Indianapolis Airport Authority v. Travelers Property Casualty Co. of America

849 F.3d 355, 96 Fed. R. Serv. 3d 1213, 2017 WL 657437, 2017 U.S. App. LEXIS 2856
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 17, 2017
DocketNo. 16-2675
StatusPublished
Cited by64 cases

This text of 849 F.3d 355 (Indianapolis Airport Authority v. Travelers Property Casualty Co. of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Indianapolis Airport Authority v. Travelers Property Casualty Co. of America, 849 F.3d 355, 96 Fed. R. Serv. 3d 1213, 2017 WL 657437, 2017 U.S. App. LEXIS 2856 (7th Cir. 2017).

Opinion

HAMILTON, Circuit Judge.

In this diversity-jurisdiction case, the Indianapolis Airport Authority sued Travelers Property Casualty Company ■ of America over Travelers’ partial denial of a claim for coverage arising from an airport construction accident that occurred in 2007. On motions for summary judgment, the district court interpreted the insurance contract in favor of Travelers on several issues. Following summary judgment, the Airport Authority’s case was narrowed to a claim for unreimbursed inspection costs associated with the incident. Then, two weeks before trial was set to begin on that claim, the district court entered an eviden-tiary order that effectively precluded the Airport Authority from proving that sole remaining claim. The Airport Authority sought entry of final judgment so that it could appeal, and the district court entered judgment in Travelers’ favor. On the Airport Authority’s appeal, we affirm in part and reverse in part the district court’s summary judgment order, and we vacate the evidentiary order for further consideration in light of this opinion.

I. Factual and Procedural Background

Plaintiff Indianapolis Airport Authority owns and operates the Midfield Terminal, a passenger terminal that opened for business on November 11, 2008. The Midfield Terminal project cost over $1 billion — and like any project of such magnitude, it had its share of setbacks. In January 2007, two shoring towers were being used to lift steel trusses to the roof of the terminal. Those shoring towers failed, causing a portion of the terminal’s roof structure to drop by about twelve inches. As a result of that “Shoring Tower Incident,” work on the terminal stopped temporarily. The Airport Authority incurred millions of dollars in inspection and repair costs, as well as ancillary costs traceable to the incident. Yet despite the setback, the project remained largely on schedule. Before the Shoring Tower Incident, the terminal. had been scheduled to open for business on September 28, 2008. It ultimately opened 44 days later, on November 11, 2008.

Construction of the Midfield Terminal project was insured by a commercial inland marine policy underwritten by defendant, Travelers. Unlike most insurance policies for consumers, the policy was not a boilerplate contract of adhesion but was instead a customized policy negotiated by the parties. The policy included three categories of coverage at issue in this litigation: (1) builders’ risk (the “General Coverage Provision”); (2) soft costs (the “Soft ' Cost Provision”), particularly bond interest in excess of the budgeted amount; and (3) expenses to reduce the amount of loss, known a little awkwardly as ERAL (the “ERAL Provision”), an additional coverage feature that paid for certain expenses incurred by the Airport Authority to reduce delay and mitigate soft costs. The policy also included other coverages and coverage extensions that are not at issue here. We have considered the breadth and complexity of the policy in evaluating the scope of the provisions that are at issue, particularly the General Coverage Provision.

In 2008, the Airport Authority provided Travelers with a tentative proof of loss statement for the Shoring Tower Incident. It submitted a revised, sworn proof of loss statement in 2012. In its proof of loss, the Airport Authority identified a total claim [360]*360of approximately $12.8 million, less $3.6 million in payments that Travelers had already made. Following further adjustments by the Airport Authority and some additional payments by Travelers, the insurance company rendered a final claim decision in July 2013, leaving the Airport Authority with a non-covered loss of a little over $9 million exclusive of any soft costs.

The Airport Authority then sued, alleging that Travelers breached its contract and seeking a declaratory judgment on the extent of coverage and the parties’ rights and obligations under the policy. After discovery, the parties filed cross-motions for summary judgment. The district court denied the Airport Authority’s motion and granted Travelers’ motion in large part. The court construed the General Coverage Provision narrowly, and it held that the Airport Authority was not entitled to soft costs or ERAL coverage. See Indianapolis Airport Authority v. Travelers Property Casualty Co. of America, 178 F.Supp.3d 745, 764-65 (S.D. Ind. 2016).

As a practical matter, after the district court’s summary judgment order, only one aspect of the Airport Authority’s non-covered loss remained for trial: its claim for around $2 million in inspection costs under the General Coverage Provision. Shortly before trial was scheduled to begin, however, Travelers moved to exclude opinion testimony by two key witnesses whom the Airport Authority had designated as hybrid fact/expert witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). The district court restricted the subject matter about which those hybrid witnesses might testify while also holding that the Airport Authority would have to prove its damages with expert testimony. See Indianapolis Airport Authority v. Travelers Property Casualty Co. of America, No. 1:13-cv-01316-JMS-MPB, 2016 WL 2997506, at *10, 13-14 (S.D. Ind. May 23, 2016). That ruling proved fatal to the Airport Authority’s remaining claim because it had designated no damages expert. The Airport Authority therefore moved for entry of final judgment, reserving its right to appeal the adverse rulings. The district court entered final judgment in Travelers’ favor.

On appeal, the Airport Authority challenges both the district court’s summary judgment order and its order on Travelers’ motions to exclude. With respect to the summary judgment order, we agree with the district court’s construction of the General Coverage Provision. We also agree that the Airport Authority has no compen-sable soft cost claim because of the deductible. However, we disagree with the district court’s conclusion that the policy’s ERAL Provision was not triggered. If the Airport Authority can demonstrate with competent evidence that it incurred expenses to reduce soft costs for which Travelers otherwise would have been liable, it may recover those expenses' under the ERAL Provision, subject to policy limits. With respect to the district court’s eviden-tiary rulings, we think it best to vacate those rulings for the court’s reconsideration in light of our analysis concerning the scope of insurance coverage and the topics for trial. We provide some guideposts for the court and the parties on remand.1

[361]*361II. The Scope of Coverage

A. Legal Standards

We review de novo the district court’s decision on the parties’ cross-motions for summary judgment, construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed. Hess v. Board of Trustees of Southern Illinois University, 839 F.3d 668, 673 (7th Cir. 2016).

The parties agree that Indiana law governs our interpretation of the insurance policy at issue here. In Indiana, insurance policies are generally subject to the same rules of construction that apply to other types of contracts. Frye v. Auto-Owners Ins. Co., 845 F.3d 782

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849 F.3d 355, 96 Fed. R. Serv. 3d 1213, 2017 WL 657437, 2017 U.S. App. LEXIS 2856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indianapolis-airport-authority-v-travelers-property-casualty-co-of-ca7-2017.