Blankenship v. State Farm Fire and Casualty Company

[[COURTLISTENER_SUBOPINION {"id":"10647763","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                            
             EASTERN DISTRICT OF KENTUCKY                            
                   SOUTHERN DIVISION                                 
                      AT PIKEVILLE                                   

CIVIL ACTION NO. 21-7-DLB-EBA                                             

BILLY & ROXANNE BLANKENSHIP                            PLAINTIFFS         


v.                  MEMORANDUM OPINION AND ORDER                          


STATE FARM FIRE & CASUALTY CO.                              DEFENDANT     

                     * * * * * * * * * * *                           
I.   INTRODUCTION                                                         
This matter is before the Court upon Defendant State Farm Fire and Casualty 
Company’s (“State Farm”) pending Motion for Partial Summary Judgment, Motion to 
Exclude Plaintiffs’ Proposed Expert Tony Little, and Motion to Exclude Testimony by 
Vance Blair Regarding Causation.  (Docs. # 32, 33, and 34).  The motions have been fully 
briefed and are ripe for the Court’s review.  (Docs. # 37, 38, 39, 41, 42, and 43).  For the 
reasons stated herein, Defendant’s motions are granted.                   
II.  FACTUAL AND PROCEDURAL BACKGROUND                                    
This dispute involves the contractual relationship between an insurance company 
and its insured.  The insured, the Blankenships, filed a claim under their homeowners 
insurance policy for property damage to their home allegedly caused by a storm in 
January 2020.  (Doc. # 1-1 at 1-2).  Plaintiffs explain that their claim was partially denied 
even though they complied with all of State Farm’s requests for information.  (Id. at 2).  
The Blankenships then filed suit in state court which State Farm later removed to this 
Court under its diversity jurisdiction.  (Docs. # 1 and 1-1).  The Complaint requests the 
following relief: State Farm to adjust the losses that the Blankenships incurred because 
of the storm; an award of pre-judgment and post-judgment interest; bifurcation of their 
bad faith and punitive damages claims (which later occurred); and a jury trial.  (Doc. # 1-
1 at 2-3).  State Farm now seeks partial summary judgment on the Blankenships’ claims 

related to the damage to the brick wall veneer on the southwest corner of the home as 
well as the adjacent asphalt driveway.  (Doc. # 32-1 at 1-2).  However, the Court will first 
address State Farm’s pending Motions to Exclude (Docs. # 33 and 34) because their 
disposition will color the Court’s summary judgment analysis.             
III.  ANALYSIS                                                            
A.   Motion to Exclude Plaintiff’s Expert Witness Vance Blair        
State Farm argues that “any testimony Plaintiffs would attempt to elicit from Mr. 
Blair as to causation for the subject damage is inadmissible under [Federal Rule of 
Evidence] 702.”  (Doc. # 34 at 1-2).  State Farm relies on Blair’s deposition testimony and 

expert report to support this assertion.  (Id. at 2-6).                   
Federal  Rule  of  Evidence  702,  as  modified  by  Daubert  v.  Merrell  Dow 
Pharmaceuticals. Inc.,
509 U.S. 579
(1993), lays out that expert testimony is admissible 
so long as (1) the expert’s knowledge will help the trier of fact to understand the evidence 
or to determine a fact in issue, (2) the testimony is based upon sufficient facts or data, (3) 
is the product of reliable principles and methods, and (4) the witness has applied the 
principles and methods reliably to the facts of the case.  Fed. R. Evid. 702.  The Sixth 
Circuit clarified that in assessing admissibility of expert opinions, the court should assess 
reliability, and not credibility or accuracy, as the inquiry is “not to determine whether [the 
opinion] is correct, but rather to determine whether it rests upon a reliable foundation, as 
opposed to, say, unsupported speculation.”  In re Scrap Metal Antitrust Litig.,
527 F.3d 
517, 529-30
(6th Cir. 2008).  Generally, Rule 702 “should be broadly interpreted on the 
basis of whether the use of expert testimony will assist the trier of fact.”  Morales v. Am. 
Honda Motor Co., Inc.,
151 F.3d 505, 516
(6th Cir. 1998) (quotations omitted).  

