govinfo:USCOURTS-kywd-1_24-cv-00048-1

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
BOWLING GREEN DIVISION 
CIVIL ACTION NO. 1:24-CV-0048-GNS-HBB 
 
OM SHIV HOSPITALITY L.L.C. 
d/b/a HORSE CAVE MOTEL PLAINTIFF 
 
v. 
 
NORTHFIELD INSURANCE 
COMPANY DEFENDANT 
 
 
MEMORANDUM OPINION AND ORDER 
 This matter is before the Court on Defendant’s Motion to Exclude Plaintiff’s Experts 
(DN 32) and Defendant’s Motion for Summary Judgment (DN 33) . The motion s are ripe for 
adjudication. 
I. STATEMENT OF FACTS AND CLAIMS 
 This case concerns alleged storm damage to the property of OM Shiv Hospitality L.L.C. 
d/b/a Horse Cave Motel (“HCM”). Around March 3, 2023, a storm allegedly damaged HCM’s 
roof. (Notice Removal Ex. 1, at 4 , DN 1-1 [hereinafter State Ct. Compl.]). HCM filed a claim 
with its insurer, Northfield Insurance Company (“Northfield”), which Northfield denied. (State 
Ct. Compl. ¶ 6). HCM brought suit in Hart Circuit Court (Kentucky) against Northfield for breach 
of contract, bad faith, and a violation of the Kentucky Unfair Claims Settlement Practice Act . 
(State Ct. Compl. ¶¶ 14-24). Northfield then removed the case to this Court. (Notice Removal 1-
3, DN 1). Northfield now moves to exclude two of HCM’s experts and for summary judgment on 
HCM’s claims against it. (Def.’s Mot. Exclude 1, DN 32; Def.’s Mot. Summ. J. 1, DN 33). PageID #:
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II. JURISDICTION 
 This Court has jurisdiction over “any civil action brought in a State court of which the 
district courts of the United States have original jurisdiction” that is “removed by the defendant or 
the defendants, to the district court of the United States for the district and division embracing the 
place where such action is pending.” 28 U.S.C. § 1441(a). The Court has jurisdiction over this 
matter based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1). The parties are citizens of 
different states, and the amount in controversy exceeds $75,000. (Notice Removal 2-3). 
III. DISCUSSION 
A. Motion to Exclude (DN 32) 
1. Failure to File a Response 
 At the outset, the Court notes that HCM has failed to file a response to Northfield’s motion. 
Pursuant to LR 7.1(c), “[f] ailure to timely respond to a motion may be grounds for granting the 
motion.” Nevertheless, the Court will consider the merits of Northfield’s motion. 
2. Failure to Comply with Fed. R. Civ. P. 26 
 Fed. R. Civ. P. 26(a)(2) requires the disclosure of the identity of any expert witness it may 
use at trial, accompanied by the expert witness’s signed report, if the witness was “ retained or 
specially employed to provide expert testimony in the case . . . .” Fed. R. Civ. P. 26(a)(2)(A), (B). 
The report must contain: 
 
