Case: 08-30874 Document: 00511031017 Page: 1 Date Filed: 02/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 19, 2010
No. 08-30874 Charles R. Fulbruge III
Clerk
VERSAI MANAGEMENT CORPORATION, doing business as Versailles
Arms Apartments,
Plaintiff-Appellant,
v.
CLARENDON AMERICA INSURANCE COMPANY; EMPLOYERS FIRE
INSURANCE COMPANY; ONEBEACON INSURANCE COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before WIENER, GARZA, and ELROD, Circuit Judges.
PER CURIAM:
Appellant Versai Management Corporation (Versai) appeals the district
court’s grant of summary judgment in favor of Appellees Clarendon America
Insurance Company (Clarendon) and Employers Fire Insurance Co. (EFIC) on
(1) Versai’s contract claims for unpaid insurance proceeds for property damage,
business interruption, replacement costs, and code compliance upgrades; and (2)
Versai’s claims that EFIC and Clarendon violated Louisiana law by failing to
promptly settle claims and by misrepresenting the terms of their policies. Versai
also asks this court to find that the district court abused its discretion by
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No. 08-30874
denying Versai’s motion to extend the deadline for filing expert reports. We
affirm in part and reverse in part.
I.
Versai manages the Versailles Arms Apartments in New Orleans.
Versailles Arms Apartments are federally subsidized through the Department
of Housing and Urban Development. The apartments consist of fifty residential
buildings, each consisting of four first-floor apartments and four second-floor
apartments. Forty-nine of the buildings suffered extensive damage during
Hurricane Katrina during August of 2005 and were rendered uninhabitable until
the property was repaired. The fiftieth building was destroyed in a natural gas
explosion during the storm. Following the disaster, Versai notified its insurers
of the hurricane damage to the property and submitted claims with the
assistance of its retained private adjusters and contractors.
In February of 2006, Versai retained SCC Ventures, L.L.C., to conduct
repairs on the property. That month, SCC Ventures estimated that the repairs
would cost $17,878,326. Lloyds of London, which provided $2.5 million in “all
risk” property insurance, paid its policy limits in full in April of 2006. Versai’s
flood insurance provider, the Standard Fire Insurance Company, was originally
party to this suit but settled its claims with Versai for approximately $6 million.
The remaining defendants, Clarendon and EFIC, together provided “non-flood”
insurance on the apartments in excess of the $2.5 million provided by Lloyds,
and this coverage was limited to a maximum recovery of $13,411,288. The
Clarendon and EFIC policies follow the same terms of the underlying Lloyds
Policy, but provided excess coverage once the Lloyds insurance limits were met.
Versai promptly notified all of its insurers about the losses and damage
sustained to the Versailles Arms Apartments after Hurricane Katrina. Agents
and adjusters for the insurers inspected the property throughout 2005 and 2006.
Clarendon and EFIC’s joint adjuster, Bill Adams of McLarens Young
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International, submitted a number of reports to EFIC and Clarendon throughout
early 2006. On May 26, 2006, Adams submitted a report stating that the
companies owed Versai an undisputed sum of $2,972,991.38 each, and an
insurer-produced proof of loss for this amount was then submitted. Clarendon
issued its check for $2,972,991.38 on July 27, 2006, and EFIC issued its check
for the same amount on August 1, 2006. On August 23, 2006, Versai presented
EFIC and Claredon with a sworn statement in proof of loss, which was not
prepared by the insurance companies, for the amount of $6,082,882.69 each.
The companies did not submit additional payment.
In September of 2007, the original $17,878,326 estimate of the cost to
repair the premises increased by approximately ten million dollars to include the
costs of compliance with updated building codes, which would require additional
repairs. No payments for code compliance were rendered. In December of 2007,
Clarendon and EFIC each issued checks to Mark Carrier, Versai’s public
adjuster, for $255,498 for additional items of physical damage and business
interruption. These checks were made payable to Versai, Versai’s mortgage
holder, and “Recov.” (Recovery Management)—the adjusting business Carrier
owned. Versai contends that Carrier forged the requisite endorsements and
stole the money. By the end of 2008, the only completed repairs to the Versailles
Arms Apartments consisted of demolishing portions of the property, gutting
certain areas, re-framing parts of the structure, and repairing some of the
roofing. Versai entered into a contract to sell the apartments to Peltier Gardens,
L.L.C., but the deal ultimately fell through. Versai has since retained ownership
of the apartments.
