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Herll v. Auto Owners Insurance Co.

United States District Court, D. Minnesota

January 6, 2016

Mark and Patricia Herll, Plaintiffs,
v.
Auto-Owners Insurance Company, Defendant.

          E. Curtis Roeder for Plaintiffs.

          Joseph F. Lulic for Defendant.

          AMENDED REPORT AND RECOMMENDATION

          FRANKLIN L. NOEL United States Magistrate Judge.

         THIS MATTER came before the undersigned United States Magistrate Judge on December 4, 2015 on Plaintiffs' and Defendant's cross-motions for summary judgment (ECF Nos. 5 and 24). The matter was referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. See Order, ECF Nos. 13 and 27. For the reasons set forth below, the Court recommends that both motions be GRANTED in part and DENIED in part.

         I. FINDINGS OF FACT

         Plaintiffs are homeowners who held an insurance policy (“the Policy”) with Defendant Auto-Owners. Roeder Decl. Ex. 1, ECF No. 10. Plaintiffs submitted a claim after a wind and hailstorm damaged their home. ECF No. 10, Ex. 12. After failing to agree on a claim amount, the parties submitted the claim for an appraisal pursuant to the policy. ECF No. 1, Ex. 1 at 49. The appraisal panel heard evidence from both parties and issued an appraisal award of $176, 208 on September 16, 2014. ECF No. 10, Ex. 2. The award outlined the losses as follows:

• Dwelling-all but front and right window related loss (hereinafter “dwelling”):
▪ $116, 208 replacement cost value
▪ $81, 345.60 actual cash value

         • Dwelling-front and right window related damage (hereinafter “front and right windows”)

▪ $60, 000 replacement cost value
▪ $42, 000 actual cash value

Id. Both parties were unclear whether the appraisal panel included damage to the front and right windows of the home as part of the award, and they requested clarification by email. Lulic Aff. Ex. 2, ECF No. 17. Although the record before the Court does not include any written response, Defendant claims that both parties were orally told that the front and right windows were not related to the same storm that caused damage to the Plaintiffs' dwelling. Plaintiffs dispute that they were ever given this clarification. In support of their position, Defendants submitted affidavits from James Stoops, a member of the appraisal panel, and Scott Moe, the umpire. Stoops Aff. ECF No. 15; Moe Aff. ECF No. 16.

         After the appraisal panel, Defendants paid to Plaintiffs $81, 345.60, the actual cash value for damages to the dwelling, not including the damages to the front and right windows. ECF No. 17, Ex. 6. Thereafter, Plaintiffs brought suit in Dakota County District Court. See Compl., ECF No. 1-1. Defendants removed the case on July 23, 2015. Not. of Removal, ECF No. 1. Plaintiffs now move for summary judgment seeking: (1) confirmation of the appraisal award in its entirety which they define as $116, 208 for dwelling damages and $42, 000 for the actual cash value of the right and front windows pursuant to Minn. Stat. §§ 572B.01-.30; (2) pre-award interest from September 13, 2013 to September 19, 2014 pursuant to Minn. Stat. § 549.09; (3) post-award interest from September 20, 2014 to present pursuant to Minn. Stat. § 549.09; and (4) costs and disbursements incurred in connection with both the appraisal hearing and in bringing this action pursuant to Minn. ...


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