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Valley Forge Insurance Co. v. Hartford Iron & Metal Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

October 30, 2019

VALLEY FORGE INSURANCE COMPANY, Plaintiff/Counter-Defendant,
v.
HARTFORD IRON & METAL, INC., and ALAN B. GOLDBERG, d/b/a Hartford Iron & Metal, Defendants/Counter-Plaintiffs.

          OPINION AND ORDER

          William C. Lee, Judge

         This matter is before the Court for resolution of several pending motions. The motions, responses, and replies filed by the parties and considered by the Court include the following: 1) A motion for partial summary judgment or, in the alternative, for judgment on the pleadings filed by Defendant Alan Goldberg (ECF 796), to which Plaintiff Valley Forge filed a brief in opposition (ECF 817) and Goldberg filed a reply (ECF 820).[1] For the reasons explained below, this motion is DENIED.

         2) A motion for partial summary judgment filed by Defendant Hartford Iron & Metal (ECF 797), to which Valley Forge filed a response in opposition (ECF 813) and Hartford Iron filed a reply (ECF 822). For the reasons explained below, this motion is DENIED.

         3) A motion for partial summary judgment filed by Valley Forge (ECF 801), to which Hartford Iron filed a response in opposition (ECF 810), Goldberg filed a response in opposition (ECF 812)[2], and Valley Forge filed a reply (ECF 819). For the reasons explained below, the motion is GRANTED in part and DENIED AS MOOT in part.

         4) A motion to exclude evidence filed by Hartford Iron (ECF 825), to which Valley Forge filed a response in opposition (ECF 836) and Hartford Iron filed a reply (ECF 840). For the reasons explained below, the motion is DENIED AS MOOT.

         5) A motion to exclude evidence filed by Valley Forge (ECF 837), to which Hartford Iron filed a response in opposition (ECF 841) and Valley Forge filed a reply (ECF 842). For the reasons explained below, the motion is DENIED AS MOOT.

         STANDARD OF REVIEW

         Summary judgment is appropriate when the record shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See Id. at 255. However, neither the “mere existence of some alleged factual dispute between the parties, ” id. at 247, nor the existence of “some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).

         Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). “[Speculation and conjecture” also cannot defeat a motion for summary judgment. Cooney v. Casady, 735 F.3d 514, 519 (7th Cir. 2013). In addition, not all factual disputes will preclude the entry of summary judgment, only those that “could affect the outcome of the suit under governing law.” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (citation omitted).

         As the Seventh Circuit has explained many times and reiterated recently, a district court's task on summary judgment is as follows:

The following common refrains in summary judgment cases are important to recall in a case with so many factual recitations:
On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Rather, the court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. We must look therefore at the evidence as a jury might, construing the record in the light most favorable to the nonmovant and avoiding the temptation to decide which party's version of the facts is more likely true. As we have said many times, summary judgment cannot be used to resolve swearing contests between litigants.

Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (quoting Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). The case at bar will be tried to the bench. “Rule 56 makes no explicit distinction between jury and bench trials. However, the rule is designed as a pretrial mechanism for ‘asses[ing] the proof in order to see whether there is a genuine need for trial,' and whether there is such a need may depend on whether trial would be to the court or to a jury.” Stewart Title Guar. Co. v. Residential Title Servs., Inc., 607 F.Supp.2d 959, 961-62 (E.D. Wis. 2009) (citing William Schwarzer, Alan Hirsch & David Barrans, The Analysis & Decision of Summary Judgment Motions, 139 F.R.D. 441, 474 (1991) (in turn quoting Fed.R.Civ.P. 56(e) advisory committee's notes (amended 1963)). When evidentiary facts are in dispute, when the credibility of witnesses may be in issue or when conflicting evidence must be weighed, a full trial is necessary regardless of whether it is a bench or a jury trial. Id. “[T]he appropriate time for the Court to weigh the evidence and reach factual conclusions is at trial.” Thornton v. Hamilton Sundstrand Corp., 121 F.Supp.3d 819, 826-27 (N.D. Ill. 2014), aff'd sub nom. Thornton v. M7 Aerospace LP, 796 F.3d 757 (7th Cir. 2015) (citing Casey v. Uddeholm Corp., 32 F.3d 1094, 1099 (7th Cir.1994) (“[T]he appropriate proceedings for such fact-finding is a bench trial and not the disposition of a summary judgment motion.”)).