(i) a complete statement of all opinions the witness will express and the 
basis and reasons for them; 
(ii) the facts or data considered by the witness in forming them; 
(iii) any exhibits that will be used to summarize or support them; 
(iv) the witness ’s qualifications, including a list of all publications 
authored in the previous 10 years; 
(v) a list of all other cases in which, during the previous 4 years, the 
witness testified as an expert at trial or by deposition; and 
(vi) a statement of the compensation to be paid for the study and 
testimony in the case. PageID #:
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Fed. R. Civ. P. 26(a)(2)(B). These disclosures must be filed in compliance with a court’s 
scheduling order. Fed. R. Civ. P. 26(a)(2)(D) (“A party must make these disclosures at the times 
and in the sequence that the court orders. ”). In this instance, the Court’s scheduling order 
mandated that HCM complete its expert disclosures by February 7, 2025. (Scheduling Order 5, 
DN 11).1 
 Northfield does not dispute that HCM filed a document naming its purported expert 
witnesses on February 27, 2025, but argues that this document was not compliant with Fed. R. 
Civ. P. 26 and therefore was not an effective expert disclosure. (Def.’s Mot. Exclude 3-4; see also 
Def.’s Mot. Exclude Ex. 1, at 1-2, DN 32 -1 [hereinafter Pl.’s Expert Disclosure] ). HCM’s 
purported disclosure identifies two experts: Brandi Carroll (“Carroll”) and Richard Stanley 
(“Stanley”). (Pl.’s Expert Disclosure 1). HCM stat es that both experts are “expected to testify 
regarding the loss, harm, and damage to the dwelling and contents caused by the fire, and the 
estimates of repair to the dwelling and contents.” (Pl.’s Expert Disclosure 1 -2). HCM indicates 
that each expert’s estimates of repair are attached to the disclosure and invites Northfield to “see 
deposition.” (Pl.’s Expert Disclosure 1-2). 
In this instance, HCM failed to disclose all the information required by Fed. R. Civ. P. 
26(a)(2)(B), including “a list of all other cases in which, during the previous 4 years, the witness 
testified as an expert at trial or by deposition . . . .” Fed. R. Civ. P. 26(a)(2)(B)(v). Neither Carroll 
nor Stanley’s curriculum vitae contains a list of previous cases in which they provided expert 
testimony. (See Def.’s Mot. Exclude Ex. 3, at 1-2, DN 32-3; Def.’s Mot. Exclude Ex. 4, at 1, DN 
 
1 While some deadlines in the scheduling order were subsequently altered, this did not affect 
HCM’s expert disclosure deadline. (See Agreed Order 1, DN 20 (“All other terms of the Court’s 
May 8, 2024 Order (DN 11), to the extent they are not inconsistent with this Order, are incorporated 
herein.”)). PageID #:
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32-4). Similarly, HCM’s direction to “[a]lso, see deposition” is unhelpful because no part of the 
depositions that are in the record contain the required information. HCM’s purported disclosure 
also does not contain a complete statement of the opinions of each expert witness, the basis for 
those opinions, the facts the experts relied upon in forming those opinions, or virtually any of the 
other content required by Fed. R. Civ. P. 26. 
HCM did provide Northfield with Carroll and Stanley’s repair estimates. (Pl.’s Expert 
Disclosure 1 -2; Def.’s Mot. Exclude Ex. 2, DN 32 -2). This also falls short of the disclosure 
requirements. As this Court has recognized, “ an expert’s report must explain factually ‘why and 
how’ the witness reached an opinion.” Christy v. Liberty Mut. Ins. Co., No: 1:23-CV-00176-GNS-
HBB, 2024 WL 4171353 , at *3 (W.D. Ky. Sep. 12, 2024) (quoting Burke v. U -Haul Int’l, No. 
3:03-CV-32-H, 2004 WL 5499520, at *11 (W.D. Ky. Dec. 7, 2004)). Dealing with similar facts, 
the district court for the Middle District of Florida observed: 
The repair estimates do not mention any of Walls’ observations. They also fail to 
explain how Walls determined the scope of work to be performed or how he used 
Xactimate to generate the estimate. Nor does he provide any details about the 
claimed inspection. In short, the repair estimates do not include all of Walls’ 
opinions or explain how he arrived at the figures reported. Thus, the estimates do 
not satisfy Rule 26. 
 
Graves v. Great Lakes Ins. SE., No. 2:23-CV-373-SPC-KCD, 2024 WL 3219191, at *2 (M.D. Fla. 
June 28, 2024). 
 “The remedy for the failure to file the required expert report . . . is exclusion of the opinion 
testimony, unless [HCM] can establish that the failure was either substantially justified or 
harmless.” Dobbins v. Greyhound Lines, Inc. , 336 F.R.D. 144, 147 (E.D. Mich. 2020) (citing 
Avendt v. Covidien Inc., 314 F.R.D. 547, 559 (E.D. Mich. 2016)); see Fed. R. Civ. P. 37(c)(1) (“If 
a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party 
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at a trial, unless the failure was substantially justified or is harmless. ”). To assess whether an 
omitted or late disclosure is substantially justified or harmless, the Sixth Circuit considers five 
factors: 
(1) the surprise to the party against whom the evidence would be offered; (2) the 
ability of that party to cure the surprise; (3) the extent to which allowing the 
evidence would disrupt the trial; (4) the importance of the evidence; and (5) the 
nondisclosing party’s explanation for its failure to disclose the evidence. 
 
Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute Collection 
Servs., Inc., 763 F.3d 385, 396 -97 (4th Cir. 2014)). “The party requesting exclusion under Rule 
37(c)(1) need not show prejudice, rather the non -moving party must show that the [failure] was 
‘harmless’ or ‘substantially justified.’” Saint Gobain Autover USA, Inc. v. Xinyi Glass N. Am., 
Inc., 666 F. Supp. 2d 820, 826 (N.D. Ohio 2009) (quoting Fed. R. Civ. P. 37(c)(1)) (citing SPX 
Corp. v. Bartec USA, LLC, 574 F. Supp. 2d 748, 756 (E.D. Mich. 2008)). Absent this showing by 
the non-movant, exclusion of the non -disclosed experts is “automatic and mandatory.” See id. 
(quoting Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 
2004)) (citing SPX Corp., 574 F. Supp. 2d at 757). 
 As discussed, HCM has not responded to Northfield’s motion, so it cannot make the 
required showing that its failure to properly disclose was harmless or substantially justified. While 
this alone compels exclusion, the factors also weigh for exclusion. First, absent full disclosure, 
Northfield has little knowledge of the experts’ opinions and therefore has no means of adequately 
responding to the experts’ testimony at trial. Second, neither HCM nor the court could reasonably 
cure the surprise. Northfield has already made its expert disclosures without the benefit of proper 
disclosure from HCM. Curing this defect would involve reopening the expert disclosure process 
which would lead to undue delay and expense to both parties. Third, all owing late disclosure 
would disrupt trial as Northfield’s experts would have to respond to opinions and testimony which PageID #:
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they would not have been able to review in the experts’ reports. Fourth, the expert testimony about 
damages is undoubtedly important to HCM’s case, but this factor alone does not excuse HCM’s 
nondisclosure. Fifth, HCM has provided no explanation for its nondisclosure. Accordingly, these 
factors weigh against excusing HCM’s nondisclosure.2 
3. Carroll’s Compensation 
 Independent of the nondisclosure issue, Northfield also avers that Carroll must be excluded 
because she is compensated on a contingency basis. As the Sixth Circuit has stated: 
In answering the question of whether a lawyer may knowingly present testimony 
of an expert witness who is being compensated on a contingent fee basis, the 
Kentucky Ethics opinion answers: “No in cases where the support services include 
the provision of expert witness testimony or in arrangements that involve the 
splitting of legal fees with a nonlawyer.” 
 
Martello v. Santana , 713 F.3d 309, 314 (6th Cir. 2013) (citing KBA Ethics Op. E -394 (1996)). 
The contract between Carroll and HCM makes clear that she is to be paid ten percent of “the total 
amount paid by the insurance company for the loss.” 3 (Def.’s Mot. Exclude Ex. 6, at 1). Carroll 
also testified in her deposition that she was paid based on HCM’s recovery from its insurer. (Caroll 
 
