland subcontracted the electrical work on the project to Marshall, who is a licensed electrical contractor.
{¶ 3} At approximately 9:45 am on February 15, 2004, Holland observed smoke emanating from the subject residence as he was driving down an adjacent road. He proceeded to the residence, where three other witnesses had also just arrived. Upon entering the home, Holland heard the sound of running water and observed water dripping through the ceiling from the second floor. He proceeded upstairs to the master bedroom where he observed heavier smoke than was present in the rest of the home, and that the master bathroom door was burned “almost completely off.”
{¶ 4} Holland entered the master bathroom, which he observed was “scorched,” but had no active flames. He observed that one of the bathtub faucet handles was broken off and that water was “spraying everywhere.” He also observed that two of the back windows were broken out and that most of the trim and jams were burnt. According to Holland, the ceiling was still in place at that time. After investigating further, Holland observed “fire or a red glow through the heat run register grill in the ceiling towards the back of the room above the center window.”
{¶ 5} Fireman Mike Chamberlain responded to the fire shortly thereafter and observed smoke and flames coming out of the second floor window from the master bathroom. Chamberlain extinguished the fire in the master bathroom, and noted that the drywall ceiling was still intact at that time. He then “tore down thе drywall ceiling in the master bathroom * * * to determine whether a fire was burning in the attic.” Chamberlain indicated he saw fire in the attic after doing so.
{¶ 6} Appellant, as subrogee, subsequently filed the instant action against Holland
{¶ 7} Appellant now appeals the trial court‘s decision, advancing a single assignment of error.
{¶ 8} Assignment of Error:
{¶ 9} “THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE WAYNE HOLLAND.”
{¶ 10} In its sole assignment of error, appellant argues the trial court erred in granting summary judgment to Holland where genuine issues of material fact remain to be litigated with respect to its negligence claim. We find appellant‘s contention without merit.
{¶ 11} We review a trial court‘s decision on summary judgment de novo. Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296. Summary judgment is proper when (1) there are no genuine issues of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can only come to a conclusion adverse to the nonmoving party, construing the evidence most strongly in that party‘s favor.
{¶ 12} To establish an actionable negligence claim, “the plaintiff must show the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom.”
{¶ 13} Appellant presents sevеral sub-arguments in support of its contention the trial court erred in granting summary judgment to Holland. Appellant‘s central argument concerns the trial court‘s exclusion of its expert witnesses’ testimony. Appellant contends this exclusion was improper and that without such exclusion, genuine issues of material fact remain as to its negligence claim, rendering summary judgment inappropriate. In addition, appellant argues the trial court erred in granting summary judgment on grounds not requested by Holland.
{¶ 14} It is well-established that trial courts have broad discretion in determining whether evidence is admissible. Komenovich v. AK Steel Corp. (Jan. 25, 1999), Butler App. No. CA98-08-172, at 16, citing Inman v. Inman (1995), 101 Ohio App.3d 115, 120. With respect to expert opinions, trial courts have been deemed “gatekeepers” tasked with screening such evidence for relevancy and reliability. See General Electric Co. v. Joiner (1997), 522 U.S. 136, 142, 118 S.Ct. 512; Valentine v. PPG Industries, Inc., 158 Ohio App.3d 615, 2004-Ohio-4521, ¶ 23. Accordingly, “even in the absence of an objectiоn, the trial court has the inherent power to exclude or strike evidence on its own motion.” Oakbrook Realty
{¶ 15} To be considered on summary judgment, expert opinions must comply with
{¶ 16}
{¶ 17} “A witness may testify as an expert if all of the following apply:
{¶ 18} “(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
{¶ 19} “(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
{¶ 20} “(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. * * *”
{¶ 21} In determining whether an expert‘s opinions are reliable under
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{¶ 23} “An expert basing his opinion оn facts beyond his personal knowledge and/or evidence not otherwise admissible, is in essence giving hypothetical testimony; it is not evidence standing alone that would support or oppose a summary judgment. The evidence the expert relies upon must be admissible in order to create a genuine issue of material fact.” Komenovich, Butler App. No. CA98-08-172, at 16, citing Pennsylvania Lumbermens at 739. “In the case of an expert witness who has no personal knowledge of the facts upon which his opinion is based, * * * it is the expert‘s expertise in a particular field, combined with the factual testimony of other witnesses, that is used to create a genuine issue of material fact.” Pennsylvania Lumbermens at 739.