         DISCUSSION

         Valley Forge Insurance Company filed this lawsuit alleging that Hartford Iron & Metal and its owner, Alan Goldberg[3], breached a contract between the parties that was intended to resolve all disputes and claims between them. Those disputes and claims all arise from the environmental remediation of Hartford Iron's property, on which the company operates a scrap metal recycling business. Hartford Iron entered into an Agreed Order with the Indiana Department of Environmental Management in 2009 that mandated that Hartford Iron remediate pollution at its site, including remediation of PCB contamination and other pollutants that accumulated on the property over the course of decades of industrial use. Valley Forge, as Hartford Iron's insurer, agreed to pay for the remediation. The parties entered into their first Settlement Agreement on April 17, 2009, which set forth the parties' rights and obligations with respect to the remediation process intended to comply with the IDEM Agreed Order. Unfortunately, numerous disputes arose and the parties accused each other of breaching the 2009 Settlement Agreement. On December 4, 2012, the parties entered into a second Settlement Agreement, which again purported to resolve all disputes and claims between them at the time. Importantly, the 2012 Agreement came on the heels of state court litigation between these same parties, in which they litigated the issue of coverage, i.e., whether Valley Forge had to pony up to pay for the remediation pursuant to insurance policies issued to Goldberg and Hartford Iron over the years.[4] The 2012 Agreement, by its express terms, incorporated and supplemented the 2009 Agreement. Accordingly, the 2009 and 2012 Settlement Agreements together form the contract that is at issue now, and which each side accuses the other of breaching. In short, this is a breach of contract case; it is not an insurance coverage case. The Court concludes that the issues in this case require a trial (actually, two trials-one on the issue of which side breached the Settlement Agreements and a second on the damages to be awarded to the non-breaching party or parties).

         Valley Forge, in its original Complaint (ECF 1) and its first Amended Complaint (ECF 6), stated claims for breach of contract and “claims” for declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. § 2201. As this Court stated several years ago when ruling on a motion to dismiss Valley Forge's first Amended Complaint filed by Hartford Iron and Goldberg:

Valley Forge says Hartford Iron incorrectly describes Counts 1, 2, and 4 as breach of contract claims. Those claims, Valley Forge argues, seek declaratory judgments. The distinction is irrelevant: the counts seek a declaratory judgment that Hartford Iron breached the contract.[] A declaratory judgment that Hartford Iron breached the Settlement Agreement is only appropriate if Hartford Iron breached the contract
. . . .
Valley Forge claims Hartford Iron breached the contract when it “fail[ed] to cooperate with Valley Forge and August Mack, ”[5] “lock[ed] August Mack out of the Site and threaten[ed] to withhold access in the future, ” “generally attempt[ed] to control the defense and remediation of the Site, ” and “insist[ed] on the ongoing reimbursement of invoices for work performed by Mr. Shere.”

         Opinion and Order denying motion to dismiss (ECF 28), p. 8 and n. 2 (italics added). Judge Miller, who was presiding over the case at that time, went on to explain that:

To the extent, if any, Hartford Iron's arguments also challenge the corresponding declaratory judgment claims, the claims are equally plausible. A declaratory judgment allows a party that isn't certain of its rights to seek adjudication and avoid the accrual of damages rather than waiting for the damage to accrue.
NUCOR Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 577 (7th Cir. 1994). Declaratory relief is warranted if there is an actual, substantial controversy between parties with adverse legal interests and the controversy is sufficiently immediate and real. Id. Construing the facts in Valley Forge's favor, numerous disputes between the parties over the execution of the Settlement Agreement are immediate, real, and likely to continue.

