THE TOWNHOMES AT FISHERS POINTE HOMEOWNERS ASSOCIATION, INC. v. DEPOSITORS INSURANCE COMPANY
ORDER ADOPTING REPORTS AND RECOMMENDATIONS AND DENYING WITHOUT PREJUDICE DEFENDANT'S MOTON TO DISMISS - For the reasons stated above, the Court ADOPTS the Magistrate Judge's Report and Recommendation Filing No. 42 and DENIES as moot th e HOA's Motion for Judgment on the Pleadings Filing No. 12 . Additionally, the Court OVERRULES the HOA's Objection Filing No. 46 and ADOPTS the Magistrate Judge's Report and Recommendation Filing No. 44 , granting the Motion to Appoint Umpire Filing No. 35 and appointing Jeffrey Button as the umpire for the appraisal. Depositors' Motion to Dismiss, Filing No. 22 , is DENIED without prejudice to refile the Motion after the appraisal has been completed. ***SEE ORDER FOR ADDITIONAL INFORMATION*** Signed by Judge Tanya Walton Pratt on 7/15/2021.(JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
THE TOWNHOMES AT FISHERS POINTE
HOMEOWNERS ASSOCIATION, INC.,
DEPOSITORS INSURANCE COMPANY,
Case No. 1:20-cv-02788-TWP-DLP
ORDER ADOPTING REPORTS AND RECOMMENDATIONS AND
DENYING WITHOUT PREJUDICE DEFENDANT'S MOTON TO DISMISS
This matter is before the Court on a Motion for Judgment on the Pleadings filed by Plaintiff
The Townhomes at Fishers Pointe Homeowners Association, Inc. ("the HOA") (Filing No. 12),
and the parties' Motion to Appoint Umpire (Filing No. 35). Also pending is a Motion to Dismiss
filed by Defendant Depositors Insurance Company ("Depositors") (Filing No. 22). The HOA
initiated this action against Depositors to compel appraisal of a property loss after the parties
disputed the amount of loss. The Court referred the three motions to the Magistrate Judge for a
report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Filing No. 27, Filing No. 43).
The Magistrate Judge issued Reports and Recommendations that the Motion for Judgment on the
Pleadings be denied as moot because the parties have agreed to participate in the appraisal process
(Filing No. 42); and the appointment of Jeffery L. Button ("Button") (one of the umpires suggested
by Depositors) as the umpire for the appraisal (Filing No. 44). No Report and Recommendation
has been entered on the Motion to Dismiss which has been un-referred. Neither party objects to
the Report and Recommendation concerning the Motion for Judgment on the Pleadings. However,
the HOA objects to the Report and Recommendation concerning the appointment of an umpire
(Filing No. 46). For the reasons stated below the Court ADOPTS the Magistrate Judge's Report
and Recommendation (Filing No. 42) and denies as moot the HOA's Motion for Judgment on the
Pleadings (Filing No. 12); ADOPTS the Magistrate Judge's Report and Recommendation (Filing
No. 44), granting the Motion to Appoint Umpire (Filing No. 35) and appointing Button as the
umpire for the appraisal; and denies without prejudice the Motion to Dismiss (Filing No. 22).
A district court may assign dispositive motions to a magistrate judge, in which case the
magistrate judge may submit to the district judge only a report and recommended disposition,
including any proposed findings of fact. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760
(7th Cir. 2009). See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). "The magistrate judge's
recommendation on a dispositive matter is not a final order, and the district judge makes the
ultimate decision to adopt, reject, or modify it." Schur, 577 F.3d at 760. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3). After a magistrate judge makes a report and recommendation, either
party may object within fourteen days. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). "A judge
of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).
Further, a judge "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." Id. As to non-dispositive, pretrial matters, the
district court will "modify or set aside any part of the order that is clearly erroneous or is contrary
to law. A finding is clearly erroneous when the reviewing court is left with the definite and firm
conviction that a mistake has been committed. This is an extremely deferential standard." King v.
City of Fishers, 2020 WL 4726640, at *2 (S.D. Ind. Aug. 14, 2020) (internal citations and quotation
The facts of this case are set forth in the Magistrate Judge's Report and Recommendation
are not disputed, (Filing No. 44), so only a brief synopsis of the factual background is stated in this
Order. In addition, there is no need to repeat all of the legal analysis and conclusions of the
Magistrate Judge as the Court points the parties to the Report and Recommendation for that
The HOA is responsible for insuring and repair of certain real estate and structures,
including but not limited to roofs and siding, which are part of The Townhomes at Fishers Pointe
condominiums located in Fishers, Indiana. After the HOA suffered property damage to its
condominium buildings from a hailstorm, it submitted a loss claim to its insurer, Depositors.
Although Depositors disagreed with the amount of loss for the roof damage, Depositors made two
payments on the HOA's insurance claim. The HOA then filed this action against Depositors to
compel the appraisal process and to appoint a neutral umpire for the appraisal. Subsequently,
Depositors agreed to proceed with the appraisal, and the parties selected their appraisers pursuant
to the insurance policy. Unfortunately, the two appraisers could not agree upon the neutral umpire,
so, as required by the policy, the parties asked the Court to appoint the umpire. Each party
submitted two recommendations for the Court's consideration and the Magistrate Judge
recommended appointing Button˗˗one of the recommendations of Depositors˗˗as the umpire for
The Court will first discuss HOA's objection before discussing the remaining matters.
