UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMIE MCNEAL,
Plaintiff-Appellant,

v.
                                                                  No. 97-2004
AETNA CASUALTY AND SURETY
COMPANY OF ILLINOIS,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Daniel E. Klein, Jr., Chief Magistrate Judge.
(CA-95-3787-WMN)

Submitted: September 29, 1998

Decided: October 26, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas F. DeCaro, Jr., Upper Marlboro, Maryland, for Appellant.
George E. Reede, Jr., V. Timothy Bambrick, NILES, BARTON &
WILMER, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jimmie McNeal appeals the magistrate judge's denial of his motion
to reopen this case.1 Because we find that McNeal has failed to estab-
lish good cause for reopening this action, we affirm the magistrate
judge's determination.

On January 30, 1994, a fire damaged a Sizzler restaurant owned
and operated by McNeal. McNeal submitted a claim under his insur-
ance policy to Aetna Casualty & Surety Company of Illinois
("Aetna"). Aetna adjusted this claim directly with the owner of the
real property, Edgewater Partnership ("Edgewater"),2 ultimately pay-
ing Edgewater $214,861.26. Dissatisfied with the manner in which his
claim was adjusted, McNeal initiated this suit against Aetna in the
Circuit Court for Baltimore City, Maryland, alleging breach of con-
tract and tortious failure to pay an insurance claim. Shortly thereafter,
Aetna removed the action to federal court, moved for partial summary
judgment, and demanded an appraisal pursuant to the terms of the
appraisal clause in the insurance policy.

In its motion for partial summary judgment, Aetna set forth three
arguments. First, Aetna contended that its adjustment with Edgewater,
rather than McNeal, was appropriate under the insurance policy. Sec-
ond, Aetna argued that McNeal was not entitled to recovery under the
policy for loss of income because McNeal's lease expired the day of
the fire. Finally, Aetna argued that Maryland does not recognize a
claim for tortious failure to pay an insurance claim. The district court
determined that Aetna's adjustment of the building loss with Edge-
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1 The parties consented to the jurisdiction of the magistrate judge pur-
suant to 28 U.S.C.A. § 636(c) (West 1993 & Supp. 1998).
2 Edgewater leased the property to Tenly Enterprises, Inc., who in turn
subleased the property to McNeal.

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water was indeed appropriate, but that McNeal would have the oppor-
tunity during the appraisal process to prove that he was entitled to
additional payment. Moreover, the district court found that, despite
the expiration of McNeal's lease, a genuine issue of material fact
existed as to whether McNeal had a reasonable expectation of remain-
ing in business after the fire. Finally, the district court agreed with
Aetna that Maryland does not recognize, as a cause of action, tortious
failure to pay an insurance claim.

Following the district court's rulings, the parties attended an
appraisal hearing. The parties' respective appraisers, as well as the
umpire, unanimously awarded McNeal $76,921. This award consti-
tuted payment for the following: $5000 for the building; $69,040 for
business and personal property; $81 for business income; $300 for
exterior signs; and $2500 for valuable papers.

Because Aetna agreed to honor the appraisal, the magistrate judge,
pursuant to District of Maryland Local Rule 111.1, issued a condi-
tional order dismissing the case. However, McNeal, apparently dissat-
isfied with the amount of the award, filed a timely motion to reopen
the case, arguing that the appraisers had "exceeded their powers." The
magistrate judge denied McNeal's motion, stating that he was "simply
trying to have the Court review the issues that were decided by the
panel [of appraisers] because [McNeal] does not agree with the result."3
McNeal appeals, claiming that the magistrate judge erred in denying
his motion to reopen the case.

Local Rule 111.1 provides, in pertinent part:

          When the Court has been notified by counsel that a case has
          been settled, the Court may enter an award dismissing the
          case and providing for the payment of costs. Such an order
          of dismissal shall be without prejudice to the right of a party
          to move for good cause to reopen the case within a time set
          by the Court if the settlement is not consummated.

Because McNeal filed a timely motion to reopen the case, the only
question is whether he has established the requisite"good cause."
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3 J.A. at 310.

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Under Maryland law, in the absence of fraud or mistake, an
appraisal award under the usual appraisal clause in a fire insurance
policy is binding and conclusive on the parties. 4 "The reason for this
doctrine is that an award by [appraisers] is the decision of a tribunal
which the parties themselves have created, and by whose judgment
they have mutually agreed to abide."5

In the instant case, McNeal claims that the appraisers "exceeded
their power" because they issued an award that did not conform to the
district court's rulings on Aetna's motion for partial summary judg-
ment. First, McNeal contends that the appraisers incorrectly deter-
mined that he did not own certain improvements on the premises,
"notwithstanding the language in the Memorandum of the District
Court in response to the motions for summary judgment, to the effect
that certain components of the building were owned by [McNeal] . . .
."6 Second, McNeal argues that the appraisers "exceeded their pow-
ers" in determining whether McNeal had the ability to remain in busi-
ness after the fire. McNeal claims that the district court had
determined that he could recover for lost income if he could prove
that he would have remained in business after the expiration of his
lease. He asserts that he is entitled to a determination on this point in
the district court. We disagree.

While the district court did address these issues in its Memorandum
and Order on Aetna's motion for partial summary judgment, the order
simply noted that McNeal would have the opportunity to present evi-
dence of loss for building damage and loss of income through the
appraisal process. McNeal presented such evidence and, indeed,
received awards for each category. Thus, McNeal has not alleged
errors which warrant overturning the appraisal award. Accordingly,
we hold that McNeal has failed to produce good cause for reopening
the case and we affirm the magistrate judge's order.
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4 Brethren Mut. Ins. Co. v. Filsinger, 458 A.2d 880, 883-84 (Md. Ct.
Spec. App. 1983) (citing Schreiber v. Pacific Coast Fire Ins. Co., 75
A.2d 108, 111 (Md. 1950)).
5 Schreiber, 75 A.2d at 112 (emphasis in original).

6 Appellant's Br. at 11.

                     4
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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