On August 25, 2006, Versai filed suit against Clarendon and EFIC,
alleging that Clarendon and EFIC had not paid the full amount due under the
excess non-flood policies for property damage, business interruption loss,
replacement costs, and code compliance upgrades. Versai claimed that these
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failures amounted to breaches of contract, breaches of the duties of good faith
and fair dealing, and violations of Louisiana Revised Statutes sections 22:1892
and 22:1973. The trial date was originally set for November 12, 2007, but was
reset to September 2, 2008 upon the parties’ joint motion for continuance. Versai
filed a consent motion to continue on May 30, 2008, but the court denied it.
Versai failed to produce expert reports in advance of the May 30 deadline, but
approximately one month after the deadline passed, Versai moved the court to
extend the deadline. The court denied the extension. In July of 2008, EFIC and
Clarendon moved for summary judgment on all claims. Versai opposed the
motion with affidavits from various fact witnesses, and later filed a motion to
continue based on its discovery of Carrier’s alleged theft. The district court
granted summary judgment for EFIC and Clarendon on all claims, concluding
that Versai had failed to present evidence showing a genuine issue of material
fact. Versai has since filed a timely appeal urging the court to reverse the grant
of summary judgment on all claims.
II.
We review the district court’s grant of summary judgment de novo. See
Paul v. Landsafe Flood Determination, Inc., 550 F.3d 511, 513 (5th Cir. 2008).
Summary judgment will be granted only 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.’” Robinson v. Orient Marine Co.,
505 F.3d 364, 366 (5th Cir.2007) (quoting Fed. R. Civ. P. 56(c)). In making this
determination, we review all facts and inferences in the light most favorable to
the non-movant. Id. “[O]nce the moving party meets its initial burden of
pointing out the absence of a genuine issue for trial, the burden is on the
nonmoving party to come forward with competent summary judgment evidence
establishing the existence of a material factual dispute.” Clark v. America’s
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Favorite Chicken, 110 F.3d 295, 297 (5th Cir. 1997) (citation omitted). After
adequate time for discovery, Rule 56(c) “mandates the entry of summary
judgment . . . against a party who 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.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The district court’s interpretation of an insurance policy presents an issue
of law reviewed de novo. See Finger Furniture Co. v. Commonwealth Ins. Co.,
404 F.3d 312, 314 (5th Cir. 2005). We review a court’s enforcement of a
scheduling order under the abuse of discretion standard. See Sturgeon v.
Airborne Freight Corp., 778 F.2d 1154, 1157-58 (5th Cir. 1985).
III.
Versai contends it produced evidence showing a genuine issue of material
fact on its claims against the insurers for property loss, business interruption
loss, housing code compliance costs, and replacement costs. We review these
claims individually.
A.
Versai challenges the district court’s grant of summary judgment for EFIC
and Clarendon with respect to its property loss claims. According to Versai,
EFIC and Clarendon owe a total of approximately $12 million for property
loss—the amount set out in Versai’s August 23, 2006 proofs of loss sent to EFIC
and Clarendon. The district court found that Versai had presented “no
evidence” to show that it was entitled to additional compensation beyond the
approximately $6 million it had already received from EFIC and Clarendon
because: (1) Versai failed to support its August 23 proofs of loss with
documentation; (2) Versai failed to submit timely expert reports to support its
claims; and (3) Versai’s argument was estopped because a deposition from its
company president, Melanie Meyer, contradicted its claim for relief.
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Versai argues that the district court was not at liberty to grant summary
judgment based on its “failure” to support its August 23 proofs of loss with
additional documentation where the insurance policy created no such obligation.
We agree. Versai’s insurance policies with Clarendon and EFIC contained a
requirement for submitting a proof of loss to obtain insurance payments. The
section of the Excess Property Conditions policy, entitled “Proof of Loss,” is as
follows:
The insured shall file with this Company, or its agent, within ninety
(90) days from the date of discovery of the loss occurrence, a proof of
loss signed and sworn to by the insured, stating to the best
knowledge and belief of the insured:
A) The interest of the insured and of all the others in the property
affected;
B) The value of each item thereof and the amount of loss or damage
thereto;
C) All encumbrances thereon;
D) All other contracts of insurance, whether valid or not, covering
any of the property affected, and shall furnish a copy of all the
descriptions and schedules in all such insurance policies, if required.
