United States District Court, S.D. Mississippi, Western Division
HUDSON SPECIALTY INSURANCE COMPANY PLAINTIFF/ COUNTER-DEFENDANT
TALEX ENTERPRISES, LLC; JUBILEE PERFORMING ARTS CENTER, INC.; TERRANCE L. ALEXANDER; and the BOARD OF MAYOR AND SELECTMEN OF MCCOMB, MISSISSIPPI, et al. DEFENDANTS/COUNTER-CLAIMANTS
Bramlette United States District Court Judge.
MATTER is before the Court on Plaintiff/Counter-Defendant
Hudson Specialty Insurance Company
(“Hudson”)'s Motion to Strike Expert
Causation Opinions (Doc. 204), and
Defendants/Counter-Claimants Talex Enterprises, LLC
(“Talex”); Terrance L. Alexander
(“Alexander”); Jubilee Performing Arts Center,
Inc. (“Jubilee”); and, the Board of Mayor and
Selectmen of McComb, Mississippi (“McComb”)'s
Response in Opposition to Motion to Strike Expert Causation
Opinions (Doc. 216). The Court having examined the motions,
memoranda in support, and the applicable statutory and case
law, and being fully advised in the premises, finds that the
Motion to Strike Expert Causation Opinions should be DENIED.
a case arising out of an insurance dispute between Hudson
Specialty Insurance Company and Talex Enterprises, LLC,
Jubilee Performing Arts Center, Terrance L. Alexander and the
City of McComb. The dispute arises out of an incident
involving a property insured by Hudson, the JPAC Building,
located at 230-232 Main Street, McComb, Mississippi. The JPAC
Building is listed under two policies of insurance issued by
Hudson. Talex owns the JPAC Building and, at the time of the
incident, Jubilee operated a performing arts school out of
the building. Alexander is the principal for both Talex and
is the named insured under one policy, No. HBD10027329, (the
“Talex Policy”), which provides building property
coverage and commercial general liability coverage. Alexander
d/b/a Jubilee is the named insured under the other policy,
No. HBD10019191, (the “Alexander Policy”), which
provides personal property coverage and commercial general
JPAC Building collapsed on July 23, 2017. After the collapse,
the remaining portions of the JPAC Building required
immediate stabilization to render them safe. McComb declared
an emergency condition and hired Mr. Laird, an engineer with
Laird & Smithers, Inc., to “prevent further injury
and property destruction.” McComb designated Mr. Laird
as a non-retained expert for this trial. Mr. Laird's
report claimed that the collapse was caused by the fact that
the JPAC Building “had been reroofed many times without
removal of the degraded underlying roofing materials; thus
adding additional weight to the roof structure.” (Doc
204-6, Laird Report p. 2).
also designated Steve Cox as a non-retained expert. Mr. Cox
is a local architect who owned property neighboring the JPAC
Building. In the initial disclosure, Mr. Cox opined that the
building collapsed because of the condition of very old
mortar and not because of water standing on the building roof
or because of roof repair.
puts forth two reasons to strike the opinions of
Defendants/Counter-Claimants' experts: (1) the opinions
challenge or are inconsistent with the ‘admitted'
facts regarding the partial collapse of the JPAC building,
and (2) Defendants/Counter-Claimants acted in bad faith in
designating its experts. The Court will address each in turn.
issue is the Contract of Assignment of Chose in Action (Doc.
67-1) (“The Contract” or “The
Assignment”). In The Assignment
Defendants/Counter-Claimants agreed and contracted that
attorney Wayne Dowdy would undertake joint representation of
Alexander; Jubilee; Talex; and McComb in the pending Federal
Court Action filed by Hudson. The Assignment also stated that
the claims of McComb would be made solely under the
commercial general liability coverage of the insurance
policies issued by Hudson. In this contract, the parties
agreed that a large amount of rainwater had collected on the
JPAC roof and the weight of the rainfall was the proximate
cause of the collapse. See (Doc. 67-1 Ex. A). Hudson
claims that the statement in The Assignment qualifies as a
judicial admission, removing the question of causation from
judicial admission is binding upon the party making it. To
qualify as a judicial admission a statement must be (1) made
in a judicial proceeding; (2) contrary to a fact essential to
the theory of recovery; (3) deliberate, clear, and
unequivocal; (4) such that giving it conclusive effect meets
with public policy; and (5) about a fact on which a judgment
for the opposing party can be based. See Heritage Bank v.
Redcom Labs., Inc., 250 F.3d 319, 329 (5th Cir. 2001).
The effect of a judicial admission is to withdraw a fact from
contention. See Martinez v. Bally's Louisiana,
Inc., 244 F.3d 474, 476 (5th Cir. 2001).
of judicial admissions are “admissions in the pleadings
in the case, in motions for summary judgment, admissions in
open court, stipulations of fact, and admissions pursuant to
requests to admit.” See 6 Handbook of Fed.
Evid. §801:26 (8th ed.). A judicial admission is a
“formal concession in the pleadings or stipulations by
a party or counsel that is binding on the party making
them.” See Martinez, 244 F.3d at 476-477. A
judicial admission should not be confused with an evidentiary
admission, which may be “controverted or explained by
the party.” See id.
first requirement of a judicial admission is that it be made
in a judicial proceeding. The
Defendants/Counter-Claimants' statement in The Assignment
does not form any part of the pleadings in this proceeding.
The contract at issue was not made in a pleading,
stipulation, deposition, testimony, response to request for
admissions, or in counsel's statements to the court. As
such, the terms of the ...