Yogeshwar, Inc v. Society Insurance et al

Filing 53

MEMORANDUM OPINION AND ORDER: Society's 42 motion for summary judgment is granted in part and denied in part. It is granted as to Yogeshwar's claims of bad faith, fraud and tortious interference with contract. Those claims are therefore dismissed. The motion is denied as to Yogeshwar's breach of contract claim. West Bend's 43 motion for summary judgment is granted as to Yogeshwar's breach of contract claim, which is therefore dismissed. Because Yogeshwar has with drawn its bad faith claim against West Bend, that claim is also dismissed. As such, no claims against West Bend remain pending in this case. Yogeshwar's 44 motion for partial summary judgment is denied. This case shall proceed to trial only on Yogeshwar's breach of contract claim against Society. Signed by Judge Leonard T Strand on 7/9/2024. (jag)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
YOGESHWAR, INC.,
Plaintiff,

No. C23-1005-LTS-KEM

vs.
MEMORANDUM
OPINION AND ORDER

SOCIETY INSURANCE, et al.,
Defendants.
I.

INTRODUCTION

This case is before me on a motion (Doc. 42) for summary judgment by defendant
Society Insurance (Society), a motion (Doc. 43) for summary judgment by defendant
West Bend Mutual Insurance Company (West Bend) and a motion (Doc. 44) for partial
summary judgment by plaintiff Yogeshwar, Inc.

Yogeshwar has filed resistances to

defendants’ motions, see Docs. 46 and 49, and Society has filed a resistance to
Yogeshwar’s motion. See Doc. 45. The parties have also filed replies in support of their
respective motions. Docs. 50, 51 and 52. Oral argument is not necessary. See Local
Rule 7(c).
II.

PROCEDURAL HISTORY

Yogeshwar commenced this action by filing a petition at law and jury demand in
the Iowa District Court for Dubuque County on March 6, 2023. Doc. 2. On April 5,
2023, Society filed a notice (Doc. 1) of removal to this court based on diversity of
citizenship jurisdiction. 28 U.S.C. § 1332. In its second amended petition (Doc. 37),
Yogeshwar alleges the following claims:
 Count I – Declaratory relief against Society
 Count II – Breach of the Society Policy

 Count III – Bad faith denial of coverage against Society
 Count IV – Breach of the West Bend Policy
 Count V – Bad faith denial of coverage against West Bend
 Count VI – Fraud against Society
 Count VII – Intentional interference with contract and prospective business
advantage against Society
Trial is scheduled to begin September 16, 2024.
III.

SUMMARY JUDGMENT STANDARDS

Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question.” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475

2

U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249–50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248–49. The party moving
for entry of summary judgment bears “the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once
the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or otherwise, designate specific facts showing that there
is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir.
2005). The nonmovant must show an alleged issue of fact is genuine and material as it
relates to the substantive law. If a party fails to make a sufficient showing of an essential
element of a claim or defense with respect to which that party has the burden of proof,
then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at
322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587–88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. Id. However, “because we view the facts in the light
most favorable to the nonmoving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). Instead, “the court’s function is to determine whether a
dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1376–77 (8th Cir. 1996). On cross motions for summary judgment, the “court must rule
on each party's motion on an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the Rule 56 standard.” 10A
3

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2720 (3d ed. 1998).
IV.
A.

RELEVANT FACTS

Society’s Motion for Summary Judgment and Yogeshwar’s Motion for Partial
Summary Judgment
Yogeshwar purchased a hotel (the Property) in Peosta, Iowa, on or about July 24,

