Washington Court of Appeals Holds that Summary Judgment is Proper if the Non-Moving Party’s Expert Opinion is Inadmissible Under Frye

Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 167 Wn. App. 28, 272 P.3d 249 (Wash. Ct. App. 2011)

Although summary judgment is improper when opposing experts present conflicting testimony on a genuine issue of material fact, this case demonstrates that a trial court can grant summary judgment if the non-moving party’s expert testimony is inadmissible under the Frye standard. 

In this case, a homeowners association sought insurance coverage when it discovered that its condominiums had been damaged by rot.  The association offered the expert testimony in question as the only proof that the building damage should be covered by the insurance policy.  The Washington Court of Appeals, Division I, held that summary judgment was proper because, although the opposing experts’ testimonies did conflict, the association did not offer admissible testimony to create a genuine issue of material fact regarding the source of the building damage.

The Lake Chelan Shores Homeowners Association (“the association”) took out three annual insurance policies with St. Paul Fire & Marine Insurance Company (“St. Paul”) to cover its condominiums for “collapse.”  These policies were effective from August 3, 1996 to August 3, 1999 and covered collapse as a result of several enumerated causes, including “hidden decay.”  But the condominiums were not covered by insurance if they collapsed as a result of “wear and tear” or “wet or dry rot.”

In 2006, the association discovered that its condominiums had been damaged by rot and hired an engineering firm to investigate the cause.  The engineers concluded that the building had begun to rot during the period of time that the condominium was covered by its insurance policies with St. Paul.  To remedy the property damage, the association paid to remove and replace all of the siding on the condominiums and tendered a claim to St. Paul.  When St. Paul refused coverage, the association demanded $300,000 in investigative costs and sued St. Paul for breach of contract, bad faith, and Consumer Protection Act violations.

After the association filed the action, it offered expert testimony that the condominiums had been in a state of “collapse” during the policy periods.  This testimony was the only evidence that the association offered to prove that the damage was covered by the insurance policies.  In response to that expert testimony, St. Paul denied the claim and moved for partial summary judgment as to coverage.  This motion was premised on the argument that the experts had no “generally accepted scientific basis” linking the decay to a state of collapse under the policy terms.

The facts showed that one of the association’s experts first indicated in an email that it was impossible to backdate the present rot condition to determine if it was present during the applicable policy period.  But in a later deposition, the same expert claimed that it was possible to trace the rot progression using a formula.  The expert had acquired the formula from a colleague and could not identify any scientific literature or other experts that verified the accuracy of the formula. A second expert for the association also could not identify any scientific community support for the formula.  In response to St. Paul’s motion, the association submitted an additional declaration from one of its experts.  But that declaration did not provide any further evidence that this formula was generally accepted by the scientific community.  In his declaration, the expert asserted that scientists generally accept that rot has a lag phase and a growth phase, but did not discuss if the scientific community generally accepted the use of such formulas to backdate when rot had progressed to the point of collapse.

Because the association failed to provide any additional evidence of general acceptance, the trial court granted partial summary judgment for St. Paul as to coverage.  The court then dismissed the remaining extracontractual claims.

On appeal, the association argued that summary judgment was improper because the parties had presented conflicting testimony from opposing experts regarding a material fact, the source of the collapse.  The association also argued that the trial court had essentially conducted a Frye hearing on the experts’ methods.  But the appellate court explained that the association had misunderstood the basis of the trial court’s ruling—the trial court had granted summary judgment because St. Paul had indisputably demonstrated that the methods used by the association’s experts were not generally accepted.  The appellate court affirmed the trial court’s grant of summary judgment for St. Paul and adopted its reasoning, finding that the uncontested evidence offered by St. Paul during summary judgment proceedings established that the association’s expert testimony was not generally accepted by the scientific community.

The association also contended that the trial court erred because it denied the association’s motion to compel discovery on the extracontractual claims and CR 56(f) motion to continue St. Paul’s summary judgment hearing until St. Paul had complied with those discovery requests.  The association’s additional discovery request related to St. Paul’s alleged failure to investigate the condominiums for rot.  The association claimed that St. Paul should have investigated the buildings for rot using the same unaccepted formula that the association’s experts had used.

The appellate court held that the trial court did not abuse its discretion by denying those motions.  Because the formula was not generally accepted by the scientific community, St. Paul’s failure to use that formula was not proximately related to the association’s investigative and remedial costs.  As such, the motion to compel discovery was not reasonably calculated to lead to the discovery of admissible evidence. CR 26(b)(1).  Because additional discovery on this issue would be fruitless, it was unnecessary for the court to continue the summary judgment proceedings to accommodate those requests.

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