{¶ 24} In this case, appellant presented the testimony of experts, Thomas Bensen and Richard Marzola, concerning the cause and origin of the subject fire. During his deposition, Bensen indicated he was rеtained to determine the origin of the fire while Marzola was retained to determine its cause. After providing his educational background and training, Bensen indicated that he analyzed the origin of the fire by studying fire patterns, the remaining physical evidence at the scene, and witness statements. Bensen opined that the fire originated in the attic above the master bathroom and spread to other areas of the house
{¶ 25} Marzola testified during his deposition that an examination of the electrical wiring in the attic “indicated a cable routed from the west wall outlet exhibited evidence of electrical arcing and shorting as well as thermal melting.” He further opined that the “cause of the fire was the ignition of combustible materials due to the heat generated by the electrical arcing and shorting that occurred when the hot and neutral conductors came into contact with each other. * * * The cable was damaged during the installation of the home when constructed[.]” Upon further questiоning, however, Marzola admitted that a fire non-electrical in nature can cause arcing that would suggest an electrical cause. Marzola indicated that the only evidence he has in this case that the arcing took place prior to the fire, as opposed to the fire causing the arcing, is the information supplied by Bensen concerning the origin of the fire. He admitted that if Bensen‘s conсlusion as to the origin of the fire is incorrect, his examination of the wiring does not support a determination that electrical arcing was the cause of the fire.
{¶ 26} As an initial matter, the trial court in this case noted that both Bensen and Marzola qualified as experts pursuant to
{¶ 27} In determining Holland‘s summary judgment motion, the court discussed whether Bensen‘s and Marzola‘s opinions were admissible where they were “based upon assumptions contradicted by eye witness testimony.” In doing so, the сourt performed the analysis set forth in Daubert v. Merrill Dow Pharmaceuticals (1992), 509 U.S. 579, 113 S.Ct. 2786, to determine whether Bensen‘s and Marzola‘s opinions were based upon reliable methodology. The court concluded that such opinions were unreliable and speculative due to the undisputed testimony of witnesses who observed the ceiling intact after the fire in the bathroom had burned out. Accordingly, the trial court excluded the opinions and granted summary judgment to Hоlland where no genuine issue of material fact remained as to appellant‘s negligence claim without the testimony of appellant‘s experts.
{¶ 28} Our review of the record demonstrates the trial court properly excluded the opinions of Bensen and Marzola. As an initial matter, we note that such opinions were based upon facts not in evidence, in violation of the requirements of
{¶ 29} Moreover, the record demonstrates the trial court properly excluded the opinions in question as unreliablе, pursuant to
{¶ 30} Finally, contrary to appellant‘s contention, we find the trial court did not improperly weigh witness credibility in determining the admissibility of Bensen‘s and Marzola‘s testimony. Rather, the court considered the undisputed testimony of eye witnesses in relation to thе opinions rendered by Bensen and Marzola, which were based upon unfounded factual assumptions. Because the trial court did not err in excluding the expert testimony of Bensen and Marzola, without which no issue of material fact remained as to appellant‘s negligence claim, we find summary judgment was properly granted to Holland.
{¶ 31} Appellant advances a number of other arguments in support of its solе assignment of error that the trial court erred in granting Holland summary judgment. Appellant first argues the trial court erred in considering Holland‘s reply memorandum and supplemental reply memorandum where neither the court‘s scheduling order nor local rules provided for the filing of the same. Further, appellant argues the trial court erred in granting summary judgment to Holland without affording appellant an opportunity to respond to the supplemental reply memorandum.
{¶ 32} This court has previously recognized that trial courts possess the inherent power to control their own dockets and the progress of court proceedings, and are afforded great
{¶ 33} With respect to summary judgment, due process requires that the parties to an action are afforded sufficient notice and an opportunity to respond before a trial court may grant a motion for summary judgment. Ameritech Publishing, Inc. v. Matejkovic, Butler App. No. CA2007-08-183, 2008-Ohio-2112, ¶ 9. Ohio courts have previously recognized that
{¶ 34} With respect to Holland‘s reply memorandum, we find the trial court did not
{¶ 35} Appellant also argues the trial court erred in considering a letter authored by Robert Higgins, who was one of the witnesses who arrived at the scene of the fire. The letter in question was attached as an exhibit tо Holland‘s deposition. Appellant argues the trial court impermissibly relied upon the letter to establish that the ceiling was intact at the time the fire in the bathroom had burned out.
{¶ 36}
{¶ 37} In this case, we cannot say the admission of Higgins’ letter was prejudicial to appellant. The record demonstrates that sufficient other evidence was presented to support
{¶ 38} Appellant next contends the trial court еrred in disregarding conflicting deposition and affidavit testimony from Marshall, which appellant argues was critical to its res ipsa loquitur argument. Marshall‘s testimony concerned whether other workers were in the attic area following his installation of wiring in the attic during the home‘s construction. We find Marshall‘s testimony irrelevant in light of our foregoing conclusion that summary judgment was properly granted where appellant failеd to demonstrate a genuine issue of fact without the testimony of its fire cause and origin experts.
{¶ 39} Finally, appellant argues the trial court erred in its application of the “physical facts” rule to exclude Bensen‘s and Marzola‘s testimony. Because we have already found that such testimony was properly excluded pursuant to
{¶ 40} Based upon the foregoing, we find appellant‘s sole assignment of error without merit and overrule the same accordingly.
{¶ 41} Judgment affirmed.
WALSH, P.J. and BRESSLER, J., concur.