“In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained 
that Rule 702 confers a ‘gatekeeping role’ on trial judges to ‘ensur[e] that an expert’s 
testimony both rests on a reliable foundation and is relevant to the task at hand.’”  United 
States v. Semrau,
693 F.3d 510, 520
(6th Cir. 2012) (citing Daubert,
509 U.S. 579, 597
(1993)).  “The inquiry is a ‘flexible one’ focused on ‘principles and methodology.’”
Id.
(citing Daubert,
509 U.S. at 594-95
).  “There is no ‘definitive checklist or test’ for balancing 
the  liberal  admissibility  standards  for  relevant  evidence  and  the  need  to  exclude 
misleading ‘junk science.’”
Id.
(citing Best v. Lowe’s Home Ctrs., Inc.,
563 F.3d 171, 177
(6th Cir. 2009)).  The proponent of the evidence has the burden of establishing that the 

pertinent admissibility requirements are met by a preponderance of the evidence.  See 
Bourjaily v. United States,
483 U.S. 171
. 175-76 (1987); see also Nelson v. Tenn. Gas 
Pipeline Co.,
243 F.3d 244, 251
(6th Cir. 2001).                          
Under this standard, State Farm’s argument is simple enough—Blair exclusively 
relied  on  Mr.  Blankenship’s  statements  in  making  his  causation  determination  and 
therefore fails to rely on sufficient facts and data.  (Doc. # 34 at 4-6).  The Blankenships 
respond that (1) State Farm has only sought exclusion of Blair’s causation testimony, not 
his  estimate  of  repair  costs,  and  (2)  State  Farm’s  own  expert  contractor,  Tommy 
Middleton, also gave an opinion as to whether certain damage was related to the storm.  
(Doc. # 39 at 1-2).                                                       
The Blankenships are correct that State Farm is not seeking exclusion of Blair’s 
repair estimates, so the Court will not discuss that part of his opinion.  As to Blair’s 
causation opinion, the Blankenships have failed to meet their burden of establishing its 

admissibility by a preponderance of the evidence, namely by failing to show Blair’s opinion 
relies  on  anything  but  speculation.    The  Blankenships  only  argue  that  contractors 
generally know what causes damage to structures and that State Farm’s expert, Tommy 
Middleton, also opined as to the cause of damage to the home.  (Doc. # 39 at 2).  In the 
alternative, the Blankenships ask the Court to limit the excluded testimony so Blair can 
still testify regarding other matters, such as the selection and condition of the house site 
and damage to other parts of the home.  (Id.).                            
The issue for the Blankenships is reliability.  State Farm argues that Blair based 
his opinion solely on Mr. Blankenship’s self-serving statements; while the Blankenships 

respond with a classic “the pot is calling the kettle black.”  Even if Middleton, State Farm’s 
contractor-expert, did speculate as to the cause of the damage to the Blankenships’ 
home, that does nothing to bolster Blair’s reliability.  Nevertheless, the very first sentence 
of Middleton’s report states “[t]he purpose of the estimate is not to determine cause and 
origin of property damages but rather estimate cost of repairs to the best of our knowledge 
and experience from a visual on site inspection.”  (Doc. # 32-11 at 1) (emphasis added).  
Even assuming State Farm’s expert did not rely on sufficient facts or data, at best, this 
proves that neither expert should opine as to causation, not that Blair can still do so.  
State Farm is correct that during his deposition Blair repeatedly acknowledged that 
his opinion is based on Mr. Blankenship’s statements and that he did not even know 
whether the storm occurred.  (Doc. # 34-2 at 2-4) (“I don’t know if the storm even hit or 
not, to tell you the truth.  I’m just taking it up on what he told me.”).  When asked if his 
opinion on whether the storm caused the damage was based on Mr. Blankenship telling 