Id., pp. 18-19. The controlling Complaint now is Valley Forge's Second Amended Complaint, filed on April 22, 2015 (ECF 74). The Second Amended Complaint, while presenting additional factual assertions and allegations of continuing breaches by Hartford Iron and Goldberg, does not change the claims presented or add new ones. This case is and always has been a breach of contract case, just as this Court observed in an order entered by Judge Miller on January 4, 2017 (ECF 609, p. 9, n. 1) (more on this order later). As such, Hartford Iron and Goldberg cannot maintain their counterclaim alleging a tort claim for bad faith insurance practices, and their argument that the policies issued to them over the years by Valley Forge provide for nearly $300 million in coverage is moot. This does not mean that Hartford Iron and Goldberg have no counterclaim at all: their assertions and allegations state a counterclaim for beach of contract, which is even Valley Forge's position. See Valley Forge Brief in Support of Motion for Partial Summary Judgment (ECF 802), p. 3 (the “parties [have] cross-claims for breach of contract[.]”). But no matter which side prevails on the issue of liability, the damages to be awarded to that prevailing side will be determined according to Indiana contract law, not on any theory about the amount of coverage available under the policies. This is because, as stated above and discussed below, this is a breach of contract case not an insurance coverage case. In the nearly six years since this case was filed, the parties have litigated it as if it were an insurance coverage case, and the Court followed them down that rabbit hole. But the parties settled all claims and disputes concerning insurance coverage when they entered into the 2009 and 2012 Settlement Agreements, the latter of which arose following an Indiana state court case in which the parties litigated the issue of whether Valley Forge had a duty to defend and indemnify Hartford Iron and Goldberg in the IDEM proceeding. The Court will explain its conclusions by addressing the motions for partial summary judgment in reverse order of their filing.

         I. Valley Forge's motion for partial summary judgment.

         Valley Forge moves for summary judgment on two issues: the dispute about the amount of coverage available under several policies issued to Goldberg or Hartford Iron, and the matter of Hartford Iron and Goldberg's counterclaim for bad faith. The two issues, while quite distinct, are both resolved based on the same reasoning: because this is a breach of contract case and not an insurance coverage case, damages will not determined based on any theory about an applicable indemnity cap under the policies; and for the same reason, the Defendants cannot maintain a counterclaim against Valley Forge for the tort of bad faith. Valley Forge's motion for partial summary judgment is moot as to the coverage issue because if Hartford Iron and Goldberg prevail on their counterclaim that Valley Forge breached the Settlement Agreements, they are entitled to damages stemming from that breach regardless of how much coverage the policies provided. Valley Forge's motion must be granted, however, on the issue of the Defendants' counterclaim for bad faith, since a bad faith insurance practices claim has no place in a breach of contract case (notwithstanding the fact that the contract at issue arose out of an insured/insurer relationship), and because Indiana does not recognize a cause of action for tortious breach of contract. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 936 (Ind. 2012) (“Indiana does not recognize a distinct cause of action for ‘tortious breach of contract.'”) (quoting Allstate Ins. Co. v. Hammond, 759 N.E.2d 1162, 1166 (Ind.Ct.App.2001)). At the same time, Valley Forge cannot argue during a damages trial, if one occurs, that the damages to which Hartford Iron and Goldberg would be entitled if they prevail are limited to the amount of coverage Valley Forge says is available (about $15 million) under the terms of the insurance policies and set out in the Settlement Agreements. If Hartford Iron and Goldberg prevail on their breach of contract counterclaim, they would be entitled to damages in an amount necessary to complete the environmental remediation pursuant to the terms set forth in the Settlement Agreements and the IDEM Agreed Order, as well as any other damages they can prove arose out of Valley Forge's breach, minus any offsets. If on the other hand Valley Forge prevails, it would be entitled to recover whatever amount of damages it can prove it incurred as a result of Defendants' breach, which also would not be tied to any indemnity cap in any insurance policy.

