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Kesic v. American Family Mutual Insurance Co.

United States District Court, N.D. Indiana, Hammond Division

May 31, 2019

MILAN KESIC and DANIELLE KESIC, Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         In this litigation, the Plaintiffs, Milan and Danielle Kesic, allege that the Defendant, American Family Mutual Insurance Company, breached the homeowners' insurance policy covering their residence by failing to adequately respond when the Plaintiffs made a claim under the policy. This matter is before the Court on the Defendant's Partial Motion for Summary Judgment [ECF No. 57], and all related briefing.

         FACTUAL BACKGROUND

         On February 19, 2014, Plaintiff Milan Kesic noticed that water was pouring into his custom-designed office in his residence, causing damage throughout. That same day, the Plaintiffs reported the damage due to ice damming and resulting water leakage to the Defendant.

         A. The Policy

         When the Plaintiffs' home was damaged, it was covered by a homeowners' insurance policy with the Defendant, specifically policy number 13-DA5523-01 (“Policy”).

         The Policy provides that the “Loss Value Determination” for “Buildings Which Have a Permanent Foundation and Roof Insured at 100% of Replacement Cost, ” will be the smallest of:

“(a) the cost to replace the damaged building with like construction for similar use on the same premises;
(b) the amount actually and necessarily spent for repair of the damaged portion or replacement of the damaged building; or
(c) 120% of the limit applying to the damaged building.”

(Policy, Ex. F to Def.'s Mot. for Summ. J., Conditions - Section I, Gold Star Homeowners Amendatory Endorsement, p. 29, ECF No. 57-1).

         The Policy also provides for appraisal, by stating:

Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and disinterested appraiser within 20 days after receiving a written request from the other. The two appraisers will choose a competent and disinterested umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the insured premises is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree within a reasonable time, they will submit their differences to the umpire. Written agreement signed by any two of these three will set the amount of the loss. Each appraiser will be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire will be paid equally by you and us.

(Policy, Ex. F to Def.'s Mot. for Summ. J., “Appraisal condition, ” Conditions - Section I, Indiana Amendatory Homeowners ...


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