Dybo, Inc. v. Erie Insurance Company

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DYBO, INC.
Plaintiff,
CASE NO. 3:24-cv-303
JUDGE WALTER H. RICE
V.
ERIE INSURANCE CO.
Defendant.
DECISION AND ENTRY OVERRULING MOTION FOR SUMMARY JUDGMENT OF
DEFENDANT ERIE INSURANCE COMPANY (DOC. #36); CAPTIONED CASE SHALL
PROCEED TO TRIAL
This matter is before the Court on the Motion for Summary Judgment of
Defendant Erie Insurance Company (Doc. #36). For the reasons set forth below,
the Motion is OVERRULED.
I. Factual Background and Procedural History
A. Undisputed Facts
"The matter stems from an insurance claim for damage to a one-story
repurposed bowling alley currently operating as a dog kennel located at 4901
Linden Ave., Dayton, Ohio 45432 (the 'Property') caused by storms that occurred
on February 27, 2023, and March 3, 2023 (the 'Storms'). " (Memo. in Opp., Doc.
#45, PAGEID 1006, citing First Am. Compl., Doc. #31, PAGEID 328-31, IIfl 8-13). The
Storms lifted the northwest corner of the roof of the Property, owned by Plaintiff
Dybo, Inc., while also cracking the roof's liquid-applied roof membrane ("LARM"),
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Storms lifted the northwest corner of the roof of the Property, owned by Plaintiff
Dybo, Inc., while also cracking the roof's liquid-applied roof membrane ("LARM"),
"which allowed rainwater to intrude into the Property. " [Id., citing W. Gerbick
Dep., Doc. #42-1, PAGEID 834, 835, 851-52, 858). Additionally, one or more of the
metal roof panels have been permanently bent or deformed, and "cracking or
compromise of the LARM coating caused by wind would constitute . .. damage
that would need to be repaired in order to put the roof back into its pre-loss
condition. " {Id. at PAGEID 1007, citing Doc. #42-1, PAGEID 834-35, 846-47; B.
Wright Dep., Doc . #46-1, PAGEID 1032)).
The parties disagree as to whether the LARM cracked because of the wind
uplift, hailstones, and water intrusion, as argued by Plaintiff's experts (E. Etienne
Dep., Doc. #39-1, PAGEID 645-48; P. Mayfield Dep., Doc. #41-1, PAGEID 769-71,
776, 780; Doc. #46-1, PAGEID 1032), or "improper application of the LARM
coating, deterioration of the coating, or movement of panels from expansion and
contraction due to heat or vibrations from normal wind events[, ]" as opined by
Defendant's expert. (Doc. #45, PAGEID 1007-08, citing Doc. #42-1, PAGEID 835-36,
840-41, 844-45). According to Plaintiff's expert Elijah Etienne, an entirely new
LARM surface must be installed on the entire roof, and that the permanently bent
roof panels on the northwest corner of the roof must be replaced. (Doc. #39-1,
PAGIEID 639, 646-47). Thus, Plaintiff argues, "a full roof replacement is the only
viable method to restore the Property's roof to its pre-loss condition. " (Doc. #45,
PAGEID 1011). The bid for replacing the roof estimated the cost at $398, 483. 87,
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and Plaintiff's experts "calculate a total estimated cost of $610, 976. 48 to repair all
damage caused by the Storms" beyond the roof replacement [Id., citing Doc. #39-
1, PAGEID 642-45; Doc. #46-1, PAGEID 1030-32, 1038).
Plaintiff filed a claim with Defendant under the operative Commercial
General Liability Policy No. Q61-0059581 ("the Policy") (Doc. #36, PAGEID 367-
469), which Defendant assigned as Claim No. A00004842219. (First Am. Compl.,
Doc. 31, PAGEID 331, IT 14). Defendant's inspector estimated the total damage to
the Property at $13, 040. (Doc. #36, PAGEID 350). However, Defendant declined
coverage based on the Policy's "anti-concurrent causation ('ACC')" clause, under
which coverage is excluded if damage to the Property was caused by multiple
factors simultaneously, and one of those factors is excluded from coverage. [Id.
at PAGEID 350-52, quoting Doc. #36, PAGEID 395-99). Defendant's denial was
based on its conclusions that:
[T]he causes of roof damage and water intrusion were a combination
of deterioration and lack of timely and proper maintenance, the
damage could not have been caused by a recent or singular event, no
severe weather events sufficient to have caused the alleged damage
had occurred in the area in the previous year, and the roof could be
easily repaired rather than replaced by re-fastening the roof panels
and reapplying a weather barrier.