         A. The issue of the amount of coverage available under the policies, or the way any indemnity cap should be calculated, is moot.

         In its Second Amended Complaint, Valley Forge summarizes its case against Hartford Iron and Goldberg as follows:

Valley Forge seeks this Court's assistance in fulfilling its agreement to fund the remediation of a scrap metal recycling operation located at 209 S. Division Street, Hartford City, Indiana (the “Site”) operated by Hartford Iron & Metal, Inc. (“Hartford Iron”) on property owned by Alan B. Goldberg.
2. Valley Forge and Hartford Iron previously litigated their respective rights and duties pursuant to insurance contracts and, ultimately, entered into the most recent settlement agreement in December 2012 (“2012 Agreement”).[6]
3. In the 2012 Agreement, Valley Forge agreed to:
(A) fund the development and implementation of a remedial work plan for the Site to the satisfaction of regulators, up to the remaining limits of the insurance contracts, including the costs to implement and operate a storm water collection and treatment system that Hartford Iron and its former environmental consultant demanded;
(B) defend Hartford Iron against claims by the United States Environmental Protection Agency (“EPA”) and Indiana Department of Environmental Management (“IDEM”) regarding the Site, without reserving any rights to deny coverage; and (C) pay certain fines in connection with the Site on Hartford Iron's behalf.
4. As a result of its business decision to enter into the 2012 Agreement, Valley Forge has a strong financial incentive to remediate the Site as expeditiously and cost-effectively as possible, consistent with IDEM and EPA standards.
5. To date, Valley Forge has paid millions of dollars to remediate the Site, has retained and paid for multiple defense attorneys to represent Hartford Iron, and has fully satisfied Hartford Iron's obligations to pay extensive fines.
6. In exchange for Valley Forge's significant financial commitment in the 2012 Agreement, among other things, Hartford Iron agreed as follows:
(A) Valley Forge would have exclusive control the defense of the IDEM and EPA claims;
(B) the environmental consulting firm August Mack Environmental, Inc. (“August Mack”) would be responsible for carrying out the remediation of the Site, as approved by IDEM and EPA;
(C) Hartford Iron would cooperate with Valley Forge, defense counsel and August Mack to obtain approval for and to implement the most cost-effective remediation work plan for the Site; and (D) Valley Forge had a recognized interest in achieving a cost-effective remediation, which defense counsel was to represent.
7. Valley Forge anticipated that resolving the insurance coverage issues would permit the parties to move forward and achieve what should be their common goal: cost effectively remediating the Site, as envisioned in the 2012 Agreement.
8. Unfortunately, Hartford Iron has not honored its contractual duties to cooperate, and has taken steps to control, delay and hinder the remediation, despite its binding acknowledgment in the 2012 Agreement that Valley Forge has the right to control the remediation.

         Second Amended Complaint (ECF 74), pp. 1-3 (italics added). Later in the Complaint, addressing the 2012 Settlement Agreement, Valley Forge states as follows:

42. On or about October 27, 2011 Hartford Iron sued Valley Forge in a case captioned Hartford Iron & Metal, Inc. v. Valley Forge Insurance Co. et. al., No. 05C01-1110- M1-000322, in the Circuit Court of Blackford County, Indiana (the “Coverage Litigation”). . . .
45. On or about December 6, 2012 Valley Forge and Hartford Iron entered into the 2012 Agreement. A true and correct copy of the 2012 Agreement is attached hereto as Exhibit 1.
46. Pursuant to the 2012 Agreement, Valley Forge and Hartford Iron agreed to release each other from any and all claims, counterclaims and causes of action that were or that could have been pled in, or in response to, the Coverage Litigation, as well as any and all claims for malpractice or bad faith with respect to the handling or defense of the IDEM and EPA claims described above, through the effective date of the 2012 Agreement.

