MEMORANDUM DECISION
                                                                 Feb 05 2015, 9:54 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Dennis F. Cantrell                                        William H. Walden
Tara Stapleton Lutes                                      Munster, Indiana
Cantrell Strenski & Mehringer, LLP
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

State Farm Fire and                                       February 5, 2015
Casualty Company,                                         Court of Appeals Cause No.
                                                          45A04-1407-PL-336
Appellant-Defendant,
                                                          Appeal from the Lake Superior
        v.                                                Court.
                                                          The Honorable Thomas W. Webber,
                                                          Sr., Senior Judge.
Scott C. Smith,                                           Cause No. 45D04-1206-PL-62
Appellee-Plaintiff




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 1 of 11
[1]   Scott Smith lost his house and personal property to a fire. Smith and his

      insurer, State Farm, disagreed about the value of his loss. Smith sued State

      Farm for breach of contract and the trial court ultimately entered judgment for

      Smith following two appraisals. Finding that the final appraisal, upon which

      judgment was entered, did not comply with the terms of the parties’ insurance

      contract, we reverse and remand.


                                                     Facts
[2]   On July 16, 2010, Smith’s Lake County residence caught fire and was destroyed

      for a total loss. State Farm insured Smith’s residence and personal property

      pursuant to a homeowner’s insurance policy (the Policy). Smith submitted an

      insurance claim, and State Farm eventually adjusted the loss and made

      payments to him pursuant to the Policy. Smith, however, disagreed with the

      amount of loss calculated by State Farm and requested that the claim be

      submitted to appraisal as set forth by the Policy:

              If you and we fail to agree on the amount of loss, either one can
              demand that the amount of loss be set by appraisal. If either makes a
              written demand for appraisal, each shall select a competent,
              disinterested appraiser. Each shall notify the other of the appraiser’s
              identity within 20 days of receipt of the written demand. The two
              appraisers shall then select a competent, impartial umpire. . . . The
              appraisers shall then set the amount of the loss. [If the appraisers
              agree,] the amount agreed upon shall be the amount of the loss. If the
              appraisers fail to agree within a reasonable time, they shall submit
              their differences to the umpire. Written agreement signed by any two
              of these three shall set the amount of the loss. . . .


      Appellant’s App. p. 53.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 2 of 11
[3]   Smith and State Farm each selected an appraiser. The two appraisers were

      unable to agree upon the amount of the loss, so the matter was submitted to an

      umpire. The umpire signed the First Appraisal Agreement, dated July 21,

      2011, which calculated Smith’s losses as follows:


             Recovery Cost of Dwelling:                                           $103,734
             Recovery Cost of Personal Property:                                  $69,000
             Recovery Cost of Debris Removal:                                     $5,340
             Recovery Cost of Landscaping:                                        $4,260
             Recovery Cost of Other Structures:                                   $1,294
             Recovery Cost of Additional Living Expenses:                         $31,110
             Total Loss:                                                          $214,838

      Id. at 7.


[4]   The Policy provides that until repair or replacement of a dwelling is completed,

      State Farm “will pay only the actual cash value at the time of the loss of the

      damaged part of the property[.]” Id. at 50. After repair or replacement is

      completed (which must occur within two years), the insured must notify State

      Farm within thirty days and submit certain documentation regarding the repair

      or replacement. At that time, State Farm will pay the balance of the loss. The

      same process is followed with respect to personal property. Additionally, the

      Policy defines Additional Living Expenses (ALE) as follows:

              When a Loss Insured causes the residence premises to become
              uninhabitable, we will cover the necessary increase in cost you incur to
              maintain your standard of living for up to 24 months. Our payment is
              limited to incurred costs for the shortest of: (a) the time required to
              repair or replace the premises; (b) the time required for your household
              to settle elsewhere; or (c) 24 months.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 3 of 11
      Id. at 43.


[5]   Pursuant to these Policy terms, after the First Appraisal Agreement was

      submitted, State Farm calculated the actual cash value of Smith’s dwelling and

      personal property and paid Smith those amounts. State Farm also paid Smith

      the full amount of ALE: $31,110. The total amount paid by State Farm to

      Smith for the actual cash value of the dwelling and personal property plus ALE

      was $148,524.78.