{Id. at PAGEID 353). Defendant notes that the Policy's exclusions include:
[D]eterioration or depreciation; faulty, inadequate or defective design,
specifications, workmanship, repair, construction, or renovating;
faulty, inadequate or defective materials used in repair, construction,
or renovation; faulty, inadequate or defective maintenance; and
neglect of an insured to use all reasonable means to save and
preserve property from further damage at and after the time of loss.
The insurance contract also expressly and specifically excludes from
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insurance coverage all loss or damage caused by wear and tear, rust,
or corrosion; inherent vice; latent or hidden defect; and cracking,
shrinking, bulging or expansion of roofs.
(Id. at PAGEID 360).
Based on Defendant's interpretation of the Policy, Defendant issued Plaintiff
a partial denial letter on or about October 23, 2023, denying all but $13, 010 of the
Claim. (Doc. #31, PAGEID 332, 1121). Thereafter, Plaintiff retained Mayfield
Building Envelope Consultants ("MBEC") to inspect the Property. In September
2024, MBEC issued a report, identifying the Storms as the cause of the Property s
damage, and opining only that full replacement of the roof could return the
Property to pre-loss condition. [Id. at PAGEID 332-33, IIfl 23-24).
B. Litigation History
On November 22, 2024, Plaintiff filed its initial Complaint (Doc. #1), and the
operative First Amended Complaint on December 9, 2025. (Doc. #31). On January
6, 2026, Defendant moved for summary judgment, arguing that Plaintiff's failure
to inspect and maintain the Property properly was at least a partial cause of the
damage to the Property; consequently, Defendant claims, the ACC applies, and as
a matter of law, its denial of coverage was proper. (Doc. #36, PAGEID 360 n. 7,
citing Kiwi Hosp. -Cincinnati Central, LLCv. Princeton Excess & Surplus Lines Ins.
Co., No. 1:22-cv-538, 2025 U. S. Dist. LEXIS 60588 (S. D. Ohio Mar. 31, 2025)
(Barrett, J. ); Eloise Holdings, LLCv. Mt. Hawley Ins. Co., No. 1:23-cv-7513-GHW,
2025 U. S. Dist. LEXIS 44127 (S. D. N. Y. Mar. 11, 2025)). Specifically, Defendant
asserts that the operative insurance policy "expressly and specifically excludes
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from insurance coverage all loss or damage caused by wear and tear, rust, or
corrosion; inherent vice; latent or hidden defect; and cracking, shrinking, bulging
or expansion of roofs. " (Id. at PAGEID 360). Defendant claims that, despite the
Building's age. Plaintiff did not order any independent inspection of it prior to or
after purchase. (Id. at PAGEID 361). Defendant further argues that, even if the
roofing coating system is new, as Plaintiff claims, underneath the coating was "an
old, dirty roof showing cracking from deterioration in the flood coat, a flood coat
that was older than the ten yearssuch a coat usually lasts, before a flood coat gets
old, dries up, cracks, and allows water to enter underneath the coat. " [Id., citing
Doc. #41-1, PAGEID773). Defendant asserts that, because (1) the deterioration
was at least a partial cause of the damage, triggering the ACC, and (2) exclusions
for wear and tear are enforceable under Ohio law. Defendant's declination was
proper, and summary judgment is appropriate. [Id. at PAGEID362-63, quoting
Murray v. Auto-Owners Ins. Co., 2015-0h1o-3295, n 42, 40 N. E. Sd 679 (6th Dist);
quoting Kiwi Hosp., 2025 U. S. Dist. LEXIS60588, *17-18, 22; citing Kiwi Hosp.,
2025 U. S. Dist. LEXIS 60588, *22-32; Eloise Holdings. 2025 U. S. Dist. LEXIS44127).
In its memorandum contra, Plaintiff argues that Defendant's causation
expert conceded that "winds from the Storms lifted the northwest corner of the
Property's roof, which allowed rainwater to intrude into the Property[, ]" and that
two of Plaintiff's experts have also reached that conclusion. (Memo. in Opp., Doc.
#45, PAGEID 1006, 1007, citing Doc. #39-1, PAGEID 639, 647-48, 652-53; Doc. #41-1,
PAGEID 769-71, 776, 780; Doc. #42-1, PAGEID 834, 851 , 852, 858). Plaintiff claims
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that another of its experts concluded that the uplift from the wind permanently
damaged metal roof panels and allowed significant water intrusion. {Id. at
PAGEID 1007, citing Doc. #39-1, PAGEID 645-46, 648; Doc. #46-1, PAGEID 1032).