The plain reading of this section reveals no requirement for additional
documentation to support a proof of loss. Despite their failure at oral argument
to cite any language from the policy imposing such a requirement, EFIC and
Clarendon urge us to read this requirement into the policy because “all” similar
insurance policies require documentation. If this is so, their policy breaks the
mold. We will not read in such a requirement where none exists.
As the policy language does not preclude recovery, we must determine
whether Versai submitted evidence demonstrating its entitlement to additional
payment for property damage which could permit a reasonable jury to find in
Versai’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We
find that the affidavits from Meyer and Mark Mueller, the CEO of SCC
Ventures, were sufficient to raise a genuine issue of material fact. Our circuit
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has held that expert testimony is “essential” for proving the costs of
reconstruction, Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007),
but lay witnesses may properly testify to the work that has been performed on
the property thus far and which projects have been funded by the proceeds
Versai has already received. Likewise, Versai’s claim is not foreclosed by
Meyer’s deposition testimony, in which she indicated Versai had no further
claims against EFIC and Clarendon. Versai contends that the deposition
testimony was based on information she received from Carrier, and it was taken
before Meyer discovered that Carrier stole two checks from the insurers, which
were to be paid to Versai. This situation suggests “the presence of arguable
factual contradictions that must be resolved by a fact finder, an exercise
proscribed at the summary judgment stage of the case.” Carroll v. Metro. Ins.
& Annuity Co., 166 F.3d 802, 808 (5th Cir. 1999). Therefore, summary judgment
was unwarranted.
B.
Versai also disputes the district court’s grant of summary judgment on its
claim for additional payment for business interruption losses. Versai argues
that it never received any portion of the alleged $1,400,000 suffered in business
interruption losses following the destruction of the Versailles Arms Apartments
in Hurricane Katrina.1 The district court granted summary judgment for EFIC
and Clarendon on the basis that Versai had already been compensated for
upper-floor business interruption losses by the two checks, in the amount of
$255,498 each, which were given to Carrier. Because the propriety of the court’s
grant of summary judgment can be resolved on the basis of the additional losses
to the lower-floor apartments, we need not address the question of whether
1
The policy’s business interruption extension covered any “loss resulting from
necessary Interruption of Business caused by Direct Physical Loss or Damage . . . to property
insured by” the policy.
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Versai may recoup from EFIC and Clarendon the amount of the checks paid to
Carrier.
Versai argues that its fact-witness affidavits, particularly that of company
president Melanie Meyer, are sufficient to support its claims for business
interruption losses. This court has held that Meyer, as the owner of a business,
may properly testify to the value of that business. LaCombe v. A-T-O, Inc., 679
F.2d 431, 433-34 (5th Cir. 1982); see United States v. 329.73 Acres of Land, 666
F.2d 281, 284 (5th Cir. 1982). The Federal Rules of Evidence, which typically
apply in diversity jurisdiction cases, confirm that Meyer’s position as company
president permits her a broader range of testimony than a traditional lay
witness would possess when testifying to matters concerning Versai’s business.
See Tex. A&M Research Found. v. Magna Transp., 338 F.3d 394, 403 (5th Cir.
2003); DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679, 685 (5th Cir. 2003);
accord Fed. R. Evid. 701 advisory committee’s note on the 2000 amendments.
Meyer testified that “Versai has been unoccupied since the hurricane” and the
“losses in income as a result of the wind damage to the property easily exceed
$1.4 million dollars,” an amount greater than the amount paid to Carrier.
Meyer’s affidavit also distinguishes between the business losses sustained on the
second floor, at least a portion of which was paid to Carrier, and the alleged
wind-caused losses on the first floor, which have not been paid. These
statements are sufficient to raise an “issue of material fact” suggesting that
Versai was entitled to compensation for business-interruption losses on the first-
floor apartments, even if Meyer’s affidavit is insufficient to support the full $1.4
million Versai seeks. See Celotex Corp, 477 U.S. at 322 (1986); see also Fed. R.
Civ. P. 56(e).
C.
Versai contests the district court’s grant of summary judgment on its claim
for payment for the costs of bringing the Versailles Arms Apartments into
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compliance with current building codes. The district court granted summary
judgment for EFIC and Clarendon because Versai had not produced any
evidence showing it had incurred such costs—a prerequisite to payment under
the terms of the insurance contract.