[6]   On June 6, 2012, Smith filed a lawsuit against State Farm alleging breach of

      contract. Specifically, Smith argued that State Farm should have paid him the

      full loss amount of $214,838. State Farm filed a motion for summary judgment

      on July 8, 2013, arguing that it had complied with the terms of the Policy and

      the First Appraisal Agreement. Smith filed a cross-motion for summary

      judgment. Following briefing and oral argument, the trial court denied both

      summary judgment motions. Specifically, the trial court held as follows:

              There is no disagreement between the parties for the amount paid by
              the defendant to the plaintiff [for ALE under] the policy. The
              defendant argues that it has paid the amount owing under the terms of
              said policy to the plaintiff and that therefore it [is] entitled to a
              judgment as a matter of law.


                                                       ***


              . . . [T]he dispute between the parties [is] that the plaintiff is arguing
              that he is entitled to replacement costs as determined by the appraisal
              agreement and the defendant argues that the plaintiff is only entitled to
              the actual cash value of the home and personal property pursuant to
              [the Policy].

      Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 4 of 11
                                                 ***


        The Court further finds that the defendant has notified the plaintiff that
        replacement costs were available to the plaintiff for the home and
        personal contents subject [to] the terms of this policy. The Court
        further finds that at the time of the hearing the plaintiff had not
        replaced his home either by buying or building another home . . . [or]
        has not notified the defendant of the same.


        Further, the fire which is the subject of this litigation took place on
        July 16, 2010, and by the terms of the policy replacement costs were
        only available to the plaintiff up to July 16, 2012. . . .


                                                 ***


        The Court further finds that . . . there is certainly a dispute as to the
        value of the home and the personal property. Further pursuant to the
        policy of insurance if there is a dispute as to the value of property, it is
        to be determined by appraisal.


        And while the appraisers . . . have made their appraisal of the dwelling
        and personal property, it was done on replacement value and not on
        actual cash value, and only actual cash value is available to the
        plaintiff at this time.


        . . . [T]here is a material issue of fact unresolved as to the actual cash
        value of the dwelling at the time of the fire and as to the cash value of
        personal property lost in said fire and that said values need to be
        determined by the appraisers and not by the defendant’s claims
        adjuster.


                                                 ***


        . . . [T]he plaintiff is no longer entitled to the replacement cost values
        as provided in the policy of insurance . . . .


Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 5 of 11
                                                          ***


                 Further, the parties should proceed to have the appraisers as selected
                 by the parties and the umpire as appointed by the [trial court]
                 reappraise the dwelling and personal property for their actual cash
                 value on the date of the fire, which values should be dispositive of this
                 cause of action.


      Id. at 223-30.


[7]   Following that order, Smith’s appraiser and the umpire conducted a second

      appraisal. State Farm’s appraiser did not take part or have input in that

      process. On January 13, 2014, the Second Appraisal Agreement was entered,

      calculating the actual cash value of Smith’s losses as follows:


                Dwelling Loss                      $93,360.06
                Personal Property Loss             $62,100.00
                Debris Removal Loss                $5,340.00
                Landscaping Loss                   $4,260.00
                Other Structures Loss              $1,394.00
                Loss of Use1                       $106,202.00
                Total                              $272,656.06

      Id. at 233. On January 21, 2014, Smith filed a motion for judgment on the

      Second Appraisal Agreement. On February 3, 2014, State Farm filed its

      response and asked that the trial court deny Smith’s motion and vacate the

      Second Appraisal Agreement.




      1
          The parties and trial court agree that “Loss of Use” is synonymous with ALE.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 6 of 11
[8]   On March 21, 2014, the trial court denied Smith’s motion. The trial court

      observed that while the summary judgment order found that the parties agreed

      regarding the amount of Smith’s ALE loss, the Second Appraisal Agreement

      increased the ALE by $75,092. Additionally, the trial court noted that it was

      undisputed that “the State Farm appraiser did not participate in the discussions

      or negotiations of the award.” Id. at 271. The trial court ordered that a third

      appraisal take place and that State Farm was to arrange for its appraiser to

      contact the umpire within the next fifteen days.


[9]   On March 25, 2014, Smith’s attorney sent a message to State Farm’s attorney

      stating that pursuant to the order, Smith’s appraiser “waits for your appraiser to

      call him[.]” Id. at 341. On April 4, 2014, State Farm’s appraiser called Smith’s

      appraiser and left him a voicemail message requesting a call back. On April 28

      or 29, 2014, Smith’s appraiser called State Farm’s appraiser to inform him that

      the appraisal process had already taken place—again, without input from State

      Farm. On April 29, 2014, the umpire and Smith’s appraiser signed the Third

      Appraisal Agreement, which calculated the actual cash value of Smith’s losses

      as follows:


             Dwelling Loss                     $93,360.06
             Personal Property Loss            $62,100.00
             Debris Removal Loss               $5,340.00
             Landscaping Loss                  $4,260.00
             Other Structures Loss             $1,394.00
             Loss of Use                       $113,689.68
             Total                             $280,143.74



      Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 7 of 11
       Id. at 275. On April 30, 2014, Smith filed a motion for judgment on the Third

       Appraisal Agreement. State Farm objected and requested that the trial court

       assign a new umpire. On May 20, 2014, the trial court granted Smith’s motion,

       ordering that State Farm was to pay Smith $280,143.74 minus any advance

       payments that had already been made. State Farm filed a motion to correct

       error, which the trial court denied on June 27, 2014. State Farm now appeals.


