Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 17 2014, 6:26 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
GEORGE M. PLEWS DONNA H. FISHER COLIN E. CONNOR Smith Fisher Maas & Howard, P.C. Plews Shadley Racher & Braun LLP Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
VALLE VISTA LIMITED, LLC, ) ) Appellant/Plaintiff, ) ) vs. ) No. 41A05-1309-PL-481 ) SELECTIVE INSURANCE COMPANY ) OF SOUTH CAROLINA, ) ) Appellee/Defendant. )
APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Kevin M. Barton, Judge Cause No. 41D01-1011-PL-84
June 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
Appellant/Plaintiff Valle Vista Limited, LLC, operates a country club in
Greenwood and was insured by Appellee/Defendant Selective Insurance Company of
South Carolina when the club’s roof and rooftop HVAC units were damaged in a hail
storm in April of 2006. Valle Vista and Selective could not agree on the amount of the
damage and so submitted the claim to appraisal. After this appraisal, Valle Vista filed
suit, seeking to set aside the appraiser’s award. In August of 2011, the parties reached a
negotiated settlement of the lawsuit (“the Agreement”), which provided for a second
appraisal by an umpire of the damage to Valle Vista’s tile roof. The agreement provided,
inter alia, that the umpire’s award “shall be final and binding” and that Selective “shall
pay no more than Five Hundred Thousand Dollars[.]”
Following a hearing, the umpire awarded Valle Vista $444,455.48 as
compensation for its roof damage plus $172,132.31 in prejudgment interest. Selective
made a payment to Valle Vista which, along with a previous payment for roof damage,
came to $500,000.00. Valle Vista failed to dismiss the lawsuit as provided for in the
Agreement and objected to Selective’s payment. In December of 2012, Selective filed a
motion to compel dismissal of the lawsuit, a motion that was ultimately granted. Valle
Vista contends that the trial court erred in allegedly overturning the umpire’s award and
in concluding that Selective complied with the terms of the Agreement. Concluding that
the trial court committed no error, we affirm.
2 FACTS AND PROCEDURAL HISTORY
On or about April 16, 2006, Valle Vista suffered extensive hail damage to its
property, damages covered under its insurance policy (“the Policy”) with Selective. At
some point in 2008, the parties submitted the claim to an appraisal process, as provided
for in the Policy. On July 9, 2009, the umpire issued its award finding, in part, that
Selective owed Valle Vista $80,132.00 for roof repair. Also on July 9, 2009, Valle Vista
sued Selective, alleging that Selective had not honored the terms of the Policy and had
failed to negotiate a settlement in good faith and that the umpire had ordered payment for
actual cash value and not replacement cost, as provided for in the Policy.
On August 19, 2011, Valle Vista and Selective entered into the Agreement, which,
inter alia, contained a new appraisal procedure for Valle Vista’s roof damage:
3. Appraisal Procedure. Valle Vista and Selective agree to conduct a second appraisal to determine any amount due and owing Valle Vista under Selective’s Policy for the damaged roof in the Lawsuit. The appraisal procedure shall be conducted according to the following provisions: a. Each party may submit two (2) names of prospective umpires to William Baten of Van Winkle Baten Dispute Resolution in Indianapolis, Indiana. Mr. Baten will select a single umpire either from the parties’ suggestions or of his own choosing. The umpire’s award will be binding. The umpire’s costs will be split evenly by the parties. All other costs during the appraisal process will be paid by the respective parties. b. The umpire will address two issues: 1. The nature and extent of the damage to Valle Vista’s tile roof caused by the storm. 2. The amount which must be paid by Selective for such damage under the terms and conditions of the Policy. c. The only issues before the umpire will be the above issues and not bad faith or the replacement cost of Valle Vista’s HVAC units. The Policy is stipulated into evidence. ….