2 Moreover, Northfield points out that this is not the first time HCM’s counsel has ineffectively 
disclosed Carroll and Stanley as experts. In Christy v. Liberty Mut ual Insurance Co., this Court 
excluded Carroll and Stanley’s testimony due to insufficient expert disclosures by the plaintiff, 
who was represented by the same counsel as HCM. Christy, 2024 WL 4171353, at *3 -4. As in 
this matter, the plaintiff in Christy stated that Carroll and Stanley would “testify regarding the loss, 
harm, and damage to the dwelling and contents caused by the fire, and the estimates of repair to 
the dwelling and contents [,]” when Christy actually involved storm damage. Id. at *3. The 
plaintiff in Christy also failed to comply with the other requirements in Fed. R. Civ. P. 26(a)(2)(B). 
Id. The Court notes that HCM has made largely the same errors in this matter. 
3 Carroll’s fee agreement is slightly different than the one at issue in the KBA ethics opinion cited 
by the court in Martello. The ethics opinion contemplates the splitting or payment of contingency 
fees directly between an attorney and an expert witness. KBA Ethics Op. E-394 (1996). Carroll’s 
fee agreement is not between her and HCM’s attorney, but between her and HCM directly. (Def.’s 
Mot. Exclude Ex. 6, at 1, DN 32 -6). This agreement, however, implicates the same ethical 
concerns as those examined in the ethics opinion because it gives Carroll, an expert witness, a 
financial stake in the outcome of this case. PageID #:
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Dep. 80:20 -82:11). Accordingly, Carroll’s contingency -based compensation also compels the 
exclusion of her testimony. 
 For these reasons, Northfield’s motion to exclude Carroll and Stanley will be granted. 
B. Motion for Summary Judgment (DN 33) 
 Northfield has also moved for summary judgment on HCM’s claims. (Def.’s Mot. Summ. 
J. 1). Summary judgment is appropriate when “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). “[A] party moving for summary judgment may satisfy its burden [of] show[ing] that there 
are no genuine issues of material fact simply ‘by pointing out to the court that the [non -moving 
party], having had sufficient opportu nity for discovery, has no evidence to support an essential 
element of his or her case.’” Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005) (quoting 
Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1479 (6th Cir. 1989)). Similarly, the movant may 
meet its burden by offering evidence negating an essential element of the non -moving party’s 
claim. See Dixon v. United States, 178 F.3d 1294, 1999 WL 196498, at *3 (6th Cir. 1999). 
 After the movant either shows “that there is an absence of evidence to support the 
nonmoving party’s case[,]” or affirmatively negates an essential element of the non-moving party’s 
claims, the non-moving party must identify admissible evidence that creates a dispute of fact for 
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Anderson v. Liberty Lobby, 
Inc., 477 U.S. 242, 247 -48 (1986). While the Court must view the evidence in a light most 
favorable to the non -moving party, the n on-moving party “must do more than 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) (citation omitted). “The mere existence of a scintilla of PageID #:
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evidence in support of the [moving party’s] position [is] [] insufficient; there must be evidence on 
which the jury could reasonably find for the [moving party].” Anderson, 477 U.S. at 252. 
1. Breach of Contract Claim 
 Northfield argues that it should be granted summary judgment on HCM’s breach of 
contract claim because, without its experts, HCM cannot prove the essential elements of breach 
and damage. (Def.’s Mem. Supp. Mot. Summ. J. 5 -8, DN 33 -1). HCM replies that e xpert 
testimony is not required to prove causation or damages and Patel can testify about the damage 
that occurred. (Pl.’s Resp. Def.’s Mot. Summ. J. 4-6, DN 36). 
 A court sitting in diversity jurisdiction applies the contract law of the state in which it sits. 
Gravity Diagnostics, LLC v. Lab’y Billing Sols., Inc., No. 2:21-CV-02 (WOB), 2022 WL 3448628, 
at *2 (E.D. Ky. Aug. 17, 2022) (citing Richmond Health Facilities v. Nichols, 811 F.3d 192, 196 
(6th Cir. 2016)). “Under Kentucky law, the elements of a breach-of-contract claim are: (1) the 
existence of a valid contract; (2) breach of the contract; and (3) damages or loss caused by the 
breach.” Myers v. AgriLogic Ins. Servs., LLC, 694 F. App’x 373, 376 (6th Cir. 2017) (citing Metro 
Louisville/Jefferson Cnty. Gov’t v. Abma, 326 S.W.3d 1, 8 (Ky. App. 2009)). As a sister court has 
explained: 
Under Kentucky law, “the burden is on the beneficiary [of an insurance policy] to 
establish . . . by some evidence, his right to recover.” N. Am. Accident Ins. Co. v. 
White, 80 S.W.2d 577, 578 (Ky. 1935); see also Ryan P. Estes, D.M.D., P.S., P.S.C. 
v. Cincinnati Ins. Co., 542 F. Supp. 3d 585, 590 (E.D. Ky. 2021) (“Under Kentucky 
law, the burden is on the insured to establish coverage.”). In doing so, the insured 
must demonstrate that the injury sustained was caused by a covered event. Hunt v. 
Life & Cas. Ins. Co. of Tenn. , 204 S.W.2d 588, 589 (Ky. 1947) (Where plaintiff 
sued for breach of insurance contract, the Kentucky Supreme Court ’s predecessor 
affirmed a directed verdict in defendant insurance company ’s favor because 
plaintiff did not establish, or even contend, that there was a “ causal relationship 
between the accident and the death of the insured [despite the fact that it] was 
incumbent upon the plaintiff to show such a causal relation.”) (citations omitted); 
White, 80 S.W.2d at 578 (“where the policy covers an injury or death sustained in 
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set forth therein”); Travelers Indem. Co. of Am. v. Tew , No. 5:20 -cv-292-JMH, 
2021 WL 5380944, at *3 (E.D. Ky. Nov. 17, 2021) (“The party seeking to establish 
coverage bears the burden of establishing that the incident at issue was within the 
scope of the policy.”) (alterations omitted) (quoting Secura Ins. Co. v. Gray 
Constr., Inc., 717 F. Supp. 2d 710, 714-15 (W.D. Ky. 2010)). 
 
