Timm Grandview, LLC v. AmGUARD Ins. Co.
| Decision Date | 02 September 2022 |
| Docket Number | 8:20-CV-197 |
| Parties | TIMM GRANDVIEW, LLC, a Nebraska Limited Liability Company, Plaintiff, v. AMGUARD INSURANCE COMPANY, a Pennsylvania Company; and WESTGUARD INSURANCE COMPANY, a Pennsylvania company, Defendants. |
| Court | U.S. District Court — District of Nebraska |
MEMORANDUM AND ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT, MOTIONS IN LIMINE, AND MOTION TO STRIKE
Timm Grandview, LLC, (Timm) has sued AmGuard Insurance Company (AmGuard) and WestGuard Insurance Company (WestGuard) for breach of contract and for breaching the covenant of good faith and fair dealing. Filing 65 at 1-14. Plaintiff and Defendants have crossmoved for summary judgment on each of Timm's claims. Filing 172; Filing 174. Plaintiff has also filed two Motions in Limine to exclude or limit the testimony of two of Defendants' experts, Filing 163; Filing 169 and a Motion to Strike a meteorology report and prohibit its introduction at trial. Filing 166. For the reasons stated herein, the Court grants in part and denies in part Defendants' Motion for Summary Judgment, denies Timm's Motion for Summary Judgment, denies both of Timm's Motions in Limine, and grants Timm's Motion to Strike.
Plaintiff Timm is a Nebraska single-asset limited liability company that owns an apartment complex in Kearney, Nebraska, called the “Grandview Apartments.” Filing 65 at 1; Filing 175-5 at 3; Filing 175-12 at 13. The Grandview Apartments consists of two properties: “Avenue R” and “45th Street.” Filing 175-4 at 2-3; Filing 175-5 at 2-3.
Defendant AmGuard, an insurance company, issued two insurance policies to Timm, one for each of the properties making up the Grandview Apartments. Filing 177-1; Filing 177-2 at 1. Both policies had a coverage period lasting from February 1, 2017, to February 1, 2018. Filing 177-1; Filing 177-2 at 1. The policies required Timm to provide AmGuard with “prompt notice of the loss or damage” and to “cooperate with [AmGuard] in the investigation or settlement of the claim.” Filing 175-1 at 86; Filing 175-2 at 98. The polices also contained “no action” provisions that prohibited Timm from suing AmGuard unless Timm was in “full compliance with all of the terms” of the insurance policies. Filing 175-1 at 86; Filing 175-2 at 99.
AmGuard is a wholly owned subsidiary of WestGuard. Filing 10 at 2; Filing 175-1 at 2. Pursuant to an “Intercompany Agreement,” WestGuard provides claim handling services to AmGuard for Amguard's insurance policies and indemnifies Amguard for any “gross negligence or willful misconduct or breach of contract in providing services” under the agreement. Filing 1069 at 1-2. AmGuard does not have any employees handling its claims and underwriting services; instead, WestGuard's employees handle claims and underwriting for AmGuard. Filing 175-3 at 56.
On August 19, 2017, a hailstorm damaged both the Avenue R and 45th Street properties making up the Grandview Apartments. Filing 165-21 at 1; Filing 175-4 at 4. A little over a year later, on September 28, 2018, Timm reported its claims for hail damage to AmGuard. Filing 41-1 at 1. Timm states that it delayed reporting the damage to the Grandview Apartments because, after the storm, it did not know the extent of the damage and whether the damage required making an insurance claim and did not want to make an unnecessary claim that could raise its insurance rates. Filing 190-1 at 8-9.
After receiving Timm's claims for hail damage, AmGuard opened two claims under Timm's insurance policies.[2] Filing 41-1 at 1. WestGuard employee William Ardoline, a claims adjuster, handled Timm's claims on AmGuard's behalf. Filing 41-1 at 1. Ardoline's task was to decide whether and to what extent to cover the damage to the Grandview Apartments. Filing 1776 at 2-3. To assist him, Ardoline selected Engle Martin & Associates (Engle Martin) as an independent adjuster for Timm's claims. Filing 106-10 at 11. Engle Martin assigned one of its adjusters, Broc Beaver, to investigate the damage to the Grandview Apartments. Filing 165-2 at 2.
Beaver visited the Grandview Apartments to inspect the Avenue R and 45th Street properties on October 10, 2018. Filing 165-3 at 1-2; Filing 165-7 at 1-2. After his initial inspection, Beaver sent Ardoline initial reports for each property in which he recommended retaining an engineer to help assess the damage. Filing 165-3 at 2; Filing 165-7 at 2. Ardoline approved retaining an engineer and directed Beaver to utilize Rimkus Consulting Group, Inc., (Rimkus). Filing 41-3 at 1; Filing 175-4 at 5. Rimkus assigned Brandon Kyle, one of its engineers, to inspect the Grandview Apartments. Filing 175-4 at 5.