3 i. The parties agree that the appraisal procedure shall be subject to a high-low agreement under which, regardless of the umpire’s award, Valle Vista shall receive no less than One Hundred Twenty-five Thousand Dollars ($125,000.00) (which amount shall include any amount previously paid Valle Vista by Selective for roof damage) and Selective shall pay no more than Five Hundred Thousand Dollars ($500,000.00) (which amount shall include any amount previously paid to Valle Vista by Selective for roof damage). j. Payment of any amount due under this Agreement shall be made within fifteen (15) days of the umpire’s award. k. The amount of the umpire’s award shall be final and binding. …. 4. Withdrawal and Release. In exchange for the consideration provided in paragraph 1 of this Agreement entitled “Up-Front Payment to Valle Vista” and for any payment for the roof’s damage pursuant to the appraisal procedure provided in paragraph 3 of this Agreement entitled “Appraisal Procedure”: a. Valle Vista agrees that it will dismiss the Lawsuit with prejudice within three (3) business days of receiving payments under paragraphs 1 and 3 above.
Appellant’s App. pp. 786-88.
On November 20, 2012, the umpire issued the following:
AWARD The undersigned umpire does hereby render the following full and final award: … I find that Valle Vista is entitled to replacement cost for its roof, and it is entitled to the following relief: 1. Payment of the full replacement cost of its roof in the amount of $444,445.48. 2. Prejudgment interest at the rate of 8% per anum, from December 18, 2007, in the amount of $172,132.31.
Appellant’s App. p. 918. The umpire’s total award was therefore $616,587.79. On
December 3, 2012, Selective paid Valle Vista $500,000.00 (minus the $80,132.00 it had
already paid). Valle Vista did not dismiss the lawsuit but, instead, wrote Selective’s
counsel requesting the balance of the umpire’s award.
4 On December 21, 2012, Selective filed a motion to compel dismissal of the
lawsuit pursuant to the Agreement, which motion was granted on April 2, 2013.
Meanwhile, on January 3, 2013, Valle Vista petitioned the umpire to declare that
prejudgment interest was not subject to the $500,000.00 limit in the Agreement. On
April 30, 2013, the umpire issued a new ruling finding that prejudgment interest was not
subject to the $500.000.00 limit because it was a “collateral litigation expense” and that
Selective was therefore obligated to pay the entire amount of the umpire’s award.
Appellant’s App. p. 190. On May 2, 2013, Valle Vista filed a motion to correct error,
which the trial court denied.
DISCUSSION AND DECISION
Whether the Trial Court Erred in Granting Selective’s Motion to Compel Dismissal
Selective contends that it complied with the Agreement and that Valle Vista was
therefore obligated to dismiss its lawsuit with prejudice within three business days of
receiving payment, as provided for in the Agreement. It is well-settled that in the
absence of fraud or mistake a settlement is as binding and conclusive of the parties’ rights
and obligations as a judgment on the merits. Burke v. Middlesworth, 92 Ind. App. 394,
399, 174 N.E.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 17 2014, 6:26 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
GEORGE M. PLEWS DONNA H. FISHER COLIN E. CONNOR Smith Fisher Maas & Howard, P.C. Plews Shadley Racher & Braun LLP Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
VALLE VISTA LIMITED, LLC, ) ) Appellant/Plaintiff, ) ) vs. ) No. 41A05-1309-PL-481 ) SELECTIVE INSURANCE COMPANY ) OF SOUTH CAROLINA, ) ) Appellee/Defendant. )
APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Kevin M. Barton, Judge Cause No. 41D01-1011-PL-84
June 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
Appellant/Plaintiff Valle Vista Limited, LLC, operates a country club in
Greenwood and was insured by Appellee/Defendant Selective Insurance Company of
South Carolina when the club’s roof and rooftop HVAC units were damaged in a hail
storm in April of 2006. Valle Vista and Selective could not agree on the amount of the
damage and so submitted the claim to appraisal. After this appraisal, Valle Vista filed
suit, seeking to set aside the appraiser’s award. In August of 2011, the parties reached a
negotiated settlement of the lawsuit (“the Agreement”), which provided for a second
appraisal by an umpire of the damage to Valle Vista’s tile roof. The agreement provided,
inter alia, that the umpire’s award “shall be final and binding” and that Selective “shall
pay no more than Five Hundred Thousand Dollars[.]”