2019. Doc. 46-1 at 1. The Property was insured by a Society policy (the Policy) from
July 25, 2020, to July 25, 2021. Id. at 2. The Policy has a contractual limitations period
stating: “No one may bring a legal action against us under this insurance unless: . . .[t]he
action is brought within 2 years after the date on which the direct physical loss or damage
occurred.” Id. at 3. On August 10, 2020, a derecho hit Iowa. The parties dispute
whether the Property was outside of the geographic area affected by the derecho. Id. at
4; Doc. 45-1 at 1. Yogeshwar filed a claim with Society for roof damage with a date of
loss of August 10, 2020.1 Doc. 46-1 at 4-5l; Doc. 45-1 at 2.
Society adjuster Christi Stellingworth visited the Property and concluded there was
no damage caused by the derecho. Yogeshwar notes that Stellingworth walked around
the exterior of the property but did not go on the roof or inside the Property. Doc. 46-1
at 5. Greg Phillips of Tekton Forensics inspected the Property on two occasions on behalf
of Society, but the parties dispute his conclusion. Id. Society maintains that Phillips
found no causative hail or wind events for the claimed damage. Yogeshwar states that
Phillips’ report identifies hail and wind damage and noted shingle repairs in numerous
areas of the roof. It also states his report erroneously states that there were no storm
reports within the NCEI-Storm Event Database for August 10, 2020. Id. at 5-6. After
the second inspection, Phillips concluded: “My opinions rendered within my September

1

In September 2020, Yogeshwar reported interior damage. The parties dispute whether this was
the first time Yogeshwar claimed such damage. Doc. 46-1 at 6-7.

4

1, 2020 report remain unchanged based on both my investigation completed on August
25, 2020, and my most recent investigation completed on June 15, 2021.” Id. at 6.
On December 4, 2020, Society denied the claim via letter. Id. at 7. The letter
states in part: “Society Insurance has investigated this loss and do not feel there were
damages to the building from the August 10, 2020 storm . . . . Some interior water
damage was reported but above this area of the water damage there was no roof damage
or patch jobs according to our expert.” Doc. 51-1 at 2. 2 Society maintains that it
reiterated its denial in subsequent letters.3 Doc. 46-1 at 7-9. As part of its investigation,
Society requested Yogeshwar provide supporting documentation, such as repair invoices.
Id. at 19. Yogeshwar admits that Society made this request, but notes that there is no
documentation for some patchwork done to the roof after the derecho because Yogeshwar
did not receive an invoice or receipt and paid the contractor in cash. Id.
On June 25, 2021, Yogeshwar requested appraisal pursuant to the Policy. 4 Id. at
9. Society appointed Paul Strombeck as independent appraiser and Yogeshwar appointed

2

Yogeshwar admits receiving a letter from Society dated December 4, 2020, but denies receiving
the December 4, 2020, letter cited by Society in its appendix and argues that the letter is
inadmissible as lacking factual foundation. Doc. 51-1 at 2.
3

Yogeshwar asserts that Society’s evidence of those letters is inadmissible under Federal Rule
of Evidence 901. Id.
4

The Appraisal clause states:
2.

Appraisal.

If we and you disagree on the amount of loss, either may make 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 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.

5

Brad Roberts. Strombeck nominated William Marske to serve as umpire and Roberts
approved. Id. at 9-10. On December 16, 2021, the appraisal panel inspected the interior
and exterior of the Property. Id.
While the parties agree the appraisers inspected the interior of the Property,
Yogeshwar notes that the appraisal panel did not consider any of the interior damage in
the appraisal because Strombeck informed Roberts the appraisal panel could not readjust
the claim and it would be considered by Society separate and apart from the appraisal.5
Id. at 11. Society maintains the appraisal panel reviewed the claimed interior damage
and awarded $0. Doc. 45-1 at 7. Strombeck testified: “Due to the fact it was not on the
date of loss, the appraisal panel unanimously agreed not to consider it in their award.”
Doc. 46-1 at 11. Yogeshwar disputes Strombeck’s statement, noting that Roberts opined
that certain interior damage was caused by the August 10, 2020, derecho and notes that

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.
Doc. 45-1 at 3.
5

This is based on the following testimony from Roberts:
Q:
A:
Q:
A:
Q:
A:

You testified multiple times that Mr. Strombeck informed you that the panel
could not readjust the interior claim; correct?
That is his exact words, yes.
But for Mr. Strombeck’s statement that you could not readjust the interior
claim, would you have agreed to the appraisal award as written currently?
No.
And it was your opinion that certain interior damage was caused from the
August 10, 2020 derecho?
I felt that, yes.

