In Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co. (Division 1, March 12, 2012) (previously unpublished), the plaintiff sought to establish that the “collapse” (as defined in the relevant policy documents) of its condominium occurred during its policy’s coverage period—between 1996 and 1999. The plaintiff tendered its claim in 2007, which means some expert opinions were required to determine whether the claimed collapse had occurred during the relevant three-year window some ten years prior.
The defendant moved for summary judgment arguing that the plaintiff had not offered sufficient expert testimony that could be accepted by the jury and from which the jury could conclude that the collapse occurred during the relevant period. The trial court agreed and therefore granted summary judgment. The Court of Appeals affirmed.
This opinion illustrates the (sometimes interesting) situation of summary judgment motions in the face of competing expert testimony. The defendant’s summary judgment motion was not a typical Frye motion, in which the Court would have been required to determine whether the plaintiff’s proffered expert testimony was based on generally accept science. Such a motion or hearing would require the Court to weigh facts and competing expert opinions—something not allowed on summary judgment. Rather, the summary judgment motion argued that the record contained insufficient evidence for any finder of fact to conclude that the plaintiff’s expert testimony was generally accepted. The defendant asserted that the record contained insufficient evidence of general acceptance.
As the Court of Appeals explained:
[The defendant] pointed to an absence of evidence that the bases of the opinions offered by [the plaintiff’s] experts were generally accepted and [the plaintiff] failed to respond. In light of this unrebutted evidence, the trial court did not err in concluding that the opinions were inadmissible and that [the plaintiff] could not prove a collapse condition existed during the coverage period.
Accordingly, summary judgment can be granted despite the existence of competing expert testimony if there is no issue of fact regarding the general acceptance of one party’s proffered expert opinions.
An amusing side note: The “expert opinion” that the Court rejected was a formula offered by the plaintiff’s expert, which he invented to determine the historical progression of condominium rot. The formula was y = ax^2 + c, where y is the percent of decay, x is the number of years, a is a decay rate, and c is a constant for the lag time between the completion of construction and the start of the rot. One of the declarations offered in support of the “general acceptance” of the formula stated the following:
This is a formula . . . which approximates my observations, and those of other engineers in the field. . . . Equations such as this are commonly used by engineers and others for various applications.
So other people, including some engineers, use other equations for various other purposes, and therefore this particular equation that was invented for this particular purpose in this litigation has been generally accepted? It is no surprise that the Court of Appeals latched onto this particular declaration of “support” as a basis for rejecting the proffered opinion.