him so, Blair responded: “Yes.  Everything that he -- that’s been said or notes made of is 
from what he told me.”  (Id. at 4).  When Blair’s statements are coupled with the 
Blankenships’ lack of a response to State Farm’s arguments decrying Blair’s reliability, 
the Court cannot reach any conclusion other than that Blair’s causation opinion is not 
sufficiently reliable to be admissible.                                   
The Court finds that Blair almost exclusively relied on the self-serving speculation 
of Mr. Blankenship, which is simply not a reliable foundation, nor is it based on sufficient 
facts and data.  See In re Scrap Metal Antitrust Litig.,
527 F.3d at 529-30
.  Blair’s report 
also fails to list any basis for his conclusions other than his “personal review of the 

damage to [the] house, Mr. Blankenship’s statements, and [his] professional experience 
with 45 years as a contractor.”  (Doc. # 32-9 at 7).  However, this does nothing to explain 
how Blair made his conclusions, e.g., his chain of reasoning.  The Court will not allow 
ambiguous observations without any explicit chain of reasoning to qualify as an expert 
opinion because Daubert exists to prevent such “scientific guesswork.”  Adler v. Elk 
Glenn,  LLC,
986  F.  Supp.  2d  851,  857
(E.D.  Ky  2013)  (citing  Barnette  v.  Grizzly 
Processing, LLC, No. 10-77,
2012 WL 293305
, at *3 (E.D. Ky. Jan. 31, 2012)).   As a 
result, State Farm’s motion is granted and Blair’s causation opinion is excluded.  
B.   Motion to Exclude Plaintiff’s Expert Tony Little                
State Farm seeks exclusion of the Blankenships’ expert Tony Little because his 
testimony considers the fair market value of the house; State Farm argues fair market 
value is irrelevant because the terms of the insurance contract define the proper measure 
of loss calculation as the actual cash value.  (Doc. # 33 at 1-2).  The Blankenships 

respond by conceding that Little did opine as to the fair market value of the house and 
that the insurance contract prohibits recovery based on that valuation.  (Doc. # 38 at 1-
2).  They further explain that Little was hired to support the Blankenships’ bad-faith claim, 
which has been bifurcated.  (Id. at 1).                                   
Still, the Blankenships argue that Little also opined as to the rental value of the 
property, and that State Farm did not seek to exclude that part of his testimony.  (Id. at 
2).  They maintain that this testimony is probative of the issues in this matter because the 
insurance contract allows for loss of potential rental income.  (Id.).  State Farm responds 
that it wants Little entirely excluded as an expert, that the Blankenships failed to disclose 

that Little would offer any opinions about the rental value of the house, and that Little’s 
testimony regarding rental value is unreliable under Rule 702 and Daubert.  (Doc. # 42 at 
1-6).  Because the parties agree that Little’s fair market value testimony should be 
excluded  at  this  stage,  the  Court  will  only  consider  the  arguments  concerning  his 
testimony regarding rental income.                                        
Unfortunately for the Blankenships, Little’s rental value testimony is unreliable.  As 
the Blankenships themselves point out, “[a]t his deposition, Mr. Little noted that he could 
not provide an accurate valuation of the property on this [income approach] method due 
to a lack of comprehensive rental data.”  (Doc. # 38 at 2) (emphasis added).  The 
Blankenships then try to rehabilitate their argument by noting that Little has extensive 
experience with real estate and that he testified as to the fair rental value at his deposition 
anyway.  (Id.).  Even assuming arguendo that Little’s experience qualified him, he used 
that same “extensive experience” to state at his deposition that when it comes to the 
income approach “there’s not enough data and there’s not enough--you just can’t support 

