MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               FILED
Memorandum Decision shall not be regarded as                         May 16 2017, 9:21 am
precedent or cited before any court except for the purpose
of establishing the defense of res judicata, collateral                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                       ATTORNEY FOR APPELLEE
Kevin W. Marshall                                            Matthew S. McLean
Hobart, Indiana                                              Leahy, Eisenberg & Fraenkel, Ltd.
                                                             Schererville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Mircea Garba,                                                May 16, 2017

Appellant-Plaintiff,                                         Court of Appeals Case No.
                                                             75A04-1611-PL-2546
        v.                                                   Appeal from the Starke Circuit Court
                                                             The Honorable Kim Hall, Judge
West Bend Mutual Insurance                                   Trial Court Cause No.
Company,                                                     75C01-1510-PL-35

Appellee-Defendant.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A04-1611-PL-2546 | May 16, 2017           Page 1 of 7
                                          Case Summary

[1]   On October 11, 2013, a house owned by Appellant-Plaintiff Mircea Garba (“the

      House”) and insured by Appellee-Defendant West Bend Mutual Insurance

      Company was seriously damaged in a fire. Garba filed a claim with West

      Bend, and, when the parties could not agree on the amount of the loss, the

      matter was evaluated pursuant to an appraisal procedure outlined in the

      insurance policy (“the Policy”). The appraisal procedure produced an award of

      $360,190.07, slightly less than the Policy limit of $360,500.00, which was then

      paid to Garba. Garba elected not to repair the House and, instead, purchased a

      new home in Arizona for $420,000.00.


[2]   In 2015, Garba filed suit against West Bend, claiming that he was entitled to an

      additional $59,000.00 from West Bend pursuant to the Policy’s Loss Settlement

      Provision, which, at least under certain circumstances, allows for a payment of

      up to 125% of the Policy limit. Both parties moved for summary judgment, and

      the trial court entered summary judgment in favor of West Bend. Garba

      contends that the trial court abused its discretion in denying its motion for

      summary judgment, arguing that he was entitled to the additional $59,000.00

      pursuant to the Policy. West Bend contends that Garba’s payment is limited to

      the Policy limit of $360,500.00 because he elected not to repair the House.

      Because we agree with West Bend, we affirm.



                            Facts and Procedural History
      Court of Appeals of Indiana | Memorandum Decision 75A04-1611-PL-2546 | May 16, 2017   Page 2 of 7
[3]   On October 11, 2013, the House, insured at the time by West Bend and located

      in Knox, Indiana, was damaged by a fire. The Policy has a limit of $360,500.00

      and contains the following Loss Settlement Provision:


              1. For Coverage A - Dwelling, “we” will pay the cost to repair
                 or replace using building materials and methods which are
                 less costly and functionally equivalent to obsolete, antique, or
                 custom construction materials and methods used in the
                 original construction of the building, to place the property in
                 habitable condition. The type of building materials used will
                 be agreed upon by “you” and “us”. If “you” and “we”
                 cannot agree, settlement will be based on an actual cash value
                 basis with deduction for depreciation.
                   Any payment will not exceed the least of the following
                   amounts:
                   a. The repair cost of that part of the dwelling damaged;
                   b. The amount actually and necessarily spent to repair the
                      damaged dwelling; or
                   c. 125% of the Coverage A, - Dwelling limit shown on the
                      Homeowners Declarations,
                   If “you” decide not to repair the damaged property,
                   settlement will be on an actual cash value basis not to exceed
                   the Coverage A - Dwelling limit of liability.
      Appellee’s App. Vol. II p. 143.


[4]   The Policy also contains the Appraisal Provision:


              E.      Appraisal
              If you and we fail to agree on the amount of loss, either may
              demand an appraisal of the loss. In this event, each party will
              choose a competent and impartial appraiser within 20 days after
              receiving a written request from the other. The two appraisers

      Court of Appeals of Indiana | Memorandum Decision 75A04-1611-PL-2546 | May 16, 2017   Page 3 of 7
              will choose an umpire. If they cannot agree upon an umpire
              within 15 days, you or we may request that the choice be made
              by a judge of a court of record in the state where the “residence
              premises” is located. The appraisers will separately set the
              amount of loss. If the appraisers submit a written report of an
              agreement to us, the amount agreed upon will be the amount of
              loss. If they fail to agree, they will submit their differences to the
              umpire. A decision agreed to by any two will set the amount of
              loss.
      Appellee’s App. Vol. II p. 115.


[5]   Garba submitted a claim pursuant to the Policy, and because the parties were

      unable to agree upon the amount of the loss, he petitioned for an appraisal in

      Lake Superior Court. Garba’s appraiser determined that replacement cost for

      the House was $393,190.07 with an actual cash value loss of $294,892.57. West

      Bend’s appraiser determined a replacement cost for the House of $331,851.83

      with an actual cash value loss of $130,259.00. Garba’s appraiser and the

      umpire eventually agreed on an appraisal award for the House of $360,190.07,

      which West Bend then paid to Garba. As it happened, Garba elected not to

      repair the House, instead purchasing another house in Arizona for $420,000.00.