                                    Discussion and Decision
[10]   State Farm argues that the trial court erroneously denied its motion to correct

       error. We review a trial court’s ruling on a motion to correct error for an abuse

       of discretion, which occurs when the decision is against the logic and effect of

       the facts and circumstances before the court, as well as reasonable inferences

       that may be drawn therefrom. Knowledge A-Z, Inc. v. Sentry Ins., 891 N.E.2d

       581, 584 (Ind. Ct. App. 2008).


                      I. Validity of Third Appraisal Agreement
[11]   State Farm contends that the trial court erred by awarding judgment to Smith

       based upon the Third Appraisal Agreement. State Farm raises a number of

       arguments to support this contention, but there is one that we find dispositive,

       which is whether the third appraisal complied with the language of the Policy.

       We find that it did not.


[12]   The Policy sets forth the following process for an appraisal: (1) the insurer and

       the insured each select an appraiser; (2) the two appraisers—or, if they cannot

       agree, a trial court—select an umpire; (3) the two appraisers conduct their
       Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 8 of 11
       appraisals and arrive at a conclusion regarding the amount of the loss; (4) if the

       appraisers agree, then the amount of the loss is established; (5) if the appraisers

       disagree, then the matter is submitted to the umpire, who reaches his/her own

       conclusion regarding the amount of the loss; and (6) agreement by two of the

       three individuals establishes the amount of the loss. Appellant’s App. p. 53.

       An insurance agreement is a binding contract to which we apply standard rules

       of contract interpretation. Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473,

       482 (Ind. Ct. App. 2000).


[13]   In this case, the trial court concluded that a new appraisal was needed to

       determine the actual cash value, as opposed to the replacement cost, of Smith’s

       dwelling and personal property. Any new appraisal must be conducted

       pursuant to the terms of the Policy, which binds Smith and State Farm alike.

       Therefore, the appraisers selected by Smith and State Farm must both conduct

       their appraisals and arrive at their final calculation regarding the actual cash

       value of Smith’s losses. Then, if those amounts differ, the umpire will reach a

       conclusion. That process, for whatever reason, was not followed during the

       third appraisal. As that appraisal was not conducted pursuant to the terms of

       the binding contract in place in this case, it is invalid and should not have been

       relied upon by the trial court. Therefore, we reverse and remand with

       instructions that a new appraisal in compliance with Policy terms take place.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 9 of 11
                                           II. The ALE Award
[14]   Although we have reversed and remanded, we choose to address State Farm’s

       argument regarding ALE as the issue will necessarily arise again on remand.

       State Farm argues that the trial court erred by awarding an amount of ALE that

       is over three times higher than the amount represented by the First Appraisal

       Agreement. We agree.


[15]   The Policy language is clear: State Farm “will cover the necessary increase in

       cost you incur to maintain your standard of living for up to 24 months.”

       Appellant’s App. p. 43. Those twenty-four months expired for Smith on July

       16, 2012. To the extent the ALE award accounted for expenses incurred past

       that date, it was erroneous.


[16]   Furthermore, the trial court explicitly noted in its summary judgment order that

       the parties agreed regarding ALE costs, and the parties also agreed that State

       Farm had already paid the full amount—$31,110—to Smith. There is simply

       no basis in the record to require State Farm to pay more than this amount for

       Smith’s ALE costs.2 Regardless of what occurs on remand, under no

       circumstances is Smith entitled to a greater ALE award. Therefore, we reverse

       the trial court’s order to the extent that it awarded more than $31,110 for

       Smith’s ALE costs.




       2
         Unlike loss of dwelling and personal property, there is no replacement cost/actual cash value distinction
       regarding ALE that needs to be adjusted. Appellant’s App. p. 43.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015           Page 10 of 11
[17]   The judgment of the trial court is reversed and remanded.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1407-PL-336 | February 5, 2015   Page 11 of 11