On January 2, 2019, Kyle issued a report for the Avenue R property in which he concluded that the damage occurred as a result of a hailstorm on May 10, 2018.[3] Filing 47-4 at 4-6. Although not entirely clear from the record, it appears that Kyle reached this conclusion by erroneously believing that the reported date of loss was August 19, 2018, rather than August 19, 2017. Filing 184-14 at 2. When he realized his error, Kyle issued a supplemental report on January 11, 2019, for the Avenue R property in which he concluded that multiple previous hailstorms, including the August 19, 2017, hailstorm, caused the damage to the Avenue R property. Filing 184-13 at 2-3. On February 1, 2019, Kyle issued a report for the 45th Street property, in which he similarly concluded that multiple hailstorms dating back to 2009, including the August 19, 2017, hailstorm, caused the damage to the property. Filing 47-3 at 5, 30-35.
Upon seeing that Kyle concluded that multiple hailstorms prior to August 19, 2017, contributed to the damage at the 45th Street property, Beaver emailed Ardoline asking about the coverage period for Timm's policy and how Ardoline would like him to proceed. Filing 177-7 at 1. Ardoline replied that the coverage period on Timm's policy was from February 1, 2017, to February 1, 2018, but did not provide further directives. Filing 177-7 at 1.
Following Kyle's reports, Beaver sent Ardoline follow-up reports incorporating Kyle's conclusions. Filing 165-4 at 5; Filing 165-8 at 1-6. In these follow-up reports, Beaver asked Ardoline how he would like Beaver to proceed. Filing 165-4 at 5; Filing 165-8 at 5. Later, on March 11, 2018, and March 12, 2018, Beaver provided subsequent reports to Ardoline for each of the properties and reiterated that he was waiting on further directions. Filing 165-5 at 1-4; Filing 165-9 at 1-3. Around this time, Beaver also sent emails to Ardoline asking for further instructions. Filing 177-8 at 1-3. Ardoline replied to these emails stating that he would provide instructions shortly. Filing 177-8 at 1-3. On April 8, 2018, Ardoline spoke with Beaver telling him that Timm's claims might be reassigned to another individual in Ardoline's department. Filing 165-6 at 1; Filing 165-10 at 1. After not hearing back from Ardoline for about a month, Beaver emailed Ardoline on May 7, 2019, asking for an update. Filing 177-9 at 1. Ardoline replied and told Beaver to close his files on Timm's claims; asked Beaver to send him the estimate for the claim on the 45th Street property and the contact information for engineer Kyle; and apologized to Beaver for the time it had taken to handle Timm's claims. Filing 177-9 at 1.
On May 28, 2019, Timm reached out to its insurance broker, the Mahoney Group (Mahoney), asking for help with resolving its insurance claims. Filing 175-11 at 7; Filing 177-13 at 13; Filing 190-1 at 12. A little over a month later, on June 5, 2019, Mahoney emailed Ardoline asking for an update. Filing 177-13 at 12. A series of emails between Mahoney, Ardoline, and Timm followed, in which Timm and Mahoney asked for updates, loss summaries, and the reports from engineer Kyle and independent adjuster Beaver. Filing 177-13 at 10-12. Eventually, on July 19, 2019, Ardoline sent an email to Timm and Mahoney explaining that the claim for the Avenue R property was being transferred to a different policy and that, after the transfer, Ardoline could allocate the damages and proceed towards issuing payments. Filing 177-13 at 10. Timm and Mahoney responded, asking for Ardoline's documentation and a loss summary. Filing 177-13 at 9-10. Ardoline replied on July 19, 2019, apologizing for the delay in handling Timm's claims and stating that he would provide an update as soon as possible. Filing 177-13 at 9.
Timm and Mahoney continued to request documentation from Ardoline who responded that the claim was proving difficult to resolve because of the number of buildings that are part of the Grandview Apartments and the several dates of loss that occurred outside the policy period. Filing 177-13 at 7-8. On August 21, 2019, Ardoline sent an email to Timm, Mahoney, and independent adjuster Beaver briefly explaining the status of Timm's claims. Filing 175-9 at 2-3. In the email, Ardoline stated that engineer Kyle noted that multiple storms had damaged the 45th Street property; asserted that only damage for the August 19, 2017, hailstorm would be covered; and asked Beaver to request an estimate from Kyle for damage caused by the August 19, 2017, hailstorm. Filing 175-9 at 2. Ardoline also outlined a loss estimate for some of the damaged buildings and attached a proof of loss for one of the buildings to the email. Filing 175-9 at 2-3. Timm and Mahoney continued to ask for additional documentation from Ardoline, who provided some information, such as the estimates from Beaver's reports, but not all of the documents requested by Timm and Mahoney. Filing 177-13 at 3-5. Although not entirely clear from the record, it appears Timm and Mahoney wanted a loss summary, an estimate from Beaver for some of the...
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