[6]   On October 7, 2015, Garba filed suit against West Bend, contending that it

      breached the Policy by failing to pay him the full cost of his new home in

      Arizona and also failed to act in good faith. On March 3, 2016, West Bend

      moved for summary judgment, arguing that the amount of loss determined

      pursuant to the Appraisal Provision determined its liability. On June 8, 2016,

      Garba moved for summary judgment, arguing that the Loss Settlement

      Provision entitled him to an additional $59,809.93 because the new home that

      Court of Appeals of Indiana | Memorandum Decision 75A04-1611-PL-2546 | May 16, 2017   Page 4 of 7
      replaced his damaged home cost $420,000.00. On October 11, 2016, the trial

      court entered summary judgment in favor of West Bend and denied Garba’s

      summary judgment motion.


                                 Discussion and Decision

[7]           When reviewing a grant or denial of a motion for summary
              judgment our standard of review is the same as it is for the trial
              court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The
              moving party “bears the initial burden of making a prima facie
              showing that there are no genuine issues of material fact and that
              it is entitled to judgment as a matter of law.” Gill v. Evansville
              Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012).
              Summary judgment is improper if the movant fails to carry its
              burden, but if it succeeds, then the nonmoving party must come
              forward with evidence establishing the existence of a genuine
              issue of material fact. Id. In determining whether summary
              judgment is proper, the reviewing court considers only the
              evidentiary matter the parties have specifically designated to the
              trial court. See Ind. Trial R. 56(C), (H). We construe all factual
              inferences in the non-moving party’s favor and resolve all doubts
              as to the existence of a material issue against the moving party.
              Plonski, 930 N.E.2d at 5. The fact that the parties have filed
              cross-motions for summary judgment does not alter our standard
              for review, as we consider each motion separately to determine
              whether the moving party is entitled to judgment as a matter of
              law. Hardy v. Hardy, 963 N.E.2d 470, 473 (Ind. 2012).
      Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).


[8]   This case requires us to construe the language of the Policy, which is, of course,

      an insurance contract:



      Court of Appeals of Indiana | Memorandum Decision 75A04-1611-PL-2546 | May 16, 2017   Page 5 of 7
              [B]ecause the interpretation of a contract is a matter of law, cases
              involving the interpretation of insurance contracts are
              particularly appropriate for summary judgment.
              Moreover, provisions of insurance contracts are subject to the
              same rules of construction as other contracts. We interpret an
              insurance policy with the goal of ascertaining and enforcing the
              parties’ intent as revealed by the insurance contract. In
              accomplishing that goal we must construe the insurance policy as
              a whole, rather than considering individual words, phrases, or
              paragraphs. If the contract language is clear and unambiguous, it
              should be given its plain and ordinary meaning.
              Additionally, we must accept an interpretation of the contract
              language that harmonizes the provision rather than one which
              supports a conflicting version of the provisions. Policy terms are
              interpreted from the perspective of an ordinary policyholder of
              average intelligence. If reasonably intelligent persons honestly
              may differ as to the meaning of the policy language, the policy is
              ambiguous. However, an ambiguity does not exist merely
              because the parties proffer differing interpretations of the policy
              language.
      Wright v. Am. States Ins. Co., 765 N.E.2d 690, 692-93 (Ind. Ct. App. 2002)

      (citations omitted).


[9]   Garba argues that the appraisal award of $360,190.07 does not limit West

      Bend’s liability and that, pursuant to the Loss Settlement Provision, he is

      entitled to a settlement of up to 125% of the Policy’s limit, or up to

      approximately $450,000.00. We need not address the question of whether the

      appraisal award limits West Bend’s liability, however, because Garba elected

      not to repair the House. As the Loss Settlement Provision plainly states, “[i]f

      ‘you’ decide not to repair the damaged property, settlement will be on an actual

      cash value basis not to exceed the Coverage A - Dwelling limit of liability.”

      Court of Appeals of Indiana | Memorandum Decision 75A04-1611-PL-2546 | May 16, 2017   Page 6 of 7
       Appellee’s App. Vol. II p. 143 (emphasis added). Garba did not repair the

       House, thereby capping West Bend’s liability at the Policy limit of

       $360,500.00.1 Consequently, the trial court did not err in entering summary

       judgment in favor of West Bend.


[10]   We affirm the judgment of the trial court.


       Robb, J., and Barnes, J., concur.




       1
         Garba does not specifically claim that he is entitled to the $309.93 difference between the appraisal award
       and the Policy limit.

       Court of Appeals of Indiana | Memorandum Decision 75A04-1611-PL-2546 | May 16, 2017                Page 7 of 7