Versai’s insurance policy includes a “Municipal Ordinance Extension”
covering regulatory compliance costs incurred because of property damage from
an event such as Hurricane Katrina. When certain preconditions are met, the
policy then “insures costs actually and necessarily incurred in (a) the demolition
and clearing of the site of the undamaged portion of the insured building, and
(b) reconstructing the building to conform with the law or ordinance.” (emphasis
added). Versai concedes that “the repairs [to the Versailles Arms apartments]
have not been completed,” and it fails to identify any costs which have already
been incurred. Although Versai may be able to show anticipated costs of
complying with current building codes, Versai’s insurance policy is explicit:
Versai is not entitled to costs of compliance until after it has incurred the
expenses of code compliance. Where the language of an insurance policy is clear
and unambiguous, courts must enforce it as it is written. Reynolds v. Select
Props. Ltd., 634 So. 2d 1180, 1183 (La. 1994). Thus, the district court did not
err in granting summary judgment for EFIC and Clarendon on this claim.
D.
Versai’s claim for replacement costs likewise was properly dismissed
because Versai has not completed repairs on its property as required by the
insurance policy. The Lloyds insurance policy insured the Versailles Arms
Apartments property against “Risks of Direct Physical Loss or Damage,” and the
policy’s basis of valuation hinges on Versai’s replacement efforts. The
“Replacement Cost Endorsement” provision of the insurance policy states, in
Subparagraph “d,” that “[u]ntil replacement has been effected the amount of
liability under this Policy in respect of loss shall be limited to actual cash value
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at the time of loss.” Subparagraph “c” requires Versai to execute this
replacement with “due diligence and dispatch.” The district court interpreted
these provisions to mean that “[t]he insured cannot recover replacement costs
until such time as repairs are actually made.”
Versai asks the court to find that the insurers’ duties to pay replacement
costs is triggered when Versai demonstrates “readiness” to enact replacements
on the property. The language of the contract does not support this
interpretation. Versai also argues that the district court improperly concluded
that Versai had sold its property to another entity, and was not going to repair
the property. Versai is correct that the proposed sale of the property to Peltier
Gardens fell through. Nevertheless, Versai is not entitled to payment because
it has not made the requisite replacements to be entitled to reimbursement.
IV.
The district court also granted summary judgment to EFIC and Clarendon
on Versai’s claims for relief under Louisiana Revised Statutes sections 22:1892
and 22:1973.2 These statutes vest the insurer with “an affirmative duty to
adjust claims fairly and promptly and to make a reasonable effort to settle
claims with the insured.” La. Rev. Stat. Ann. § 22:1973(A); accord La. Rev. Stat.
Ann. § 22:1892. Sections 1892(B)(1) and 1973(B)(5) penalize insurers for failing
to pay claims within thirty and sixty days, respectively, after receiving
satisfactory proof of loss, but only if such failure is “arbitrary, capricious, or
without probable cause.” An insurer also bears an affirmative duty to disclose
coverages to insured parties, and section 1973(B)(1) defines an insurer’s
2
Louisiana Revised Statutes section 22:1892 was referred to in briefing as section
22:658. Section 22:658 was redesignated as section 22:1892 by Acts 2008, No. 415 section 1,
effective Jan. 1, 2009. Section 22:1973, referred to in briefing as section 22:1220, was
redesignated as section 22:1973 by this same Act.
We also note that section 22:1892 was amended on July 10, 2009 to allow for emergency
exceptions for the payment periods allowed to insurers, but the amendment does not affect the
outcome of the case.
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“[m]isrepresent[ation of] pertinent facts or insurance policy provisions relating
to any coverages at issue” as a breach of the insurer’s duty of good faith and fair
dealing. La. Rev. Stat. Ann. § 22:1973(B)(1).
Versai argues that it has raised a genuine issue of material fact regarding
whether EFIC and Clarendon (1) acted in bad faith in failing to pay claims by
the deadlines set out in sections 1892(B)(1) and1973(B)(5) after receiving
satisfactory proofs of loss; and (2) violated section 1973(B)(5) when their
independent adjuster, Bill Adams, made misrepresentations to Versai
concerning the availability of code upgrade coverage. We address these claims
in turn.