it, that, with the income approach.”  (Doc. # 42-1 at 2).1  Indeed, he left the “Income 
Approach to Value” section of his report entirely blank and admitted during his deposition 
that he did not provide an estimate on it.  (Docs. # 33-3 at 5, 33-4 at 2, and 38-2 at 7) 
(“We normally don’t do the income approach because we just don’t have the--enough 
information to complete that.”).                                          
So, the at-issue expert himself concluded that there was not enough data in the 
area to support a rental income valuation.  It almost goes without saying that there is a 
lack of sufficient facts and data under Rule 702 to support Little’s off-the-cuff rental 
estimate given during his deposition.  (Doc. # 38-2 at 8) (“Well, like I said, that--every now 

and again I’ll get one that I have to do that for, I have to find the income--I mean, the--find 
the rentals for, and based off of what I’ve seen in the last--probably between 1,000, 
$1500--").  While real estate values are generally based on speculation, they still utilize 
data points and comparative analysis.  See Hescott,
2012 WL 4955254
, at *2.  Little 
clearly did not rely on such data because it was unavailable, as he explained.  Again, the 
Court will not allow ambiguous observations without any explicit chain of reasoning to 
qualify as an expert opinion.  Adler,
986 F. Supp. 2d at 857
.             

1    The “income approach” utilizes an estimation of rental value, typically by comparing similar 
rental properties in the area to the subject property.  Hescott v. City of Saginaw, No. 10-13713,
2012 WL 4955254
, at *2 (E.D. Mich. Oct. 17, 2012).                        
Alternatively, Federal Rule of Civil Procedure 26(a)(2)(B) requires disclosure of an 
expert report that contains “a complete statement of all opinions the witness will express 
and the basis and reasons for them,” among other requirements.  Rule 37(c)(1) further 
explains that if a party fails to provide information as required by Rule 26(a), “the party is 
not allowed to use that information or witness to supply evidence on a motion, at a 

hearing, or at a trial, unless the failure was substantially justified or is harmless.”   
Here, the Blankenships’ Rule 26(a) expert witness disclosures detail that Little 
would testify as to the fair market value of the home, the damage caused by the storm, 
resulting property values, and the monetary damages caused by Defendant’s delay in 
paying the Blankenships’ claims.  (Doc. # 33-1 at 1).  This report listed nothing about the 
potential rental value of the property and his attached report also left the income approach 
section blank.  (Doc. # 33-3 at 5).  After all, Little noted during his deposition that he did 
not provide an estimate based on the income approach and that he was not provided with 
any new information since he prepared his report, so his opinions had not changed since 

its issuance.  (Doc. # 38-2 at 10).  The Blankenships do not attempt to argue that this 
failure to disclose is justified or harmless, so this constitutes an independent reason to 
exclude Little’s rental value testimony. Therefore, State Farm’s motion is granted and 
Little’s testimony as to rental value and fair market value is excluded.2 
C.   Summary Judgment                                                
Summary judgment is appropriate “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).  A genuine issue of material fact exists where “the evidence is such 

2    The issue of Little’s testimony as it relates to the bad-faith claim is not considered in this 
analysis because that claim has been bifurcated.                          
that a reasonable jury could return a verdict for the nonmoving party.”  Anderson v. Liberty 
Lobby, Inc.,
477 U.S. 242, 248
(1986).  The party moving for summary judgment “bears 
the burden of showing the absence of any genuine issues of material fact.”  Sigler v. Am. 
Honda Motor Co.,
532 F.3d 469, 483
(6th Cir. 2008) (citing Plant v. Morton Int’l Inc.,
212 
F.3d 929, 934
(6th Cir. 2000)).  On the other hand, “the party opposing summary judgment 

must show that she can make good on the promise of the pleadings by laying out enough 
evidence that will be admissible at trial to demonstrate that a genuine issue on a material 
fact exists, and that a trial is necessary.”  Alexander v. CareSource,
576 F.3d 551, 558
(6th Cir. 2009).3                                                         
In deciding a motion for summary judgment, the Court must draw all reasonable 
inferences in favor of the non-moving party.  Matsushita Elec. Indus. Co. v. Zenith Radio 
Corp.,
475 U.S. 574, 587
(1986).  However, the Court does not weigh the evidence or 
determine the truth of matters asserted.  Anderson,
477 U.S. at 249
.  Following the Court’s 
review of the record, if a “rational factfinder could not find for the nonmoving party, 