Doc. 45-1 at 4-5.

6

Marske testified the interior damage was not included in the appraisal. Id. Marske
testified that interior damage
was never brought up as an item in dispute in the appraisal. There was
never any documents supplied or estimates or frankly I didn’t – it didn’t
appear that it was in this appraisal. It was never brought up as part of the
appraisal, at least the appraisers to me that I recall.
Doc. 45-1 at 6.
The appraisal panel observed at least three different colors of shingles on the roof.
Doc. 46-1 at 11. Yogeshwar notes this was due to multiple prior repairs from Yogeshwar
mitigating its damages and notes all such shingles were on the slopes the appraisal panel
agreed needed to be replaced. Id. at 11-12. The parties dispute whether the appraisal
award included consideration of Iowa’s line of sight rule. 6 Doc. 45-1 at 4. Yogeshwar
cites the following deposition testimony from Roberts:

6

Q:

In the appraisal panel discussions was there any discussion regarding
supplements following the appraisal award?

A:

I was told that we would have – that the contractor would have to
take it up with the insurance company for supplementing the line of
sight or the color matching of the shingles per slope and elevation.

Q:

And who informed you of that?

A:

I’m not for sure if it was Mr. Strombeck or Mr. Marske

Q:

And is that the reason why you didn’t push the line of sight rule in
reaching the award?

A:

I did push for it, but that’s what I was told – it would have to be
taken up with the contractor and the carrier. First appraisal, I – I
didn’t – I guess didn’t know any better.
....

See Iowa Admin. Code r. 191-15.44(1)(b).

7

Q:

- but for the statement that the line of sight could be or would be
considered as a supplement after the appraisal award, would you
have conceded to the appraisal award as written?

A:

Probably not.

Id. at 5. Marske testified that he could not specifically recall any discussion among the
panel regarding the applicability of a line of sight rule. Id. at 6. The parties agree that
Roberts submitted an ITEL Roof Repair Analysis Report, but Society notes the document
did not refer to applicability of the line of sight rule or interior damage to the Property.
Doc. 51-1 at 4-5.
The appraisal panel awarded replacement of the roof of the second story front
slopes only. Doc. 45-1 at 6. The appraisal contemplates full replacement of those two
slopes of the roof for an actual cash value (ACV) of $15,674.50 and replacement cost
value (RCV) of $23,425.55. Doc. 46-1 at 12. The Policy requires Society to pay the
ACV, less the deductible. It would pay depreciation (the difference between the ACV
and RCV) once the work is completed. On December 27, 2021, Society issued a check
in the amount of $15,674.50 to Yogeshwar and a replacement check in the same amount
on March 1, 2022, which Yogeshwar then deposited. Id. at 12-13. Yogeshwar denies
these statements, arguing they are not supported by admissible evidence. Id.
Society provided documents to West Bend7 related to the August 10, 2020, claim.
Id. at 13. Yogeshwar states that Strombeck informed West Bend that all damages to the
Property were addressed during the December 16, 2021, appraisal panel inspection even
though Strombeck informed Society: “The appraisal panel agreed that none of the new
damage or damage that existed prior to the August 10, 2020, date of loss would be
considered in our evaluation.” Id. at 14. Society notes any discrepancy is immaterial

7

The Property was insured by West Bend beginning in 2021. A weather event occurred on
December 15, 2021 (the day before the appraisal panel viewed the property), for which
Yogeshwar submitted a claim to West Bend.

