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Carye v. USAA Casualty

March 23, 2004

ROBERT J. CARYE, JR., ET AL., APPELLANTS,
v.
USAA CASUALTY, A TEXAS CORPORATION LICENSED TO DO BUSINESS IN THE STATE OF MINNESOTA, RESPONDENT.



Ramsey County District Court File No. C2-02-6483

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.

The opinion of the court was delivered by: Harten, Judge

Affirmed ; respondent's motion to strike denied; appellants' motion to strike granted in part and denied in part

UNPUBLISHED OPINION

The insurance policy issued by respondent insurer to appellants insureds provided that actions against the insurer must be started "within two years after the date of loss." Respondent was granted summary judgment because appellants delayed more than two years after the date of their claimed loss to bring this action. Because we see no genuine issue of material fact and no error in application of the law, we affirm.

FACTS

Appellants Robert and Linda Carye purchased homeowners' insurance from respondent USAA Casualty Insurance Co. for the period from 30 June 2000 to 30 June 2001. The insurance contract provided that an action against respondent must be started "within two years after the date of loss."

Appellants had not yet moved into the home when it was struck by a storm on 7 July 2000. On 10 July 2000, appellants reported damage to respondent, to wit: a tree hanging over the kitchen roof, trees and branches down, hail damage to the siding, and the kitchen light and one electrical outlet inoperable. On 11 July 2000, appellants discovered sewage backup in the basement, and on 13 July 2000 they discovered additional electrical outlets and light fixtures not working. However, they did not immediately report this damage, which they assumed resulted from the 7 July storm.

On 17 July 2000, respondent's adjuster inspected appellants' property, including the roof. He determined that the roof had not been damaged by hail. On 26 July 2000, respondent provided appellants with the adjuster's estimate for repairs and associated checks. On 31 July 2000, respondent sent appellants a corrected estimate of loss that stated, "Roof Inspected. No Wind, Hail, Or Tree Debris Damage Observed To Roof Shingles."

In August 2000, appellants discovered asphalt shingles on the ground. They contacted two roofers, who inspected the property and told them that the roof had sustained hail damage and required replacement; one roofer noted "hail hits from 7-7-00." On 11 August, appellants attempted to claim for hail damage to the roof. Respondent told them that the adjuster found no roof damage. Throughout August 2000 appellants made repeated unsuccessful attempts to recover from respondent costs of repairing the roof, the house, and the garage, of living expenses, and of tree removal. But, although invited to do so, they filed no other notices of claim and alleged no cause of damage other than the 7 July 2000 storm. Respondent told appellants they would receive no money for any damages not covered in the adjuster's report; appellants claim that respondent said, "[Y]ou don't like it, go and sue."

On 10 July 2002, appellants brought the instant action. Their complaint stated, among other things, that:

10. On or about July 7, 2000, [appellants] suffered a loss to their property.

11. On or after July 7, 2000, [appellants] suffered other losses to their property.

12. Sometime after July 7, 2000, [appellants] discovered damage to their ...


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