         Second Amended Complaint, pp. 8-9 (italics added). In its brief in support of its motion for partial summary judgment, Valley Forge argues as follows:

The threshold question of “how much coverage” [there is] and the issue of bad faith are subjects suitable for summary judgment. Resolution of these issues will help focus what the Court has described as an amorphous case. Once the Court and the parties know “how big this breadbox is, ” as the Court put it, and dispose of a bad faith claim that has no place in this case, the parties' cross-claims for breach of contract can be tried.

         Valley Forge Brief in Support (ECF 802), p. 3. The Court agrees with this assessment. Valley Forge insists, as it has throughout this litigation, that the Settlement Agreements expressly limit the amount of coverage available to fund the remediation and that the Company has already reached or exceeded that amount. In its brief, Valley Forge states it this way:

A straightforward application of the [Settlement] Agreements and examination of the record establish that thee is no genuine issue of material fact that: (1) the parties agreed to a formula to calculate an “indemnity payment cap” limiting VFIC's financial obligations in connection with the Property, (2) the parties agreed that the indemnity payment cap would be depleted through payment of “Agreed Order Costs, ” and (3) VFIC has paid almost $14 million in Agreed Order Costs. Thus, the “how much coverage” issue can be decided as a matter of law, as the Court should rule that VFIC's indemnity payment cap is $15, 251, 460 and that VFIC has paid $13, 919, 623 in Agreed Order Costs.

Id., p. 3. Valley Forge insists that the policies listed in the Settlement Agreements provide a cumulative total of just over $15 million in coverage and that it has nearly reached that indemnity cap.[7] Hartford Iron and Goldberg insist that the policies actually provide for much more coverage-about $300 million.[8] The Court concludes that both sides are mistaken. The amount of coverage available under the policies is irrelevant. The relevant issue is the amount of damages to which the prevailing party will be entitled, which is not dependent upon the amount of coverage provided under the insurance policies. The side that prevails at trial on the issue of breach will be entitled to prove its damages regardless of how much coverage the policies allegedly provide or how much of that alleged cap has already been exhausted. It is axiomatic that a prevailing party in a breach of contract suit is entitled to damages in an amount that will make that party whole. “The measure of damages in a breach of contract case is the loss actually suffered by the breach.” Dana Companies, LLC v. Chaffee Rentals, 1 N.E.3d 738, 748 (Ind.Ct.App. 2013) (citing Sammons Communications of Indiana, Inc. v. Larco Cable Const., 691 N.E.2d 496, 498 (Ind.Ct.App. 1998)). See also, Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 507 (Ind.Ct.App. 2007) (“In a breach of contract case, the measure of damages is the loss actually suffered by the breach.”) (citing Sheppard v. Stanich, 749 N.E.2d 609, 611 (Ind.Ct.App.2001)).

         Valley Forge contends that its “indemnity obligation is capped at $15, 251, 460” and that the Settlement Agreements make that clear by listing the policies under which coverage exists. Valley Forge Brief in Support, p. 4. But the issue is not how much coverage the policies provide or how much of that has already been depleted. As far as money goes, the issue is one of damages for breach of contract, not one for the recovery of specific amounts allegedly available under any insurance policy, whether that amount is $15 million or $300 million. The issue in this case is one of damages, not one of coverage.