8

because the appraisal award fully compensated the replacement of the only slopes that
were damaged by the December 15, 2021, weather event. See Doc. 50-1 at 13. West
Bend concluded that the damage from the December 15, 2021, weather event was
encompassed by the Society appraisal and had already been paid. Id.
The parties disagree on when Yogeshwar learned of disputed issues with the
Society claim. Society relies on a March 15, 2022, email in which Yogeshwar’s counsel
recognized “the dispute is over the interior repair work” and that she had “reviewed the
denial letter stating that interior work is an exclusion to the Policy.” Doc. 46-1 at 1415. On May 16, 2022, Yogeshwar’s counsel issued a letter stating “I understand Society
Insurance has improperly denied coverage as to the interior damage . . . .” Id. The
letter also demanded that Society “[a]djust the interior damage proximately caused by the
8/10/2020 derecho. . . .” and that Society pay for the replacement of the entire roof
pursuant to the line of sight rule. Id. at 15; Doc. 50-1 at 1. The letter accused Society’s
appraiser of making a fraudulent misrepresentation during the appraisal and that Society’s
denial of coverage was made in bad faith. Doc. 46-1 at 15-16. Society notes that
Yogeshwar never provided any documentation in support of its line of sight request.
Doc. 45-1 at 7.
On July 29, 2022, Society responded that the interior damage and line of sight rule
were determined through the appraisal process and ended: “Please do not hesitate to
contact me if you wish to discuss this matter further.” Doc. 50-1 at 1; Doc. 46-3 at 20.
The parties dispute when Society communicated its decision on interior damage and
application of the line of sight rule. Yogeshwar maintains it was not until the July 29,
2022, letter. Society maintains that it denied the claims on December 4, 2020, and
reiterated its denial position in letters dated April 27, 2021, and June 22, 2021. Doc.
50-1 at 2. It notes that Yogeshwar acknowledged this by retaining counsel and issuing
correspondence to Society in March and May 2022. Id.
The parties dispute whether Yogeshwar represented in an insurance application
that the roof was installed in 2019. Yogeshwar asserts there is no admissible evidence
9

demonstrating Yogeshwar ever made any representation to Society regarding the age of
the roof and the application lacks factual foundation to establish what the document is,
who created it and how it came into Society’s possession. Yogeshwar contends the
evidence cited in support by Society lacks factual foundation and is inadmissible. Society
relies on Strombeck’s testimony that the roof was original, approximately 20 years old
and at the end of its useful lifetime. Doc. 46-1 at 17.
The parties dispute whether Yogeshwar’s owner, Mihir (Mike) Patel, hired David
Ramsey to photograph the hotel shortly after purchasing the property in August 2019.
Id. Society maintains that Ramsey’s photos show that Yogeshwar’s claims of interior
damage existed in August 2019 and that photographs taken in or around 2015 reflect
similar interior damage. Id. at 18. It also relies on Strombeck’s testimony that he
reviewed photographs from Google Earth showing wind and hail damage and repair
patches predating August 10, 2020. Yogeshwar denies this and argues the evidence cited
by Society is inadmissible.
B.

West Bend’s Motion for Summary Judgment
Yogeshwar supported its Society claim based on the August 10, 2020, derecho

with (1) a roof repair estimate from Storm Recovery Roofing & Siding, LLC (Storm
Recovery) dated April 5, 2021, in the amount of $222,622.93 for replacement of the
entire roof and (2) an interior lobby and hotel room repair estimate from Kingdom
Warriors Construction LLC, dated August 17, 2021, in the amount of $95,135. Doc.
49-1 at 2. Yogeshwar and Society disputed the amount of loss sustained as a result of
the derecho and proceeded to appraisal to resolve the dispute.8 Id. The appraisal panel
inspected the Property on December 16, 2021, the day after a December 15, 2021,
windstorm that is the subject of Yogeshwar’s claim with West Bend. Id. Yogeshwar

8

Yogeshwar notes that the appraisal did not resolve all issues with its claim. Doc. 49-1 at 2.