A. Failure to Pay Within the Statutorily Prescribed Time Period
To prove that EFIC and Clarendon breached their insurers’ duties to
timely pay Versai’s claims, Versai must show that “(1) the insurer has received
satisfactory proof of loss, (2) the insurer fails to tender payment within thirty
days of receipt thereof, and (3) the insurer’s failure to pay is arbitrary,
capricious, or without probable cause.” La. Bag Co. v. Audubon Indem. Co., 999
So. 2d 1104, 1112-13 (La. 2008) (citing La. Rev. Stat. Ann. § 22:658, now
§ 22:1892 ); see also Dickerson v. Lexington Ins. Co., 556 F.3d 290, 297 (5th Cir.
2009). With regard to the first factor, Louisiana has adopted “liberal rules
concerning the lack of formality relative to proof of loss.” Sevier v. U.S. Fid. &
Guar. Co., 497 So. 2d 1380, 1384 (La. 1986). So long “as the insurer obtains
sufficient information to act on the claim, ‘the manner in which it obtains the
information is immaterial.’” Id. (quoting Austin v. Parker, 672 F.2d 508, 520
(5th Cir. 1982)). Thus, a “satisfactory proof of loss occurs when the insurer has
adequate knowledge of the loss.” In re Hannover Corp. of America, 67 F.3d 70,
73 (5th Cir. 1995) (citations omitted).
Versai’s ability to prove the first and second elements of its statutory
claims depends on the date upon which the insurers received sufficient
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information to act on Versai’s insurance claims. The record shows that EFIC
and Clarendon received the insurer-produced “Sworn Proof of Loss” form for the
amount of $2,972,991.38 each on July 21, 2006 and July 25, 2006, respectively.
Clarendon paid Versai $2,972,991.38 on July 27, 2006, and EFIC paid that
amount to Versai on August 1, 2006. However, Versai points out that on May
26, 2006, the joint adjuster for the insurers issued a report stating that the EFIC
and Clarendon each owed, at a minimum, an “undisputed amount of
$2,972,991.38.” Versai argues that this report, rather than the “Sworn Proof of
Loss” form, was the “satisfactory proof of loss” for purposes of determining
whether statutory deadlines were met because it gave the insurers adequate
notice of the undisputed claim. The May 26 report, with its clear statement
setting out the undisputed amount of loss, is more formal in nature than other
sources which have sufficed as satisfactory proofs of loss under Louisiana’s
liberalized interpretation. See Youngblood v. Allstate Fire Ins. Co., 349 So.2d
462, 465 (La. App. 3d Cir. 1977) (finding that a satisfactory proof of loss was not
required to be in writing). The report may be sufficient to show that EFIC and
Clarendon possessed adequate knowledge of the undisputed claim, and if so, the
statutory time periods began to run on May 26. Therefore, we conclude that
Versai produced sufficient evidence on the first two prongs. See In re Hannover
Corp. of America, 67 F.3d at 73.
EFIC and Clarendon argue that Versai produced no evidence on the third
prong to show that the insurers acted in an “arbitrary and capricious” manner.
The Louisiana Supreme Court has recognized that “[a]ny insurer who fails to
pay [an] undisputed amount has acted in a manner that is, by definition,
arbitrary, capricious or without probable cause . . . . ” La. Bag. Co., 999 So. 2d
at 1116 (citation omitted) (emphasis added). Thus, the failure to pay an
undisputed amount is a per se violation of the statute. See id. EFIC and
Clarendon attempt to distinguish the facts of this case by showing that their
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eventual payment and the length of delay compare favorably with the actions of
the insurer in Louisiana Bag, but merely behaving in a less-arbitrary and
capricious manner does not absolve insurers of the consequences of delay. See
id. Thus, EFIC and Clarendon are not entitled to summary judgment.
B. Misrepresentation
Versai is also entitled to a reversal of the district court’s grant of summary
judgment on its claim of misrepresentation under Louisiana Revised Statutes
section 22:1973B(1). Versai argues that it provided evidence that EFIC and
Clarendon’s adjuster, Adams, misrepresented the availability of insurance
upgrades for compliance with updated building codes. A “misrepresentation”
occurs when an “an insurer either makes untrue statements to an insured
concerning pertinent facts [of a policy] or fails to divulge pertinent facts to the
insured.” McGee v. Omni Ins. Co., 840 So. 2d 1248, 1256 (La. App. 3d Cir. 2003).
The terms of the statute require that the misrepresentations relate to a
“coverage issue” which would “involve facts about the policy itself, such as the
amount of coverage, lapse or expiration of the policy, or exclusions from
coverage.” Imperial Trading Co. v. Travelers Prop. Cas. Co., No. 06-4262, 2009
WL 2356290, at *3 (E.D. La. July 27, 2009) (citations and internal quotation
marks omitted).
