INSURANCE-RELATED COURT CASES
Digested from case reports published online
COURT DECISIONS
Loss denial upheld after battle of the experts
Bliv Incorporated (Bliv) filed a claim to recover damages to its commercial building. The company filed a claim that water intrusion damaged their building after the area experienced a storm in 2021. Bliv’s building at the time of alleged loss was insured by The Charter Oak Fire Insurance Company (Charter Oak).
Charter Oak hired an engineer to inspect Bliv’s building. The inspector noted minor hail damage, but did not find evidence of recent damage to the roof that would have facilitated water damage. The insurer denied the claim since they also judged that the cost of the hail damage was less than the policy deductible. Bliv then sued for damages and, later, filed an appeal after the lower court found in favor of Charter Oak.
During the appeal, both parties re-litigated their positions. Bliv’s arguments? The company pointed out that their claim was for both interior and exterior water damage, initiated by hail during a storm. Both parties eventually enlisted experts to render their opinions. However, they came to different conclusions.
Charter Oak’s expert was the first to inspect the site. The engineer, as mentioned above, noticed only minor hail damage. Specifically, he documented dents from hail in several building vents and parts of the building’s air conditioning units. The expert focused on the roof. It was a Thermoplastic Polyolefin (TPO) membrane roof.
The inspection included cutting out and examining a section of the membrane. After testing it with a tool to measure moisture, he found no evidence that the material had been breached. His opinion was that the interior ceiling tile damage and corroded metal roof decking was not connected to the storm.
After Bliv received Charter Oak’s decision and rationale to deny their claim, it responded by hiring Access Restoration Services (ARS) to assess the situation and prepare an estimate for making interior and exterior repairs. Its work included the use of satellite imagery of the building.
Afterwards, Charter Oak’s expert was sent out again. He performed additional moisture tests and found defects in the building’s parapet walls and roof seams. This information was included in a supplemental report and shared with both parties. The information did not alter either Bliv’s nor Charter Oak’s positions.
As was the case with the lower court, the appeals court’s review included consideration of Bliv’s next move. The company hired its own engineer as an expert witness to bolster its argument for coverage. Their expert spent two hours actually inspecting the building. He also studied the Charter Oak expert’s initial report and the satellite pics taken by ARS. He did not, initially, make use of or reference to Charter Oak’s supplemental report.
After it agreed to the insurer’s motion to dismiss the opinion of Bliv’s expert that the damage to its building was due to the storm’s hail activity, the lower court ruled in favor of Charter Oak. The lower court held no issue with the expert witness’s qualifications. However, it made its ruling based on a finding that the opinion lacked support.
The court noted that the expert witness did not perform any first-hand testing at the site; his analysis depended solely on reviewing the reports completed by ARS and Charter Oak’s hired engineer, and he dismissed the findings of Charter Oak’s supplemental report without explanation. Further, that expert agreed that the roof’s membrane showed no evidence of damage, yet concluded that the reported activity of hail was responsible for the building’s water intrusion damage.
The lower court agreed with Charter Oak’s position that the expert did not offer his own evidence, nor did he use reliable methodology to support his conclusion. Therefore, his testimony was excluded. Without expert support, the lower court ruled in favor of Charter Oak’s argument that the loss was due to wear and tear rather than the storm. The higher court came to the same finding, affirming the lower court decision.
Bliv, Inc., d/b/a Lectro Engineering and Real Bliv, LLC v. The Charter Oak Fire Insurance Company—United States Court of Appeals for the 8th Circuit—No. 24-3123—November 12, 2025.