Moreover, Plaintiff asserts. Defendant's expert Gerbick testified that there was no
building code violation with respect to the roof not being able to withstand a
ninety-mile per hour, three-second wind gust, and that Gerbick could not state
that the LARM was applied incorrectly. [Id. at PAGEID 1007-08, citing Doc. #42-1,
PAGEID 836-37, 844, 849). Plaintiff argues that any degradation of the LARM is a
direct result of the Storms, not from age or poor maintenance. (Id. at PAGEID
1008-09, citing Doc. #39-1, PAGEID 649; Doc. #42-1, PAGEID 837-38, 841-42; Doc.
#46-1, PAGEID 1034-35). Finally, Plaintiff claims that there is no dispute that the
roof, if covered, is a total loss and needs complete replacement. (Id. at PAGEID
1010-11, citing Doc. #39-1, PAGEID 639, 645-47; Doc. #42-1, PAGEID 847-48).
Plaintiff argues that all cases relied upon by Defendant are inapposite; in
those cases, "there was not a factual dispute that the damages at issue were
caused, in part, by excluded causes of loss. " (Doc. #45, PAGEID 1012-13
(emphasis in original) (citations omitted)). Here, Plaintiff asserts, there are
material factual disputes as to whether: (1) wind from the Storms caused
permanent damage to the panels by uplifting the northwest corner; (2) the
cracking on the LARM coating and at the metal seams of the roof was due to the
uplifting from the Storms; (3) water came through due to perforations in the
LARM from hail damage; and (4) whether "interior water damage" was"due to
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water intruding through the northwest area of the roof that was uplifted and
deformed, a hole created at the base of the electrical mast due to impact from
wind, and through the cracking in the LARM coating. " {Id. at PAGEID 1013). In
fact. Plaintiff asserts, "damage which Erie's own ex ert agrees was caused by the
Storms is sufficient to support a jury finding that [D]ybo is entitled to a full roof
replacement under the Policy, which clearly presents a material question of fact
for the jury to determine. " [Id. at PAGEID 1014 (emphasis in original)).
Specifically, Plaintiff argues that there are material disputes, which must be
resolved in Plaintiff's favor at this stage, as to whether age-related deterioration or
lack of maintenance caused the Property's damage; Plaintiff claims that, in light of
such disputes. Defendant has not raised adequate grounds to invoke the ACC. (Id.
at PAGEID 1015). Alternatively, Plaintiff claims that even if the ACC was properly
invoked, there is sufficient testimony from its experts for a reasonable trier of fact
to conclude that the damage was caused solely by the Storms, and that the ACC
does not preclude coverage. {Id. at PAGEID 1015-16).
In Reply, Defendant argues that it is undisputed that at least some of the
damage was caused from an excluded source, e. g., "long-standing deterioration,
pre-existing defects, improper installation, and inadequate maintenance,'
meaning that the ACC applies and Plaintiff's breach of contract claim fails a matter
of law. (Doc. #48, PAGEID 1117). Specifically, Defendant notes that Plaintiff's
expert, Etienne, concedes that at least some of the hail damage to the LARM and
roof came from a 2011 storm. (/aC at PAGEID 1118, quoting Doc. #39-1, PAGEID
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633, 648). Etienne also testified that, on portions of the roof, new LARM coating
was applied directly over the old LARM, despite the fact that the new LARM
coating will not bond properly in that situation. (/aC at PAGEID 1118-19, quoting
Doc. #39-1, PAGEID 646-47, 653).
That expert testimony was also consistent with that of Defendant's expert,
Wayne Gerbick, who testified that rivets had been used to attempt to repair the
roof piecemeal, and that the pre-existing defects and lack of maintenance were at
least a partial cause of the roof lifting and the intrusion of water. (Doc. #48,
PAGEID 1120, citing Doc. #42-1, PAGEID 839-40). Moreover, Defendant argues
that Gerbick's inspection revealed undisputed evidence that the roof cracked in
random places, which is not what would happen through wind uplift, and that the
deterioration of the LARM coating caused the underlying panels to get damaged.