Following a hearing, the umpire awarded Valle Vista $444,455.48 as
compensation for its roof damage plus $172,132.31 in prejudgment interest. Selective
made a payment to Valle Vista which, along with a previous payment for roof damage,
came to $500,000.00. Valle Vista failed to dismiss the lawsuit as provided for in the
Agreement and objected to Selective’s payment. In December of 2012, Selective filed a
motion to compel dismissal of the lawsuit, a motion that was ultimately granted. Valle
Vista contends that the trial court erred in allegedly overturning the umpire’s award and
in concluding that Selective complied with the terms of the Agreement. Concluding that
the trial court committed no error, we affirm.
2 FACTS AND PROCEDURAL HISTORY
On or about April 16, 2006, Valle Vista suffered extensive hail damage to its
property, damages covered under its insurance policy (“the Policy”) with Selective. At
some point in 2008, the parties submitted the claim to an appraisal process, as provided
for in the Policy. On July 9, 2009, the umpire issued its award finding, in part, that
Selective owed Valle Vista $80,132.00 for roof repair. Also on July 9, 2009, Valle Vista
sued Selective, alleging that Selective had not honored the terms of the Policy and had
failed to negotiate a settlement in good faith and that the umpire had ordered payment for
actual cash value and not replacement cost, as provided for in the Policy.
On August 19, 2011, Valle Vista and Selective entered into the Agreement, which,
inter alia, contained a new appraisal procedure for Valle Vista’s roof damage:
3. Appraisal Procedure. Valle Vista and Selective agree to conduct a second appraisal to determine any amount due and owing Valle Vista under Selective’s Policy for the damaged roof in the Lawsuit. The appraisal procedure shall be conducted according to the following provisions: a. Each party may submit two (2) names of prospective umpires to William Baten of Van Winkle Baten Dispute Resolution in Indianapolis, Indiana. Mr. Baten will select a single umpire either from the parties’ suggestions or of his own choosing. The umpire’s award will be binding. The umpire’s costs will be split evenly by the parties. All other costs during the appraisal process will be paid by the respective parties. b. The umpire will address two issues: 1. The nature and extent of the damage to Valle Vista’s tile roof caused by the storm. 2. The amount which must be paid by Selective for such damage under the terms and conditions of the Policy. c. The only issues before the umpire will be the above issues and not bad faith or the replacement cost of Valle Vista’s HVAC units. The Policy is stipulated into evidence. ….
3 i. The parties agree that the appraisal procedure shall be subject to a high-low agreement under which, regardless of the umpire’s award, Valle Vista shall receive no less than One Hundred Twenty-five Thousand Dollars ($125,000.00) (which amount shall include any amount previously paid Valle Vista by Selective for roof damage) and Selective shall pay no more than Five Hundred Thousand Dollars ($500,000.00) (which amount shall include any amount previously paid to Valle Vista by Selective for roof damage). j. Payment of any amount due under this Agreement shall be made within fifteen (15) days of the umpire’s award. k. The amount of the umpire’s award shall be final and binding. …. 4. Withdrawal and Release. In exchange for the consideration provided in paragraph 1 of this Agreement entitled “Up-Front Payment to Valle Vista” and for any payment for the roof’s damage pursuant to the appraisal procedure provided in paragraph 3 of this Agreement entitled “Appraisal Procedure”: a. Valle Vista agrees that it will dismiss the Lawsuit with prejudice within three (3) business days of receiving payments under paragraphs 1 and 3 above.
Appellant’s App. pp. 786-88.
On November 20, 2012, the umpire issued the following:
AWARD The undersigned umpire does hereby render the following full and final award: … I find that Valle Vista is entitled to replacement cost for its roof, and it is entitled to the following relief: 1. Payment of the full replacement cost of its roof in the amount of $444,445.48. 2. Prejudgment interest at the rate of 8% per anum, from December 18, 2007, in the amount of $172,132.31.
Appellant’s App. p. 918. The umpire’s total award was therefore $616,587.79. On
December 3, 2012, Selective paid Valle Vista $500,000.00 (minus the $80,132.00 it had
already paid). Valle Vista did not dismiss the lawsuit but, instead, wrote Selective’s
counsel requesting the balance of the umpire’s award.
4 On December 21, 2012, Selective filed a motion to compel dismissal of the
lawsuit pursuant to the Agreement, which motion was granted on April 2, 2013.
