Korsun v. Guardian Insurance Company

Opinion

DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX ║

GEORGES KORSUN and OLIVIA ║ KORSUN, ║ ║ 1:18-cv-00047 Plaintiffs, ║ ║ v. ║ ║ GUARDIAN INSURANCE COMPANY, ║ ║ Defendant. ║ ________________________________________________ ║ TO: Paul Neil, Esq. Daryl C . Barn es, Esq . Melissa R. Heidelberg, Esq.

ORDER

THIS MATTER is before the Court upon Defendant’s Motion To Declare Scope Of Covered Property Under Plaintiffs’ Insurance Policy (ECF No. 32, “Mot.”). Plaintiffs filed a response in opposition to the motion on October 18, 2019 (ECF No. 36, “Opp’n.”). Defendant filed a reply on November 1, 2019 (ECF No. 37). Defendant informs the Court that the parties’ appraisers are at an impasse regarding whether the parties’ insurance contract covers Plaintiffs’ detached, separate guesthouse. Mot. at 1-2. Specifically, the parties’ appraisers disagree as to how to interpret the portion of the the Declarations page to the policy, which provides: “ONE STORY ONE FAMILY DWELLING OF MASONRY CONSTRUCTED WITH AN APPROVEDS ReeO OF LOCATED AT LOCATION: 32 ESTATE CARLTON, FREDERIKSTED, VI 00840.” Mot., Ex. 1 at GIC0002. DefendaSnete’ s appraiser has prepared an estimate appraisal award that covers only the main Korsun v. Guardian Insurance Company

1:18-cv-00047 Order P age 2 See covers both the main house and the separate detached guesthouse. Mot., Ex. 4. Plaintiffs argue that Defendant effectively ratified coverage of the guesthouse by already making coverage payment that included estimated costs to repair the guest house. (Opp’n. at 4, Ex. D). Plaintiffs alternatively argue that coverage should be interpreted in their favor, that the parties operated under a common understanding that coverage included the guesthouse, and that Defendant’s interpretation of the contract is barred by the doctrine of promissory estoppel. (Opp’n. at 5-9). The language of the appraisal provisiosnh oafll t fhaeil c toon atgrarecet satsa ttoes t haes afocltluoawl sc:a sh value or the amount of loss In case the insured and this Company , then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, alating[sic] separately actual cash value and loss to each, item; and, failing to agree, shall submit their differences, only, to the umpire. An award, in writing, so itemized, or any two when filed with this Company shall determine the amount of actual cash value and loss.

Mot., Ex. 1 (Policy) at GIC0003 (emphasis added).

Even if the parties’ appraisers are at an impasse, the appraisal provision was drafted in a way that anticipated such a problem and provides the parties with additional mandates that they must comply with in order to exhaust the appraisal process. This court was faced with a similar issue earlier this year when an insured plaintiff sought judicial interpretation Korsun v. Guardian Insurance Company

1:18-cv-00047 Order P age 3

denied the plaintiff’s motion without prejudice, concluding that it was premature to make a ruling: The Court is most concerned about the ripeness of the issue at this point…The appraisers in this case apparently have not even submitted their proposals to the umpire. And, while the umpire’s award will be presumptively valid, it can still be vacated for procedural deficieSneceie Vse, nto v. bCeerctaauisne U “nitd iesr wweriltl-esrest atlte Ldl othydats an appraisal award may be set aside due to fraud, mistake, misfeasance, coAllmusbioienn,t p Grrepju., dInicce. vo.r C poanrtt’li aIlnitsy. C.”o) . , No. CV 2018-91, 2019 WL 2402973, at *4 (D.V.I. Apr. 26, 2019) (quoting , 1994 WL 326602, at *2 (D.V.I. Mar. 2, 1994). It seems prudent to let the process play Hatter vo.u Gt ubaerfdoiraen t hInes .C Coou.rt takes action.

, No. 1:18-CV-00041, 2019 WL 3892415, at *2 (D.V.I. Aug. 19, 2019). The court also included that the plaintiff’s request was “tantamount to an additional claim seeking a declaratory judgment” and that the court did not have any authority to makeId t.h e kind of ruling sought by Plaintiff when it was not prayed for in the complaint. at *2. Similarly, here, the Court is not yet able to entertain Defendant’s argument. For these reasons, the Court will deny Defendant’s motion without prejudice. ORDERED WHEREFORE, it is now hereby that Defendant’s Motion To DDeEcNlaIEreD S WcoIpTeH OOf UCTov PeRreEdJU PDroICpeErty Under Plaintiffs’ Insurance Policy (ECF No. 32) is . ENTER:

Dated: November 1, 2019 /s/ George W. Cannon, Jr. GEORGE W. CANNON, JR.