{Id. at PAGEID 1121, citing Doc. #42-1, PAGEID 834-35, 838). Defends nt further
claims that the wind during the Storms being modest "is an unrebutted fact[, ]'
and that the roof would have survived such wind undamaged had it been properly
constructed and maintained. {Id. at PAGEID 1122). Specifically, Defendant notes
that Etienne testified that it would take wind speeds of at least sixty miles per hour
to peel back the roof panels. (Id., quoting Doc. #39-1, PAGEID 634). Defendant
reasons that, because the roof uplift was caused at least in part by poor
maintenance and pre-existing defect, the ACC applies, and declination of coverage
was proper as a matter of law (Id. at PAGEID 1124-25, quoting Doc. #42-1,
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PAGEID 846, 852; citing Kiwi Hosp., 2025 U. S. Dist. LEXIS 60588; Eloise Holdings,
2025 U. S. Dist. LEXIS 44127; Doc. #42-1, PAGEID 834-35).
The matter is now ripe for decision.
II. Legal Standard
Summary judgment shall be granted "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). Summary judgment must be entered
"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
moving party always bears the initial responsibility of informing the court of the
basis for its motion, and identifying those portions of the record which it believes
demonstrate the absence of a genuine issue of material fact. Id. at 323; see also
Boretti v. Wiscomb, 930 F. 2d 1150, 1156 (6th Cir. 1991).
Once the moving party has met its initial burden, the nonmoving party must
present evidence that creates a genuine issue of material fact making it necessary
to resolve the difference at trial. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 250
(1986). Once the burden has so shifted, the party opposing summary judgment
cannot rest on its pleadings or merely reassert its previous allegations. It is not
sufficient to "simply show that there is some metaphysical doubt as to the
material facts. " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U. S. 574,
586 (1986). Rule 56 "requires the nonmoving party to go beyond the pleadings,'
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and present some type of evidentiary material in support of its position. Celotex,
477 U. S. at 324. "The plaintiff must present more than a scintilla of evidence in
support of his position; the evidence must be such that a jury could reasonably
find for the plaintiff. " Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F. 3d 337,
341 (6th Cir. 1994).
"Summary judgment will not lie if the dispute about a material fact is
'genuine/ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. " Anderson, 477 U. S. at 248. In determining
whether a genuine dispute of material fact exists, a court must assume as true the
evidence of the nonmoving party and draw all reasonable inferences in favor of
that party. Id. at 255. If the parties present conflicting evidence, a court may not
decide which evidence to believe. Credibility determinations must be left to the
fact-finder. 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE CIVIL § 2726 (3d ed. 1998).
In determining whether a genuine dispute of material fact exists, a court
need only consider the materials cited by the parties. FED. R. CIV. P. 56(c)(3). "A
district court is not... obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party's claim. " InterRoyal
Corp. v. Sponseller, 889 F. 2d 108, 111 (6th Cir. 1989). If it so chooses, however,
the court may also consider other properly presented materials in the record.
FED. R. CIV. P. 56(c)(3).
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III. Analysis
At the outset, the Court notes that the parties "present the classic battle of
the experts, and it is up to a jury to evaluate what weight and credibility each
expert opinion deserves. " Phillips v. Cohen, 400 F. 3d 388, 399 (6th Cir. 2005)
(cleaned up), quoting Cadmus v. Aetna Cas. & Surety Co., No. 95-5721, 100 F. 3d
956 (TABLE), 1996 WL 652769 (6th Cir. Nov. 7, 1996). The court in Phillips
reversed the district court's grant of summary judgment because, "[p]ut simply,
the magistrate judge engaged in an extensive analysis of the parties' expert
reports and found Claudy's conclusions more credible. This approach of weighing
the credibility of the competing expert reports amounts to improper fact-finding.
Id., citing Rodgers v. Monumental Life Ins. Co., 289 F. 3d 442, 449 (6th Cir. 2002).
With PhillipS QS binding precedent, resolution of the Motion is
straightforward. There is no dispute that deterioration, "[w]ear and tear, rust, or
corrosion[, ]" or negligent maintenance and upkeep with respect to the Property is
considered an exclusion, and that the ACC triggers a declination of coverage if
one of the excluded causes is even slightly responsible for the Property loss.
(Doc. #36, PAGEID 395-99). Nor is there any dispute that the northwest corner of
the roof was lifted up at the same time of the Storms, and that concurrent with the
Storms and uplift, the underlying roof panels "flapped around, " the LARM
coating cracked, and water entered the Property. (Doc. #42-1, PAGEID834, 851-52,
858). It is similarly undisputed that several of the metal panels have been
permanently bent from the wind. {Id. at PAGEID834-35, 846-47).
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However, there is significant dispute as to whether any of the excluded
conditions caused any part of the damage, or whether the Storms set forth an
unbroken causal chain that resulted in approximately $1 million in damage.
