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Philadelphia Indemnity Ins. Co. v. WE Pebble Point

United States District Court, S.D. Indiana, Indianapolis Division

September 3, 2014

PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff,
v.
WE PEBBLE POINT, Defendant

For PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff, Counter Defendant: John Patrick Schomaker, SMITH ROLFES & SKAVDAHL CO, L.P.A., Cincinnati, OH.

For WE PEBBLE POINT, Defendant, Counter Claimant: Eric S. Pavlack, PAVLACK LAW LLC, Indianapolis, IN; Phillip N. Sanov, MERLIN LAW GROUP, P.A., Houston, TX.

ORDER ON DEFENDANT'S MOTION TO DISMISS

SARAH EVANS BARKER, United States District Judge.

This cause is before the Court on Defendant WE Pebble Point, LLC's Motion to

Page 814

Dismiss, or in the Alternative, to Stay Proceedings [Docket No. 8], filed on November 11, 2013. For the reasons set forth below, the motion is GRANTED.

Legal and Factual Background

Plaintiff Philadelphia Indemnity Insurance Company (" PIIC" ) is, as suggested by its name, an insurance company headquartered in Pennsylvania. Compl. ¶ 1. Defendant, WE Pebble Point, LLC (" Pebble Point" ), is the owner and operator of the Pebble Point apartment complex located at 3030 Pebble Point Drive in Indianapolis, Indiana. Id. at ¶ 2. PIIC issued Pebble Point a first-party property insurance policy (" the policy" ) for the Pebble Point complex for the period November 22, 2011 to November 22, 2012, with the policy number PHPK795919. Id. at ¶ 6.[1]

The policy states that PIIC will pay for any damage caused by " covered causes of loss," which include " windstorm or hail" and " water damage." Pl.'s Resp. 6 (citing Pl.'s Exs. 1, 2). The policy also specifically excludes from the covered causes of loss any loss caused by " wear and tear" or " rust, corrosion, fungus, decay, deterioration, spoilage, contamination, hidden or latent defect or any quality in property that causes it to damage or destroy itself." It further recites that coverage does not extend to loss caused by inadequate or defective: " design, specification, workmanship, repair, construction, renovation, remodeling, grading, compaction . . . [or] maintenance." Pl.'s Resp. 5.

The policy also contains an " appraisal clause," which specifies as follows:

2. Appraisal
If we and you disagree on the value of the property or the amount of " loss", either may make a written demand for an appraisal of the " loss" . In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and the amount of " loss" . If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.
If there is an appraisal, we will still retain our right to deny the claim.

Compl. ¶ 20; Pl.'s Ex. 1.

On December 2, 2012, Pebble Point submitted a claim under the policy for roof damage to the complex. According to Pebble Point's claim, the roof had suffered extensive damage on October 29, 2012, when the remnants of Hurricane Sandy passed through Indianapolis, bringing with them high winds. Id. at ¶ ¶ 7-8. Inspectors from PIIC's contractor, Cunningham Lindsey, and Pebble Point's contractor, Echo Construction, conducted an initial inspection of the damaged roofs on February 13, 2013. Pl.'s Resp. 3. PIIC then hired the Rimkus Consulting Group (" Rimkus" ) to conduct a further inspection. Rimkus opined that there had not, in fact, been a high wind event in Indianapolis on ...


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