Keep in mind my put up final January, Property Insurance coverage Appraisal Regulation Is Dynamic? Me neither. Nevertheless, the insurance coverage firm dropping the problem concerning causation being allowed in appraisal in Indiana wouldn’t quit.
Confronted with one other movement asking the decide to vary the end result, the decide re-emphasized final week that causation is a part of the scope that appraisers can think about in Indiana:1
Motorists first argues that the Order conflicts with prior selections of the Southern District of Indiana. Dkt. 100 at 4–7. However Motorists beforehand cited these selections in its briefing on the motions for partial abstract judgment. And the Courtroom defined why it didn’t observe them: ‘To the extent that Motorists cites circumstances from this district which have discovered that causation is a matter preserved for the Courtroom to find out after appraisal…these circumstances predate [Villas at Winding Ridge v. State Farm Fire & Casualty Co., 942 F.3d 824, 830 (7th Cir. 2019)] the place the Seventh Circuit upheld the umpire’s award, and ‘scope of loss’ choice, as binding.’ A movement for reconsideration will not be the ‘acceptable discussion board for rehashing beforehand rejected arguments.’ Caisse Nationale, 90 F.3d at 1269–70.
Motorists subsequent argues that the Courtroom’s Order conflicts with Indiana Courtroom of Appeals precedent, however the circumstances that Motorists cites had been accessible for Motorists to quote and argue within the underlying abstract judgment briefing. (citing Westfield Nat. Ins. Co. v. Nakoa, 963 N.E.second 1126, 1134 (Ind. Ct. App. 2012); Weidman v. Erie Ins. Grp., 745 N.E.second 292, 297-98 (Ind. Ct. App. 2001)).2 Reconsideration will not be the place for ‘arguing issues that might have been heard through the pendency of the earlier movement.’ Caisse Nationale, 90 F.3d at 1269–70.
Regardless, Westfield and Weidman don’t contradict the Courtroom’s Order as a result of neither case held that an appraisal award can’t be binding on the problem of causation. Westfield discovered an appraisal award wasn’t binding as a result of the umpire’s award explicitly acknowledged the quantity was solely owed ‘if the Courtroom finds protection for this loss.’ 963 N.E.second at 1134. And Weidman discovered that, primarily based on the coverage’s limitation that fee couldn’t exceed the smaller of the substitute price or the quantity really spent on the restore, the court docket ‘should conclude that the Appraisal Quantity and Award decide the quantity of Weidman’s loss solely, and different provisions within the coverage govern the extent of Erie’s legal responsibility for that loss.’ 745 N.E.second at 298. Due to this fact, Westfield and Weidman don’t render the Courtroom’s Order a ‘manifest error of regulation.’
Primarily based on the next rejected argument by the insurer in its briefing, my prediction is that this case could also be headed for an attraction:
In 2014, this Courtroom acknowledged {that a} coverage with the identical ‘Appraisal’ provision as MMIC’s coverage ‘expressly ponder[d] that the insurer might deny protection and assert defenses–together with that the injury or a portion of it’s exterior the contractual scope of protection–after an appraisal has taken place to find out the quantity of loss.’ Philadelphia Indem. Ins. Co. v. WE Pebble Level, 44 F. Supp. 3d 813, 819 (S.D. Ind. 2014) (emphasis in authentic). In 2016, this Courtroom confirmed its earlier choice agreeing with the insurer ‘primarily based on the availability within the Coverage that [the insurer] retains its ‘proper to disclaim the declare’ even when there’s an appraisal–that regardless of an appraisal award, [the insurer] presumably may nonetheless ‘interpos[e] defenses from elsewhere within the contract, similar to ‘uncovered’ causes of loss.’ Philadelphia Indem. Ins. Co. v. WE Pebble Level, No. 1:13-cv-1453-SEB-DML, 2016 WL 11458291 (S.D. Ind. Jan. 28, 2016) (quoting Pebble Level, 44 F. Supp. 3d at 819), report and suggestion adopted sub nom. Philadelphia Indem. Ins. Co. v. We Pebble Level, LLC, 2016 WL 6818516 (S.D. Ind. Nov. 18, 2016). In actual fact, this Courtroom declined to order a second appraisal in Pebble Level as a result of the insurer may presumably ‘insist on litigating causation points if it had been dissatisfied with the brand new appraisal award[.]’
The Order mistakenly relied on the Seventh Circuit’s choice in Villas at Winding Ridge v. State Farm Hearth & Cas. Co., 942 F.3d 824 (seventh Cir. 2019). However as this Courtroom acknowledged over two years in the past on this case, ‘Villas didn’t maintain that an appraisal award prevents events from elevating defenses exterior the quantity of loss.’ ECF 31 at 11. The Order acknowledges that Villas didn’t handle the ‘proper to disclaim’ clause (ECF 31 at 10) however states, ‘the Seventh Circuit rejected the insured’s place, discovering the coverage’s appraisal provision as a complete–not simply chosen phrases or strains inside the provision–binding and unambiguous.’ ECF 31 at 10. That the appraisal provision is binding and unambiguous doesn’t have an effect on MMIC’s place, which relies on the unambiguous ‘proper to disclaim’ clause within the appraisal provision.
So, whereas the matter might not lastly be resolved due to the true chance of attraction, it seems that causation of whether or not a construction was broken by hail is a matter that an appraisal panel can think about if this ruling is upheld.
One final level—from the policyholder’s perspective, insurance coverage corporations are litigation and claims fee delaying machines. Is appraisal actually a quick and environment friendly technique of resolving disputes when insurers can nit-pick at each high-value appraisal award?
Thought For The Day
A far higher issue than abolishing poverty is the deterrent impact of swift and sure penalties: swift arrest, immediate trial, sure penalty and – sooner or later – finality of judgment.
—Warren E. Burger
1 Mesco Mfg. v. Motorists Mut. Ins. Co., No. 1:19-cv04875 (S.D. Ind. Aug. 18, 2023).
