Trout Brook South Condominium Ass'n v. Harleysville Worcester Insurance

995 F. Supp. 2d 1035, 2014 WL 460851, 2014 U.S. Dist. LEXIS 14108
CourtDistrict Court, D. Minnesota
DecidedFebruary 5, 2014
DocketCiv. No. 12-2888 (RHK/JSM)
StatusPublished
Cited by11 cases

This text of 995 F. Supp. 2d 1035 (Trout Brook South Condominium Ass'n v. Harleysville Worcester Insurance) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trout Brook South Condominium Ass'n v. Harleysville Worcester Insurance, 995 F. Supp. 2d 1035, 2014 WL 460851, 2014 U.S. Dist. LEXIS 14108 (mnd 2014).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

This insurance-coverage action arises out of hail damage sustained by a town-home development, Plaintiff Trout Brook South Condominium Association (“Trout Brook”), in 2010. Trout Brook alleges that its insurer, Defendant Harleysville Worcester Insurance Company (“Harleysville”), failed to pay all of the damages it is entitled to recover under its policy. Presently before the Court is Harleysville’s Motion for Summary Judgment. For the [1037]*1037reasons that follow, the Court will deny its Motion.

BACKGROUND

Most of the relevant facts are undisputed; where disputed, they are recited below in the light most favorable to Trout Brook.

I. The parties and the policy

Trout Brook comprises eighteen buildings, each containing between four and eight townhomes, in Elk River, Minnesota. At all relevant times, the buildings were insured under a Harleysville policy (the “Policy”) providing (in pertinent part) coverage for “direct physical loss” to “covered property.” In the event of a loss to covered property, the Policy obligated Harleysville to pay for its “replacement cost,” defined as the lesser of (1) “the cost of repair or replacement with similar materials for the same use and purpose, on the same site” or (2) “the cost to repair, replace, or rebuild the property with material of like kind and quality to the extent practicable.”

II. The hail storms and the dispute over the amount of loss

In July 2009, a hail storm struck the Elk River area, causing damage to Trout Brook’s buildings. It submitted a claim to Harleysville, which determined there was damage to the flashings, vents, and valleys on the buildings’ roofs, but not to the roofs’ shingles. Believing there was shingle damage, Trout Brook asked Harleysville for reexamination; Harleysville hired an engineering firm, Haag Engineering (“Haag”), to do so. Haag reinspected the roofs on June 25, 2010, but that same day, another hail storm struck the area and caused further damage. Trout Brook then submitted a second claim to Harleysville. Haag once again inspected the roofs, this time determining (among other things) that there had been some, but not “significant,” damage to the roof shingles. It estimated total repair costs of approximately $270,000, of which $21,000 was allocated for roof repairs. Harleysville promptly paid this amount to Trout Brook.

Trout Brook did not agree with Harleysville’s assessment and hired its own expert, First Rate Construction (“First Rate”), to evaluate the roofs and prepare a repair estimate. First Rate noted “large hail impacts” that had substantially damaged the roofs’ vents, flashings, and shingles, and accordingly it proposed replacing the roofs in their entirety, at a cost of more than $800,000. Harleysville disagreed with this assessment, and the parties could not reach an accord on the scope of damage and the resulting repair costs. Trout Brook then demanded an “appraisal” under the Policy.1

After examining the buildings, the appraisal panel unanimously determined on July 21, 2011, that Trout Brook was entitled to an additional $81,765.50 in damages. The panel’s award was extremely cursory and neither itemized the damaged property nor addressed precisely how the award was calculated. Nor did the award specify whether the additional damages were predicated on replacement of the roofs in their entirety, or rather only upon replacement of damaged shingles.2 The [1038]*1038award simply provided that the additional sum was for the “gross loss” determined by the appraisal panel, minus Harleysville’s previous payment.

III. Trout Brook attempts repairs

Following the appraisal, Trout Brook hired First Rate to complete the needed repairs. But when it attempted to purchase the same shingles previously used on the roofs — Certain Teed XT-25 shingles in “weathered wood” color — it learned that they were no longer being manufactured. Instead, Certain Teed had changed the shingles’ “color blend” in January 2010, and it recommended that newly manufactured “weathered wood” shingles (now called XT-30) not be mixed with old ones in significant quantities due to the color difference. Nevertheless, Trout Brook purchased several XT-30 shingles in “weathered wood” color to determine how they appeared next to the old shingles, but it concluded the colors were not a match. It then contacted Harleysville to advise it of the situation, contending that the unavailability of color-matching shingles entitled it to complete roof replacement. Harleysville responded by requesting more information, and Trout Brook forwarded a letter from Certain Teed advising of the color change and indicating that it had “no inventory of the old color product and [did] not know of any inventory in the field of the old color product in the XT series.”

By letter dated March 26, 2012, Harleysville informed Trout Brook that it had “complied with all requirements of the appraisal process” and it would not “give further consideration to the issue” of color matching. Trout Brook then retained counsel, who wrote Harleysville on April 11, 2012, asserting that “the problem of non-matching shingles was not considered by the ‘appraisers’ and, therefore, was not part of the loss valuation.” Counsel further noted that the Policy required the use of material “of like kind and quality ” or “similar materials on the same site,” and non-matching shingles would not meet these terms.

Harleysville responded on June 8, 2012, asserting that under the Policy’s “clear and unambiguous” language, it was required only to pay for property that had sustained “direct physical loss.” Thus, it asserted it could not be required to pay for the replacement of undamaged roof shingles — even if they did not match the replacement shingles then available. Despite this assertion, however, it indicated it was “willing to conduct an inspection of the non-damaged shingles and any additional information [Trout Brook] may provide in support of [its] position.” And because the Policy’s “two (2) year suit limitation provision” was set to expire on June 25, 2012— two years after the date of the second hailstorm — and in “light of [Trout Brook’s] supplemental claim for additional damages, and Harleysville’s request for further information and inspection,” Harleysville agreed to extend the suit limitation period for 90 days, that is, to September 25, 2012.

Meanwhile, on June 27, 2012, another roof inspection took place. Jennae Majerus, Trout Brook’s property manager, was present, along with Harleysville’s claims adjuster (Christopher Bennett), Harleysville’s appraiser (Brad Langerman), and Trout Brook’s appraiser (Paul Norcia). Majerus brought new XT-30 shingles with her, and she overlaid them on one building’s roof for color comparison. Unsurprisingly, the parties differed in their assessments — Langerman and Bennett believed the new shingles were “a good match” and “looked okay,” while Majerus and Norcia believed that the new shingles simply did not match the color of those on the roof.

In August 2012, Harleysville offered to submit the “matching” issue to the appraisal panel that had rendered the prior [1039]*1039award. Trout Brook refused.

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995 F. Supp. 2d 1035, 2014 WL 460851, 2014 U.S. Dist. LEXIS 14108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trout-brook-south-condominium-assn-v-harleysville-worcester-insurance-mnd-2014.