Specifically, there are material disputes as to whether:
1. The LARM coating was properly applied in the first place (Doc.
#42-1, PAGEID 836-37);
2. The LARM coating, properly applied or not, had naturally
deteriorated prior to the Storms (Doc. #39-1, PAGEID 649; Doc.
#41-1, PAGEID 777; Doc. #42-1, PAGEID 837; Doc. #46-1, PAGEID
1032-33);
3. Inadequate maintenance on the roof (or a complete lack thereof)
had contributed to the damage (Doc. #39-1, PAGEID 649; Doc. #46-
1, PAGEID 1034-35); and
4. The wind from the Storms was the sole cause of the roof uplift,
which in turn caused water intrusion into the Property, and the
sole cause of "a hole created by the electrical mast being
impacted[. ]" (Doc. #45, PAGEID 1009, citing Doc. #46-1, PAGEID
1028-29, 1032).
Defendant notes that Etienne, Plaintiff's roofer and expert, testified that
there was both old (201 1) and new (Storms) hail damage on the roof. (Doc. #48,
PAGEID 1118, quoting Doc. #39-1, PAGEID 633, 648). However, Defendant does
not present undisputed evidence that the 2011 hail damage, even if not fully
repaired, was a definitive cause, in whole or in part, of the Property damage.
Similarly, while Defendant's expert, Gerbick, testified that the LARM cracking was
not consistent with wind damage, he merely concluded from that observation that
the cracking "was not necessarily caused by wind. " (Doc. #42-1, PAGEID 842
(emphasis added)). While Gerbick also testified that the trim on the northwest
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corner of the roof had failed due to poor maintenance and upkeep, and that that
failure caused the roof to uplift in the face of modest winds {id. at PAGEID 852),
Plaintiff's expert Wright testified that there had been previous maintenance done
on the roof, "[a]nd again, it didn't leak before this storm. And then it, all of a
sudden, did. " (Doc. #46-1, PAGEID 1034). Thus, contrary to Defendant's
argument, there isa "genuine issue of material fact disputing that there were
defects and longstanding maintenance issues present in the roof before the dates
of the two storms alleged to have caused damage. " (Doc. #48, PAGEID 1124).
As Plaintiff rightly points out (Doc. #45, PAGEID 1012-13), the cases relied
upon by Defendant are inapposite. In Kiwi Hosp., experts for both the insurer and
insured "indexed multiple examples of both" the property's "'wear and tear' [and]
a lack of maintenance. " 2025 U. S. Dist. LEXIS 60588, *22. In Eloise Holdings, the
plaintiff did not respond to the defendant's motion for summary judgment,
meaning that defendant's evidence "that the damage was made worse by, or
sustained in connection with, faulty workmanship and inadequate repairs" was
undisputed. 2025 U. S. Dist. LEXIS44127, *17. Finally, in Murray, the insured did
not offer any evidence from an expert or a third-party to contradict the affidavit of
the insurer's contractor who remediated the damage. 2015-Ohio-3295, 1I1I2-4, 14-
15. In short, none of the cases presented the battle of the experts that this Court
faces. To resolve the threshold issue of causation would require the Court to
weigh the evidence offered by the parties and the credibility of their experts,
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which the undersigned simply cannot do at the summary judgement stage.
Accordingly, Defendant's Motion for Summary Judgment must be overruled.1
IV. Conclusion
For the foregoing reasons. Defendant's Motion for Summary Judgment
(Doc. #36) is OVERRULED. The captioned case shall proceed to trial.
IT IS SO ORDERED.
April 16, 2026
i^A4^< f^fV
WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT
1 Plaintiff has filed a Motion to Exclude the Testimony of Casey Davenport, Ph. D., Defendant's
weather expert. (Doc. #44). The Motion to Exclude arises under Federal Rule of Evidence702 and
Daubert v. Merrell Dow Pharm. {id. at PAGEID951, citing 509 U. S. 579 (1993)), and Plaintiff prays
"that the Court exclude from evidence any expert opinion testimony by Casey Davenport, Ph. D.,
regarding the wind speeds occurring at the Property at issue in this case during the Storms and
preclude Defendant's witnesses from relying upon any such opinions at trial. " {Id. at PAGEID 953).
As there would still be a material dispute of fact as to causation even if Davenport's report and
deposition testimony were considered, the Court declines to rule on the Motion to Exclude at this
time. and will address it at the Final Pretrial Conference. (Prelim. Pretrial Conf. Order, Doc. #17,
PAGEID268).
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