Motion to Appoint Umpire
The HOA objects to the Magistrate Judge's recommendation of Button, arguing among
other things, that the Report and Recommendation is in error because it concluded that Depositors'
selected appraiser is competent and impartial, and the HOA argues that the appraiser is not.
However, Depositors' selected appraiser is irrelevant to the Court's appointment of an umpire.
The insurance agreement provides that "each party will select a competent and impartial appraiser
. . . [and] [t]he two appraisers will select an umpire. If appraisers cannot agree, either may request
that selection be made by a judge of a court having jurisdiction." (Filing No. 6-1 at 70.) Therefore,
according to the plain terms of the insurance agreement, the Court's consideration and task is
selecting the umpire, not the parties' appraisers, and thus, the HOA's argument about Depositors'
selected appraiser is irrelevant and unavailing.
The HOA also argues error in the selection of Button, because he is not licensed to practice
engineering in Indiana. The HOA acknowledges that Button is licensed to practice architecture in
Indiana, (Filing No. 46 at 4), and in its earlier briefing, noted that an engineer or architect qualifies
to be an umpire (Filing No. 39 at 2). Therefore, this argument is unavailing. Furthermore, the
HOA complains that Button does not have specific experience and qualifications with respect to
roof hail damage, but the HOA is simply wrong as Button's curriculum vitae details his roof and
hail damage experience (see Filing No. 38-2).
Additionally, the HOA argues that the Report and Recommendation is in error because it
focused on qualifications and failed to consider bias and partiality of Button. The HOA asserts,
That an insurance company would nominate an umpire who it did not deem friendly
to its views defies how the real world works in this regard. Most troubling, the CV
of Button submitted by Insurance Company is obviously cut off at page 2 and
incomplete. [Dkt. 38-2 at 3]. No doubt page 3 of the CV contained a list of
representative clients chock full of insurance companies and a list of cases where
he served as an insurance company expert witness. Also, Button's most recent
employer prior to his current job was with Halliwell Engineering Associates,
known to this Court as an expert witness for the insurance industry. Rocklane
Company, LLC and Sycamore Village Homeowners Association v. Travelers
Casualty Insurance Company of America, Cause No.: 1:17-cv-02158-JMS-D,
Dkt.66-8. Under these circumstances, Plaintiff's objection to the Report's complete
failure to address the impartiality of its recommended umpire should thus be
(Filing No. 46 at 3.)
Depositors responds that the HOA's argument that Button is biased is speculative and
groundless with no supporting evidence. Depositors asserts that the HOA "falsely claims that the
CV of Button submitted by Depositors was cut off and implies this was a deliberate tactic to
obscure 'a list of cases of where he served as an insurance company expert witness.' Pl.'s Obj. at 3.
This is false. Depositors submitted Button's complete CV." (Filing No. 50 at 3.) Depositors argues
that the HOA points to no evidence of improper conduct or the existence of an inappropriate
relationship between Button, Depositors, or Depositors' selected appraiser. Furthermore, Button
does not have any financial interest in the outcome of this litigation or any other potential conflict
Depositors' position is well-taken. The HOA has not provided anything other than
speculation that Button may be biased. The Magistrate Judge noted that Button has prior
experience serving as an umpire and an appraiser in property insurance disputes and concluded
that he "would be competent and impartial in serving as an umpire." (Filing No. 44 at 7.) In its de
novo determination, the Court concludes that the Magistrate Judge committed no error concerning
Button's qualification and impartiality. The Magistrate Judge's consideration, analysis, and
conclusions regarding appointment of an umpire were correct and without error. Therefore, the
Court adopts the Report and Recommendation. concerning appointment of an umpire.
Motion for Judgment on the Pleadings
As noted earlier, there is no objection to the Report and Recommendation concerning the
Motion for Judgment on the Pleadings, so the Court adopts that Report and Recommendation.
(Filing No. 42).
Motion to Dismiss
Depositors separately filed a Motion to Dismiss, (Filing No. 22), pursuant to Rule 12(b)(6)
on the basis that the relief requested—compelling appraisal and appointing an umpire—has been
satisfied in that the parties have agreed to proceed with appraisal and the Court is appointing an
umpire. Depositors also asserts that the HOA failed to adequately plead claims for breach of
contract and waiver. In light of the Court's rulings in this Order on the Reports and
Recommendations, and the parties proceeding with the appraisal, the Court denies the Motion to
Dismiss, (Filing No. 22), without prejudice to refile the Motion after the appraisal is completed.
For the reasons stated above, the Court ADOPTS the Magistrate Judge's Report and
Recommendation (Filing No. 42) and DENIES as moot the HOA's Motion for Judgment on the
Pleadings (Filing No. 12). Additionally, the Court OVERRULES the HOA's Objection (Filing
No. 46) and ADOPTS the Magistrate Judge's Report and Recommendation (Filing No. 44),
granting the Motion to Appoint Umpire (Filing No. 35) and appointing Jeffrey Button as the
umpire for the appraisal. Depositors' Motion to Dismiss, (Filing No. 22), is DENIED without
prejudice to refile the Motion after the appraisal has been completed.
Donald D. Levenhagen
LANDMAN BEATTY LAWYERS LLP
Teresa A. Griffin
FAEGRE DRINKER BIDDLE &
Elizabeth B. Boggia
FAEGRE DRINKER BIDDLE & REATH LLP
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