Economic Damages Expert Witness Advises on Insurer’s Breach of Duty

An economic damages expert witness advises on a case involving the purchase of liability insurance policies from the defendant insurer that provide, among other things, general liability insurance coverage for defense costs incurred in defending against claims by third parties, including claims for property damage. The plaintiff was identified as a potentially responsible party with respect to a Superfund site. The defendant issued a reservation-of-rights letter and only paid a percentage of the costs to defend the environmental action.

The plaintiff filed suit alleging the defendant breached its duty to defend.

Question(s) For Expert Witness

1. Were there any inaccuracies in the invoice and payment data summarized in plaintiff’s expert opinion letter?

2. Were any other areas of the letter unsubstantiated?

Expert Witness Response

After reviewing the plaintiff expert’s opinion and invoice and payment documents related to plaintiff’s defense costs for the covered period, I found discrepancies that the expert did not fully document.

In summary, certain information upon which plaintiff’s expert relied in reaching his conclusions were inaccurate and/or insufficient in the following areas:

• There were a number of instances in which the invoice or payment information summarized in an appendix of the expert’s report was inconsistent with the actual hard copy documents. If the discrepancies I noted were incorporated into the expert’s analysis, his loss calculation would decrease by $69,001.

• There was a total of $251,420 in vendor invoices and $86,998 in insurance payments missing from the expert’s appendix spreadsheet and not found in the expert’s documentation. This suggests that the expert’s analysis may not be comprehensive.

• In computing the total reimbursement payments, the expert included an additional amount of $199,605, which appears to benefit the insurer. However, he provides no documents or details as to where he got this number or explanation of how it was computed.

• In his opinion letter, the expert assumes that the plaintiff paid all the defense costs for which the plaintiff seeks reimbursement from the insurer. However, he only “confirmed” $6.21 million out of a total $16.84 million allegedly paid out by the plaintiff to various vendors.

Due to the aforementioned discrepancies, I cannot attest to the accuracy of the plaintiff expert’s assessment of economic damages in the specific areas noted in this report. Of most concern is the expert’s assumption that all defense costs ($16.8 million) were paid directly by plaintiff. In my opinion, the due diligence performed in that area was insufficient to conclude that the plaintiff paid 100% of the defense costs.