10

notes that the Society appraisal panel agreed that no new damage would be considered in
the appraisal of the Society claim. Id. at 3. On December 24, 2021, the Society appraisal
panel issued an appraisal award of $23,425.55 RCV/$15,674.50 ACV, covering
replacement of the “2nd Story Front Slopes Only.” Id. Society paid the ACV portion
minus Yogeshwar’s deductible. Id.
West Bend issued a Commercial Lines insurance policy (the West Bend Policy) on
the Property, as the sole insurer, on or about July 25, 2021. Id. The West Bend Policy
includes property coverage for ACV only9 for the roof for wind/hail damage and has a
$10,000 wind/hail deductible. Id. at 4. It provides for payment of a loss only in excess
of the deductible. Id. The West Bend Policy also requires that any claimed loss or
damage to have occurred during the policy period. Id. at 4-5. If the insured intentionally
conceals or misrepresents a material fact concerning a claim, coverage is void pursuant
to the West Bend Policy. Id. at 5. Some of the insured’s duties in the event of loss are
to send the insurer a signed, sworn proof of loss containing information requested by the
insurer to investigate the claim and cooperate with the insurer in the investigation or
settlement of the claim. Id.
On December 29, 2021, Yogeshwar submitted a claim to West Bend asserting roof
damage and interior water damage as a result of a windstorm on December 15, 2021.
Id. at 6. West Bend conducted a building inspection on March 28, 2022, during which
Yogeshwar’s contractor, Alejandro Mayorga of Storm Recovery was present. 10 Id.
During the inspection, West Bend’s representative, Matt Davis, observed multiple
previously patched, repaired and/or replaced areas of the roof. Id. at 7. Historical aerial
9

The parties agree that an ACV policy does not preclude an insured from receiving coverage
for an entire roof if the roof needs to be replaced. Doc. 52-1 at 14.
10

Storm Recovery evaluated the roof after the August 10, 2020, derecho and after the December
15, 2021, weather event, noting new damage after December 15, 2021. It concluded that the
Property required a full replacement of the roof to adequately remedy the storm damage from
either event. Doc. 52-1 at 1-2, 4, 16.

11

photos established that these patches, repairs or replacements had been performed within
the previous two years.11 Davis determined there was some damage in the form of some
missing and damaged shingles, a partially missing ridge cap and a piece of missing fascia.
He concluded these items could be repaired.12 Id. Specifically, Davis saw damage to
slopes 1, 2, 5, 6 and 9, but found that damage from the December 15, 2021, weather
event was limited to slope 2.13 Doc. 52-1 at 5-6. Inside, he found some water damage
around the chimney, but determined this was caused by flashing as there had been no
wind damage around the chimney. Doc. 49-1 at 8. While he observed some water
damage in some hotel rooms, he determined this was pre-existing because it was located
beneath sections of the roof that had been previously repaired.14 Id.
On April 5, 2022, Storm Recovery provided West Bend with an ITEL report
concurring that the roof could not be repaired but needed to be replaced. Doc. 52-1 at
7. The ITEL report indicated that non-damaged shingles could be damaged by repairs
and that the “Ridge cap damage affects adjacent slopes.” Id. at 8, 16. Yogeshwar
submits that removing the second story front slopes and ridge cap will necessarily cause
irreparable damage to the adjoining second story back slopes of the Property. Id. at 15.
It states a contractor will not be able to remove a single row of shingles on the adjoining
second story back slopes without damaging the shingles on the row underneath it, which
11

The parties dispute whether the current patches on the Property were installed after the weather
events at issue and whether they are adequate to remedy the storm damage to the roof based on
the age and condition of the current shingles on the roof. Doc. 52-1 at 7-8.
12

Yogeshwar denies these statements, arguing they are not supported by admissible evidence. It
argues the claim notes lack foundation and the “historical aerial photos” are inadmissible hearsay
within hearsay. Doc. 49-1 at 7.
13

The parties agree that the Society appraisal award encompassed slopes 1 and 2. Doc. 52-1 at

6.
14

Yogeshwar denies statements regarding the interior damage as unsupported by admissible
evidence. Specifically, it argues the claim notes lack foundation. It also denies that all interior
water damage pre-existed the December 21, 2021, storm.