summary judgment is appropriate.”  Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 
344, 349
(6th Cir. 1998).  “When there is evidence to support each version of the parties’ 
dueling allegations, summary judgment is not appropriate—even when the evidence 
includes self-serving statements from the parties.”  Davis v. Gallagher,
951 F.3d 743, 745
(6th Cir. 2020).                                                          
Here, the parties dispute whether the damage was (1) caused by “accidental direct 
physical loss” as required by the contract and (2) whether the anti-concurrent cause 

3    Therefore, the Court will not consider the Mr. Blair’s causation opinion—nor the parties’ 
arguments related to it—because that opinion has been found inadmissible at trial, as discussed 
in Part III, Section A of this Opinion.                                   
(“ACC”) clause of the contract excludes coverage.  (Docs. # 32-1, 37, and 43).  The Court 
agrees that the ACC clause excludes the specific damage to the home.4  The ACC clause 
explains that State Farm:                                                 
will not pay for, under any part of this policy, any loss that would not have 
occurred in the absence of one or more of the following excluded events.  
We will not pay for such loss regardless of: (a) the cause of the excluded 
event; or (b) other causes of the loss; or (c) whether other causes acted 
concurrently or in any sequence with the excluded event to produce the loss 
. . . .                                                              

b. Earth Movement, meaning the sinking, rising, shifting, expanding, or 
contracting of earth, all regardless of whether combined with water, sewage, 
or  any  material  carried  by,  or  otherwise  moved  by  the  earth.    Earth 
movement includes but is not limited to:                             

(1)  earthquake;                                                     
(2)  landslide, mudslide, or mudflow;                                
(3)  sinkhole or subsidence;                                         
(4)  movement resulting from:                                        
     (a)  improper compaction;                                       
     (b)  site selection;                                            
     (c)  natural resource extraction activities; or                 
     (d)  excavation;                                                
(5)  erosion;                                                        
(6)  pressure by surface or subsurface earth or fill; or             
(7)  any volcanic activity, except as specifically provided          

(Doc. # 32-13 at 28).  In short, the ACC clause stands for the proposition that when two 
causes of a loss exist and one is a covered event and the other is not, the clause 
precludes coverage.  State Farm proffers that the damage to the driveway and brick 
veneer occurred because of earth movement exacerbated by water runoff.  (Doc. # 32-1 
at 11).  Per the above quoted language, that occurrence is excluded under the terms of 
the contract because earth movement is not a covered event.  (Id.).  Indeed, State Farm’s 
expert, Engineer Matthew Richardson, concluded that the cause of the damage to the 

4    Because the ACC clause issue is dispositive of the pending motion, the Court need not 
address the parties’ arguments related to “accidental physical loss” under the contract. 
brick veneer was “the downward displacement of the foundation, which was the result of 
the combination of water saturating the soil due to a disconnected downspout and the 
nearby steep slope instability.”  (Doc. # 32-5 at 5).  He also concluded that the driveway 
damage was “caused by a loss of support from the soil and base beneath the pavement 
. . . . The adjacent steep slope would also allow the supporting soil to displace westward.”  

(Id.).                                                                    
The Blankenships respond that (1) the Court should engage in an “efficient or 
proximate cause” analysis and (2) State Farm’s contention that the earth movement 
began before the storm is hotly disputed which creates a genuine issue of material fact.  
(Doc. # 37 at 12-18).                                                     
The Blankenships’ first argument is without merit.  Generally, an ACC clause is 
enforceable.  See Cont'l Ref. Co., LLC v. Hartford Steam Boiler Inspection & Ins. Co.,
350 
F. Supp. 3d 601
, 608 n.4 (E.D. Ky. 2018) (collecting cases), aff'd,
769 F. App'x 355
(6th 
Cir. 2019).  The Court will abide by the terms of the parties’ agreement; thus, the Court 

has no reason to engage in a proximate or efficient cause analysis, especially given that 
Kentucky has not explicitly adopted the concurrent proximate cause doctrine.
Id.
(citing 
Johnson v. Capitol Specialty Ins. Corp., Nos. 2017-CA-171-MR, 2017-CA-172-MR,
2018 
WL 3090503
, at *6-7 (Ky. Ct. App. June 22, 2018)).5                       