         Even if this case were a coverage case, the parties' arguments about how much coverage is available under which policies would still miss the point. In the case of McGrath v. Everest Nat. Ins. Co., a case cited by Hartford Iron and Goldberg as supporting their argument that there is no indemnity cap (or, more precisely, that the indemnity cap is $300 million rather than $15 million), this Court explained as follows:

Where an insurer breaches an insurance policy, recoverable damages are not defined by or restricted to the indemnity limits of the policy. Indiana Insurance Co. v. Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1090 (Ind.App. 1992). The law in Indiana is that “the policy limits restrict the amount the insurer may have to pay in the performance of the contract, not the damages that are recoverable for its breach.” See also Schroeder v. Barth, Inc., 969 F.2d 421, 425 (7th Cir. 1992) (citing Plummer Power as Indiana's law on contractual damages).
Accordingly, the measure of damages in an action against an insurer for breach of its duty to defend is defined by those damages “suffered as a result of the breach which are reasonably assumed to have been within the contemplation of the parties at the time the contract was formed.” Erie, 622 N.E.2d at 519.
“Consequential damages may be awarded on a breach of contract claim when the non-breaching party's loss flows naturally and probably from the breach and was contemplated by the parties when the contract was made, ” a concept generally conceived of as “reasonably foreseeable economic losses.” Johnson v. Scandia Assocs., Inc., 717 N.E.2d 24, 31 (Ind. 1999). See also Hasse Construction Company, Inc. v. Gary Sanitary District Board of Comm., 2008 WL 2169000, *7 (N.D.Ind. May 23, 2008) (stating that a party may recover in a contract action those losses suffered as a result of the breach which are reasonably assumed to have been contemplated by the parties at the time they formed the contract).

McGrath v. Everest Nat. Ins. Co., 668 F.Supp.2d 1085, 1107 (N.D. Ind. 2009). Hartford Iron and Goldberg's argument, then, is correct in part: if they prevail on the issue of liability, the damages to which they would be entitled would not be determined based on any indemnity cap under the insurance policies. Instead, damages would be the amount Hartford Iron and Goldberg are able to prove they incurred as a result of Valley Forge's breach of the Settlement Agreements. In other words, Indiana contract and damages law will govern the determination of damages to be awarded to the prevailing side. Therefore, the parties' long-standing and fiercely litigated battle over the amount of coverage available is, after it all shakes out, irrelevant.

         Furthermore, this Court addressed this issue several years ago, with Judge Miller observing as follows:

This claim would duplicate Hartford Iron's action in contract with an action in tort. “[A] party may not restyle a breach-of-contract claim as a tort claim simply to obtain additional damages. Where the source of a party's duty to another arises from a contract, tort law should not interfere.” Eads Parkway, LLC v. DBL Axel, LLC, 977 N.E.2d 354, 364 (Ind.Ct.App. 2012) (internal quotations omitted); Greg Allen Constr. Co. v. Estelle, 798 N.E.2d 171, 173 (Ind. 2003) (“Because a tort may produce more generous damages and open the door to the possibility of punitive damages, there is obvious incentive to seek to frame a contract breach as a negligence claim.”).

Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., 2017 WL 57808, at *6 (N.D. Ind. Jan. 4, 2017), reconsideration denied, 2017 WL 1546277 (N.D. Ind. Apr. 28, 2017). In another case, this Court explained as follows:

“Where an insurer breaches an insurance policy, recoverable damages are not defined by or restricted to the indemnity limits of the policy.” McGrath v. Everest Nat'l Ins. Co., 668 F.Supp.2d 1085, 1107 (N.D. Ind. 2009) (citing Ind. Ins. Co. v. Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1090 (Ind.Ct.App. 1992)). Instead, “a party injured by a breach of contract may recover consequential damages . . . [which] may be awarded when the non-breaching party's loss flows naturally and probably from the breach and was contemplated by the parties when the contract was made.” Rockford Mut. Ins. Co. v. Pirtle, 911 N.E.2d 60, 67 (Ind.Ct.App. 2009) (citing Thor Elec., Inc. v. Oberle & Assocs., Inc., 741 N.E.2d 373, 381 (Ind.Ct.App. 2000)). “A damage award must be based upon some fairly defined standard, such as cost of repair, market value, established experience, rental value, loss of use, loss of profits, or direct inference from known circumstances. The damages ...

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