Junior Partner Matthew Wendler, Esq., obtained a dismissal with prejudice in First Party Property matter on January 2, 2022, the eve of trial, putting an end to the litigation that had been ongoing for over two years. The complaint in Bobbili v. Defendant Insurance Company was filed in July 2019, following Defendant’s denial of the insureds’ claim for water damage and mold on the basis of long-term leakage or seepage. Before suit was filed, Defendant was unable to determine the specific cause and origin of the loss because the insureds opted not to retain a contractor to cut out the affected drywall to repair the system or appliance from which the leak emanated. After suit was filed, Plaintiffs did not mitigate their damages: they did not retain a contractor to fix the leak, so it continued to cause damage to their home.

Following the depositions of the plaintiffs’ general contractor and engineer, Defendant timely filed a motion for summary judgment. Due to the court’s unilateral cancelation of the special-set hearing on the motion, Defendant was unable to have it heard prior to trial. Plaintiffs’ opposition to the motion included an affidavit signed by one of the plaintiffs crafted in a manner to create a factual issue for trial, to suggest that the loss resulted from a faulty December 2017 repair such that all ensuing damages relating to the March 2018 claim would be covered under the policy.

When the parties exchanged exhibits, Plaintiffs produced two photographs that had not previously been produced in discovery. Defendant suspected that the photographs were not taken in December 2017 (as suggested in the affidavit used to oppose the motion for summary judgment) and requested Plaintiffs to produce the original photographs so the metadata could be analyzed. Upon receipt of the original photographs, produced two days before trial, the metadata showed that the photographs were taken almost a year before what had been represented in the affidavit. Upon discovery of this information, Defendant informed Plaintiffs and offered to not pursue fees and costs from the long-expired nominal proposals for settlement if Plaintiffs filed a notice of dismissal with prejudice. Plaintiffs filed the notice of dismissal with prejudice on January 2, 2022, the eve of trial, putting an end to the litigation that had been ongoing for over two years.