5    The Blankenships argue that Reynolds v. Travelers Indemnity Co. of America,
233 S.W.3d 
197, 203
(Ky. Ct. App. 2007), approves of the use of efficient proximate cause doctrine under 
Kentucky law.  (Doc. # 37 at 13-14).  However, the court later clarified that “Reynolds is an opinion 
of the Court of Appeals, and it did not officially adopt the doctrine; it approved of the reasoning in 
a case from our sister state . . . which applied the ‘efficient proximate cause doctrine.’” Johnson 
v. Capitol Specialty Ins. Corp., Nos. 2017-CA-171-MR, 2017-CA-172-MR,
2018 WL 3090503
, at 
*6-7 (Ky. Ct. App. June 22, 2018) (emphasis added).                       
Second, the Blankenships’ argument about the “hotly disputed” issue of whether 
the earth under the house began moving prior to the storm misses the mark.  The timing 
is irrelevant.  Instead, the crucial question to the Blankenships’ claim is whether a genuine 
issue of material fact exists as to the cause of the damage.  If not, then summary judgment 
is  appropriate  because  the  damage  would  not  be  covered  under  the  terms  of  the 

insurance contract.  Based on all the evidence, even taken in the light most favorable to 
the Blankenships, there is not a genuine issue of material fact as to this question.  State 
Farm posits that earth movement mixed with water runoff is the cause of the cracking to 
both the brick veneer and driveway.  The Blankenships fail to meaningfully contest State 
Farm’s explanation.                                                       
As an initial matter, the evidence is clear that the cracking—and the movement of 
earth—occurred prior to the storm.  The only evidence the Blankenships rely on that 
unequivocally asserts that the cracking of the brick veneer occurred exclusively after the 
storm is Mr. Blankenship’s own testimony.6  At his deposition, Mr. Blankenship repeatedly 

stated that he had never noticed any cracking before the storm.  (Docs. # 32-7 at 1-2 and 
37-2 at 15).  Yet, this assertion is contradicted by the testimony of both Mr. Blankenship’s 
daughter and her husband, the two tenants of the home.  The daughter, Jamee Dempsey, 
testified that prior to the storm, she had “noticed [the cracking] a little bit.”  (Doc. # 43-1 
at 2).  She then confirmed that it was the same cracking at issue, in the same area, and 
she had seen it progress over years.  (Id.).  Chris Dempsey, the son-in-law who was also 
living in the home at the time, admitted that the cracks to the brick veneer existed prior to 


6    The Blankenships posit that the deposition testimony of Mrs. Blankenship, their daughter 
Jamee Dempsey, and their son-in-law Chris Dempsey support the conclusion that no cracking 
occurred until after the storm, but that is belied by the record.  (Doc. # 37 at 15). 
the storm: “that crack wasn’t nearly as big right after the storm.”  (Docs. # 37-5 at 1 and 
43-2 at 3).                                                               
These  statements,  combined  with  Engineer  Richardson’s  analysis  and 
conclusions that earth movement and water runoff over time caused the cracking to the 
brick veneer and driveway, support State Farm’s theory.  (Doc. # 32-5 at 5).  Reliance on 