Meanwhile, on January 3, 2013, Valle Vista petitioned the umpire to declare that
prejudgment interest was not subject to the $500,000.00 limit in the Agreement. On
April 30, 2013, the umpire issued a new ruling finding that prejudgment interest was not
subject to the $500.000.00 limit because it was a “collateral litigation expense” and that
Selective was therefore obligated to pay the entire amount of the umpire’s award.
Appellant’s App. p. 190. On May 2, 2013, Valle Vista filed a motion to correct error,
which the trial court denied.
DISCUSSION AND DECISION
Whether the Trial Court Erred in Granting Selective’s Motion to Compel Dismissal
Selective contends that it complied with the Agreement and that Valle Vista was
therefore obligated to dismiss its lawsuit with prejudice within three business days of
receiving payment, as provided for in the Agreement. It is well-settled that in the
absence of fraud or mistake a settlement is as binding and conclusive of the parties’ rights
and obligations as a judgment on the merits. Burke v. Middlesworth, 92 Ind. App. 394,
399, 174 N.E. 432, 433 (1930). If a party agrees to settle a pending action, but then
refuses to consummate his settlement agreement, the opposing party may obtain a
judgment enforcing the agreement from the court before which the action is pending.”
Brant Const. Co. v. Lumen Const. Co., 515 N.E.2d 868, 876 (Ind. Ct. App. 1988), trans.
denied. Although the parties differ on the proper standard of review, all seem to agree
5 that resolution of this appeal boils down to applying the terms of the Agreement to facts
that are not in dispute, which means that this court is required to interpret the Agreement
as a matter of law.
“Construction of settlement agreements is governed by contract law.” Ind. State
Highway Comm’n v. Curtis, 704 N.E.2d 1015, 1018 (Ind. 1998). “The first rule in the
interpretation of contracts is to give meaning and effect to the intention of the parties as
expressed in the language of the contract.” Stech v. Panel Mart, Inc., 434 N.E.2d 97, 100
(Ind. Ct. App. 1982). “In ascertaining the intention of the parties, a court must construe
the instrument as a whole, giving effect to every portion, if possible.” Id. “In
interpreting an unambiguous contract, a court gives effect to the parties’ intentions as
expressed in the four corners of the instrument, and clear, plain, and unambiguous terms
are conclusive of that intent.” Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 1142
(citing Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr. of Ft. Wayne, Inc.,
683 N.E.2d 243, 247 (Ind. Ct. App. 1997)). “Courts may not construe clear and
unambiguous provisions, nor may it add provisions not agreed upon by the parties.” Id.
(Ind. Ct. App. 2003) (citing Hyperbaric Oxygen Therapy Sys., 683 N.E.2d at 247-48).
However, it is well-settled that “[i]f the terms of a written contract are ambiguous, it is
the responsibility of the trier-of-fact to ascertain the facts necessary to construe the
contract.” Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d 396, 401 (Ind. Ct. App.
2007). “A contract is ambiguous only if reasonable persons would differ as to the
meaning of its terms.” Oxford Fin. Group, 795 N.E.2d at 1142 (citing Beam v. Wausau
Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002)).
6 As previously mentioned, the Agreement provided, in relevant part, as follows:
“The parties agree that the appraisal procedure shall be subject to a high-low agreement
under which, regardless of the umpire’s award, … Selective shall pay no more than Five
Hundred Thousand Dollars ($500,000.00) (which amount shall include any amount
previously paid to Valle Vista by Selective for roof damage).” Appellant’s App. p. 787
(emphases added). There is nothing ambiguous about this passage: The Agreement
clearly indicates that Selective shall pay Valle Vista no more than $500,000.00, with no
exceptions for prejudgment interest or anything else. Whether designated a “collateral
litigation expense” or part of the award proper, prejudgment interest must still be paid,
and the Agreement strictly limits the amount that Selective must pay. Because Selective
lived up to its end of the bargain, Valle Vista breached the Agreement by failing to
dismiss its lawsuit within three business days. The trial court did not err in entering
judgment enforcing the terms of the Agreement and dismissing Valle Vista’s lawsuit
against Selective.
We affirm the judgment of the trial court.
RILEY, J., and ROBB, J., concur.