12

will have a domino effect in damaging shingles below each row. Id. at 15-16. West
Bend denies this, citing the Society appraisal award.

Doc. 43-3 at 30-33.

Storm

Recovery concluded that the roof required a full replacement to adequately remedy the
storm damage from either the August 10, 2020, derecho or the December 15, 2021,
weather event. Id. at 4. Mayorga’s price estimate to replace the roof did not change
from April 5, 2021, to November 10, 2022, when Yogeshwar submitted its Proof of Loss
to West Bend. Id. at 5. Its Proof of Loss did not include any interior damage estimates.
Id.
West Bend retained a roofing contractor, Davis Construction, for a second
opinion. This contractor determined the roof damage was repairable. 15 Doc. 49-1 at 8.
Davis Construction provided no documents, pictures or estimates to support its finding.
Doc. 52-1 at 9. West Bend also searched the building’s claim history and discovered the
claim to Society based on the August 10, 2020, derecho. It learned that the claim went
to appraisal and the appraisal panel conducted its inspection after the December 15, 2021,
storm, awarding replacement of the roof’s upper front slopes. 16 Doc. 49-1 at 9. The
appraisal award was for full replacement of the “2nd Story Front Slopes Only.” Id. The
parties dispute whether this was also the portion of the roof damaged by the December
2021 storm. Matt Davis concluded the repairs for the December 2021 storm would cost
$1,092.06.17 Id. at 10. On April 14, 2022, he wrote to Patel explaining his findings and

15

Yogeshwar denies this statement, arguing the claim notes and correspondence from Ryan Davis
lack foundation. It also denies that the roof is repairable.
16

Yogeshwar denies this statement, arguing the claim notes lack foundation and are inadmissible.
It also states no evidence exists to show Society paid the RCV amount identified in the appraisal
award.
17

Yogeshwar denies this statement as lacking foundation and denies that the roof can be repaired.

13

the repair cost estimate and advised that because it was less than the policy deductible,
West Bend would not issue a payment.18 Id.; Doc. 52-1 at 12.
On April 18, 2022, Yogeshwar demanded that West Bend submit to appraisal.
Doc. 49-1 at 11. West Bend denied the demand, citing the overlap in damages between
the derecho and December 2021 windstorm. It reserved its rights under the West Bend
Policy, stating that it would continue to investigate and requested that Yogeshwar provide
a complete sworn proof of loss, supporting documentation and asked Yogeshwar to
provide a recorded statement. Id.
On August 30, 2022, Yogeshwar’s counsel sent a letter of representation to West
Bend. Id. at 12. West Bend responded, providing counsel with a copy of the sworn
proof of loss form and reiterated its request for a recorded statement. Id. On September
8, 2022, Patel provided his recorded statement.

According to West Bend, Patel

acknowledged the Society claim, but represented that Society had paid nothing on the
claim. After advising that West Bend knew of the appraisal award, Patel stated if Society
had paid anything, it was paid to Yogeshwar’s contractor, Mayorga. Patel then stated
Yogeshwar had actually received payment from Society but had not used any portion of
the payment.19
On October 4, 2022, West Bend issued updated Reservation of Rights
correspondence to Yogeshwar. Id. at 13. On November 10, 2022, Yogeshwar submitted
a sworn proof of loss. Id. Within the sworn proof of loss, Yogeshwar represented it had
sustained “wind and water damage” and claimed “$222,622.93, less amounts paid by
Society” as a result of the December 2021 windstorm. Id. This is the exact damage

18

Yogeshwar denies this statement arguing the claim notes and correspondence lack foundation
and are inadmissible. It admits that West Bend denied the claim.
19

Yogeshwar denies West Bend’s summary of the recorded statement as lacking foundation. It
states that during the recorded statement, Patel did not at first recall if it received a check from
Society or West Bend but agreed to review its records and provide a copy of the check to West
Bend later, which he did. Doc. 49-1 at 12-13; Doc. 52-1 at 10.