Banks v. Farmers Prop. & Cas. Ins. Co., No. 23-81-DLB-CJS, 2025 WL 1348916, at *3 (E.D. Ky. 
May 8, 2025). 
 Northfield’s argument centers on HCM’s lack of expert testimony establishing causation 
and damages. (Def.’s Mem. Supp. Mot. Summ. J. 7 (“Absent any admissible opinions on causation 
and the reasonableness and necessity of repairs and their associated costs, Plaintiff can only 
speculate that Northfield breached the terms of the Policy .”)). HCM responds that expert 
testimony is not necessary to prove causation or damages —Ashok Patel (“Patel), HCM’s owner, 
can testify about the damage to the roof caused by t he storm. (Pl.’s Resp. Def.’s Mot. Summ. J. 
5-6). HCM, however, fails to point to any testimony offered by Patel that creates a genuine issue 
of material fact as to causation or damages. HCM asserts that Patel “ testified that the roof began 
leaking immediately after the storm and that no such leaks existed before. ” (Pl.’s Resp. Def.’s 
Mot. Summ. J. 3). In the three pages of deposition testimony cited by HCM in support of this 
proposition, however, no such testimony exists. (See Patel Dep. 37:1 -39:25, Mar. 12, 2025, 
DN 36-1). 
 Even if such testimony exists elsewhere in Patel’s deposition, HCM has not cited to it nor 
provided the Court with a complete transcript of the deposition. A trial court does not have a duty 
at the summary judgment stage to “search the entire record to establish that it is bereft of a genuine 
issue of material fact.” Street, 886 F.2d at 1479-80 (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 
1029, 1034 (D.C. Cir. 1988)). Accordingly, HCM has not carried its burden under Kentucky law 
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by a covered event under HCM’s insurance policy. Northfield’s motion will be granted for this 
reason. 
2. Bad Faith and Kentucky Unfair Claims Settlement Act Claims
Northfield argues that it should be granted summary judgment on HCM’s bad faith and 
Unfair Claims Settlement Act claims because HCM has failed to establish the existence of 
insurance coverage for the alleged damage. (Def.’s Mem. Supp. Mot. Summ. J. 8). Under 
Kentucky law, a contractual coverage obligation must exist for a bad faith claim to proceed. See 
Travelers Indem. Co. v. Armstrong, 565 S.W.3d 550, 568 (Ky. 2018). Whether coverage exists is 
a “prerequisite to a bad faith claim against an insurer.” White Pine Ins. Co. v. McIntosh, No. 5:21-
238-KKC, 2022 WL 2512771, at *8 (E.D. Ky. July 6, 2022) (citing Travelers Indem. Co., 565 
S.W.3d at 568). Therefore, absent a contractual obligation for an insurer to provide coverage, a 
bad faith claim cannot survive. In this instance, HCM has no surviving contract claim, so its 
remaining claims cannot survive. Northfield’s motion will be granted for this reason.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1. Defendant’s Motion to Exclude Plaintiff’s Experts (DN 32) is GRANTED.
2. Defendant’s Motion for Summary Judgment (DN 33) is GRANTED, and 
Plaintiff’s claims are DISMISSED WITH PREJUDICE.
3. The Clerk shall strike this matter from the active docket.
cc: counsel of record
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