Code upgrade coverage is a “coverage issue” under the statute, so a
misrepresentation of code upgrade coverage would be a statutory violation.
Versai presented evidence that Adams, EFIC and Clarendon’s joint adjuster,
testified in deposition that he did not know that upgrade coverage was available
to the insured under the Clarendon policy (the excess policy) when he first met
with Versai and Carrier. Adams further admitted that he was informed later
that code upgrades applied under the policy. However, in Adams’s report from
November 2005, Adams noted that Versai had coverage for code upgrades under
“the first excess layer of primary coverage.” Clarendon and EFIC argue that
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Versai’s reliance on these misrepresentation was “unreasonable as a matter of
law” because Adams’s representation differed from the terms of the policy, and
“the insured had a duty to read the policy.” Section 22:1973(B)(1) does not
require a plaintiff to demonstrate “reasonable reliance” on the
misrepresentation. Further, the insurers’ interpretation would obliterate section
22:1973(B)(1), which equates a misrepresentation of the policy’s terms with a
breach of the insurer’s duty of good faith and fair dealing. Thus, we find that
Versai has alleged facts sufficient to preclude summary judgment on its
misrepresentation claim.
V.
Finally, Versai argues that the district court abused its discretion when
it had denied Versai’s motion to extend the deadline to produce expert witness
reports. A district court’s scheduling decision is reviewed for abuse of discretion,
and that discretion is “exceedingly wide.” HC Gun & Knife Shows, Inc. v. City
of Houston, 201 F.3d 544, 549 (5th Cir. 2000). When a district court sets its
calendar, the court “must consider not only the facts of the particular case, but
also all of the demands on counsel’s time and the court’s [time].” Id. at 549-50
(citation and internal quotation marks omitted). The district court’s decision “to
exclude evidence as a means of enforcing a pretrial order ‘must not be disturbed’
absent a clear abuse of discretion.” Geiserman v. MacDonald, 893 F.2d 787, 790
(5th Cir. 1990) (citation omitted). We review the court’s exercise of discretion to
refuse to extend the expert report deadline by considering the following four
factors: “(1) the explanation for the failure [to submit the expert report]; (2) the
importance of [the report]; (3) potential prejudice in allowing [the report]; and
(4) the availability of a continuance to cure such prejudice.” Id. at 791 (citation
omitted).
Versai’s excuses for failing to submit timely expert reports are weak. The
deadline to produce such reports was May 30, 2008. Versai blamed its tardiness
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on the Department of Housing and Urban Development’s delay in approving its
requests for experts, but Versai did not demonstrate that it contacted the
Department in a timely matter. Versai also states that it had relied on the
anticipated granting of its consent motion to continue. This reliance was not
reasonable, as another continuance had already moved the trial date from
November 12, 2007 to September 2, 2008. The second factor favors Versai. The
expert reports were of great significance to Versai’s claims for additional
proceeds for property damage. The reports also would have aided Versai’s claim
for payment for business interruption. EFIC and Clarendon have not explained
why the extension would have caused them prejudice. Versai did in fact file a
motion to continue, which the court denied, but this factor does not strongly
favor Versai in light of the court’s justifiable reluctance to grant another such
request after granting a lengthy continuance on the parties’ first request.
Versai argues, without support, that when the court extends a deadline for
one party, the court abuses its discretion if it does not extend the same courtesy
to the opposing party. Even if Versai could prove that the district court extended
a deadline on behalf of EFIC and Clarendon, we would nevertheless refuse to
adopt Versai’s proposed rule that would limit the court’s broad discretion over
matters concerning its own docket. See Streber v. Hunter, 221 F.3d 701, 736 (5th
Cir. 2000). Therefore, we conclude that the district court did not err in failing
to grant a continuance and a motion to extend the deadline for filing expert
reports.
CONCLUSION
We AFFIRM the district court’s grant of summary judgment for EFIC and
Clarendon on Versai’s claims for building code compliance and replacement
costs, and we also AFFIRM the court’s denial of Versai’s motion to extend the
expert report deadline. We REVERSE the grant of summary judgment on
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Versai’s claims for property damage and business interruption, along with its
statutory claims for failure to render timely payment and misrepresentation of
coverage. We remand to the district court for further proceedings in accordance
with this opinion.
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