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Herll v. Auto-Owners Insurance Co.

United States Court of Appeals, Eighth Circuit

January 5, 2018

Mark Herll; Patricia Herll, Plaintiffs - Appellees,
v.
Auto-Owners Insurance Company, Defendant-Appellant.

          Submitted: February 7, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          COLLOTON, CIRCUIT JUDGE.

         Auto-Owners Insurance Company appeals the district court's order granting summary judgment in favor of its insured, Mark and Patricia Herll, in a dispute concerning damage from a hailstorm to windows in the Herlls' home. The parties could not agree on a loss amount for the damage, so they submitted the loss determination to an appraisal panel in accordance with the policy. The panel issued an appraisal award, but the parties then disputed the meaning of the award. The district court ruled that the appraisal award unambiguously favors the Herlls' interpretation, but we conclude that the award is ambiguous, and that the court should have returned the matter to the appraisal panel for clarification.

         After the Herlls' home was damaged in a wind and hailstorm, they submitted a claim to Auto-Owners. When a dispute arose concerning the amount of loss, the parties submitted the loss determination to a three-member appraisal panel in accordance with the Herlls' policy. That policy provides in pertinent part:

Each party will select an appraiser and notify the other of the appraiser's identity within 20 days after the [written] demand [for an appraisal] is received. The appraisers will select a competent and impartial umpire. . . . The appraisers shall then appraise the loss, stating separately the actual cash value and loss to each item. If the appraisers submit a written report of an agreement to [Auto-Owners], the amount agreed upon shall be the actual cash value or amount of loss. If they cannot agree, they will submit their differences to the umpire. A written award by two will determine the actual cash value or amount of loss.

         The panel received evidence and issued an "Appraisal Award."

         The award is a one-page typed form with spaces for handwritten entries. The top portion of the form sets forth the name of the insurance company, the insured, the property affected, and the date and cause of loss. Written in the space for "Cause" is "storm-wind & hail" and on the line for "Loss Date" is "8-26-2013." The parties agree that the date is mistaken, and that the correct loss date is August 6, 2013.

         The next part of the form sets forth three columns to be completed by the appraisers: "Item, " "Loss Replacement Cost, " and "Loss Actual Cash Value." The handwritten award lists two items. The first is "Dwelling-All but front & right window related loss." For this item, the form states a replacement cost value of $116, 208 and an actual cash value of $81, 345.60.

         The second item is described as follows: "Dwelling-front & right window related loss an additional. We question the # of losses here." For this item, the form lists a replacement cost value of $60, 000 and an actual cash value of $42, 000.

         Below the blanks for the "Loss Replacement Cost" and "Loss Actual Cash Value" corresponding to each listed item, the form includes blanks for total amounts. To the left of these blanks is the pre-printed word "ALL." In the two blanks corresponding to "ALL, " the appraisers wrote "$ see above" and "$ see above."

         Under the portion of the form where the amounts are listed, there is a space designated for "CLARIFICATIONS IF ANY." In that space, the award states in handwriting: "GROSS LOSS." At the bottom of the award form is a typed certification stating: "We certify that we have conscientiously and impartially performed the duties assigned to us in accord with the appraisal provisions of the policy and do hereby award the amounts established above for the described loss." The award is signed by one of the two appraisers and the umpire.

         Auto-Owners promptly issued a check to the Herlls for the actual cash value of the first item listed, less a deductible amount, and that portion of the award is not in dispute. As to the second item, however, both parties promptly requested clarification from the appraisal panel about whether the ...


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