Mr. Blankenship’s testimony—on its own—is misguided.  While self-serving statements 
can be part of the evidence that creates a genuine issue of material fact, they cannot be 
the only evidence, especially when blatantly contradicted by the record.  See Davis,
951 
F.3d at 749-50
(“[W]here self-serving testimony is blatantly and demonstrably false, it 
understandably may not create a genuine issue of material fact, thereby allowing a court 
to grant summary judgment.”).                                             
Naturally, Mr. Blankenship’s self-serving testimony alone is insufficient to meet his 
burden of showing a genuine issue of material fact because it is contradicted on every 
front; if it were sufficient, then any plaintiff could use a self-serving affidavit to defeat a 

motion for summary judgment.  See Alexander,
576 F.3d at 558
; Sperber v. Nicholson,
342 F. App'x 131, 132
(6th Cir. 2009) (“[The plaintiff’s prima facie case thus relies on his 
own self-serving innuendo and speculation, which does not suffice to survive summary 
judgment.”); Coverdale v. Conley, No. 1:19-CV-920,
2022 WL 950307
, at *3 (S.D. Ohio 
Mar. 30, 2022), aff'd, No. 22-3378,
2023 WL 246831
(6th Cir. Jan. 18, 2023) (“Thus, when 
presented with competing narratives in a summary judgment motion, a court is not 
required to conclude a question of fact exists—it must carefully review the record to 
determine whether a genuine issue of material fact exists.”); Okojie v. Metro. Nashville 
Hosp. Auth.,
584 F. Supp. 3d 543
, 552 n.13 (M.D. Tenn. 2022), appeal dismissed, No. 
22-5164,
2022  WL  3754859
(6th  Cir.  July  28,  2022)  (noting  that  while  self-serving 
statements should be considered in light of Davis they are met with “some additional 
scrutiny.”).                                                              
In  Coverdale,  the  district  court  upheld  a  magistrate  judge’s  conclusion  that 
summary judgment was appropriate because the magistrate reviewed the record and 

identified evidence blatantly contradicting the plaintiff’s version of events within multiple 
records, to the extent that “no reasonable juror could credit his version.”
2022 WL 
950307
, at *3.  Here, the deposition testimony of the family of Mr. Blankenship, who were 
the only ones living at the home before and after the storm, as well as an engineer expert, 
blatantly contradict Mr. Blankenship’s denial of any previous cracks.  As such, summary 
judgment is appropriate.                                                  
More importantly, while the Blankenships disagree with State Farm as to when the 
earth began to move, the key issue remains—they have failed to provide an alternate 
explanation other than movement of the earth mixed with water runoff for the damage to 

the home.  They have no evidence to support an alternate theory of causation; even Mr. 
Blankenship does not attempt to extrapolate a theory as to the cause of the cracking, he 
just states that it did not occur until after the storm.  (Docs. # 32-7 at 1-2 and 37-2 at 15).  
Even if the cracking occurred after the storm, that does not explain the cause of the 
cracking, rather it debates the timeline of the onset of the earth movement.  At the end of 
the day, the theory that the cracking was caused by earth movement combined with water 
runoff is the only one advanced and it is immaterial whether it occurred before or after the 
storm.  State Farm has met its burden of showing that there is no genuine dispute of 
material fact here; the Blankenships have failed to show the converse.  Sigler,
532 F.3d 
at 483
; Alexander,
576 F.3d at 558
.  Consequently, State Farm’s motion is granted. 
IV.    CONCLUSION 
 Accordingly, IT IS ORDERED that: 
 (1)    Defendant's  Motion  for  Partial  Summary  Judgment  (Doc.  #  32)  is 
GRANTED; 
 (2)  | Defendant’s Motion to Exclude Plaintiffs’ Proposed Expert, Tony Little (Doc. 
# 33) is GRANTED; 
 (3)  | Defendant's  Motion  to  Exclude  Testimony  by  Vance  Blair  Regarding 
Causation (Doc. # 34) is GRANTED; and 
 (4)    As  Defendant  only  sought  partial  summary judgment  in  its  motion,  the 
parties shall file a joint status report indicating the remaining claims in this matter within 
twenty (20) days from entry of this Order. 
 This 24th day of March, 2023. 
                           Lm   Signed By: 
                           Re)   Ott  seme   VP 
                             “ms  ~=s-: United States District Judge 

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