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Belfor USA Group, Inc. v. Banks

United States District Court, D. South Carolina, Charleston Division

July 14, 2016




         This matter comes before the court on plaintiff and counterclaim defendant Belfor USA Group, Inc.’s (“Belfor”) motion for summary judgment, ECF No. 40, motion to exclude defendants and counterclaimants James and Rebecca Banks’ (“the Banks”) antique experts, ECF No. 47, and motion to exclude the Banks’ construction experts, ECF No. 49. For the reasons set forth below, the court grants Belfor’s motions to exclude the Banks’ construction and antique experts and grants in part and denies in part Belfor’s motion for summary judgment.

         I. BACKGROUND

         Belfor is Colorado corporation with a principal place of business in Birmingham, Michigan. Compl. ¶ 2. Belfor operates as a restoration company providing emergency disaster recovery and property restoration. Id. ¶ 8. The Banks are citizens of South Carolina. Id. ¶ 3. On November 11, 2011, a fire partially destroyed the Banks’ home located on 816 South Main Street in Summerville, South Carolina. Id. ¶ 9. The parties entered into a contract on November 13, 2011, under which Belfor agreed to perform fire-remediation and fire-restoration work on the Banks’ home and their personal property. Id. ¶ 10.

         Under the terms of the contract, the Banks “transfer[red], assign[ed], and convey[ed] [] their right, title, and interest in and to the insurance policy proceeds” to Belfor. Compl. Ex. A. The Banks also agreed to “immediately endorse and tender all drafts produced” to Belfor. Id. Belfor performed the fire-remediation and restoration work and issued invoices to the Banks totaling $337, 928.64. Pl.’s Mot. 1. Belfor alleges that the Banks have refused to pay the remaining balance of $161, 593.79, despite receiving payment from its insurer for Belfor’s materials and services. Compl. ¶¶ 18-19; see also Pl.’s Mot. 2.

         On April 28, 2015, Belfor filed the present action against the Banks, bringing claims for breach of contract, conversion, and quantum meruit. On May 18, 2015, the Banks filed an answer, asserting counterclaims against Belfor for negligence, negligence per se, and violation of the South Carolina Unfair Trade Practices Act (“SCUPTA”). On September 9, 2015, the court granted in part and denied in part Belfor’s motion to dismiss and dismissed the Banks’ SCUPTA claim without prejudice. Belfor filed a motion for summary judgment pertaining to its breach of contract claim and the Banks’ negligence and negligence per se counterclaims, and two motions to exclude the Banks’ experts on April 11, 2016. The Banks filed a joint response to all three motions on April 29, 2016.[1]The court conducted a hearing on all three motions on May 19, 2016. The motions have been fully briefed and are ripe for the court’s review.

         II. STANDARD

         A. Summary Judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who, ‘after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Any reasonable inferences are to be drawn in favor of the nonmoving party. See Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However, to defeat summary judgment, the nonmoving party must identify an error of law or a genuine issue of disputed material fact. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); see also Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003).

         Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson, 477 U.S. at 252; Stone, 105 F.3d at 191. Rather, “a party opposing a properly supported motion for summary judgment . . . must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat, 346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010)). If the adverse party fails to provide evidence establishing that the factfinder could reasonably decide in his favor, then summary judgment shall be entered “regardless of ‘[a]ny proof or evidentiary requirements imposed by the substantive law.’” Id. (quoting Anderson, 477 U.S. at 248).

         B. Motions to Exclude

         Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose to other parties the identity of any witness it may use at trial to present evidence. If the witness is one retained or specially employed to provide expert testimony, the disclosure must be accompanied by a written report-prepared and signed by the witness. Id. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1) (emphasis added). “In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule ...

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