14

figure appearing on Yogeshwar’s roofing contractor’s estimate dated April 5, 2021, for
cost of replacing the entire roof after the August 2020 derecho. Id. The parties dispute
whether Yogeshwar provided West Bend all information requested of it regarding the
Society claim. Doc. 52-1 at 9. The parties dispute whether West Bend ever requested
any estimates from Yogeshwar to support Yogeshwar’s proof of loss. Id. at 12.
On November 15, 2022, West Bend denied the claim, asserting the damage from
the December 2021 storm had been addressed and covered under the Society claim. Doc.
49-1 at 14. Yogeshwar filed suit on March 6, 2023, alleging breach of contract and bad
faith. Id.
V.
A.

DISCUSSION

Society’s Motion for Summary Judgment20
Society seeks summary judgment on all of Yogeshwar’s claims. It argues that the

contractual limitations period in the Policy bars this lawsuit, and otherwise argues that
Yogeshwar’s claims fail as a matter of law on the undisputed facts or that its claims are
not legally cognizable and unsupported.
1.

The Contractual Limitations Period

The Policy contains the following contractual limitations period: “No one may
bring a legal action against us under this insurance unless: . . . [t]he action is brought
within 2 years after the date on which the direct physical loss or damage occurred.” Doc.
42-3 at 103. It is undisputed that the claimed date of loss is August 10, 2020. Yogeshwar
filed suit on March 6, 2023. Doc. 1-2. The issue is whether Society waived the
contractual limitations period.

20

There is some overlap between Society’s motion for summary judgment and Yogeshwar’s
motion for partial summary judgment. As such, Section V(A)(2)(a) will also address
Yogeshwar’s motion for partial summary judgment.

15

Waiver is “the voluntary or intentional relinquishment of a known right.” Scheetz
v. IMT Ins. Co., 324 N.W.2d 302, 304 (Iowa 1982) (quoting Travelers Indem. Co. v.
Fields, 317 N.W.2d 176, 186 (Iowa 1982)).21 It can be shown by affirmative acts or
inferred from conduct. Id. “The issue of waiver is generally one of fact for the jury, in
particular where acts and conduct are relied upon as the basis for the waiver.” Id. (citing
Continental Casualty Co. v. G.R. Kinney Co., 140 N.W.2d 129, 130 (Iowa 1966)).
Yogeshwar argues Society waived the contractual limitations period because it did
not state its position regarding interior damage or application of the line of sight rule until
July 29, 2022 – 12 days before the contractual limitations period expired. The court has
twice rejected Society’s efforts to dismiss the case based on application of the contractual
limitations period. See Docs. 21, 35 (explaining that a jury could conclude that Society
waived the contractual limitations period by finding (1) did not inform Yogeshwar of its
denial of interior damage or use of the line of sight rule until less than two weeks remained
within the contractual limitations period and (2) invited further discussion and did not
mention the contractual limitations period or its intent to enforce it). Yogeshwar relies
on the same evidence and reasoning of those decisions. Specifically, it argues the
undisputed evidence confirms its allegations that Society did not address interior damage
or application of the line of sight rule after the conclusion of the appraisal until July 29,
2022, at which time Society stated its position for the first time. See Doc. 46 at 5.
Society’s July 29, 2022, letter acknowledges that Yogeshwar’s May 16, 2022,
letter includes two demands of Society: “(1) to adjust the interior damage allegedly caused
by the August 10, 2020 derecho; and (2) to pay for replacement of the insured’s entire
roof, pursuant to Chapter 191, Section 15.44(1)(b) of the Iowa Administrative Code, aka
the ‘Line of Sight Rule.’” Doc. 46-3 at 19. The letter goes on to explain why it believes
those items were considered and rejected by the appraisal panel. Id. at 19-20. The letter

21

Neither party contends that the law of any state other than Iowa applies in this diversity action.

16

concludes: “Please do not hesitate to contact me if you wish to discuss this matter
further.” Id.
Society makes three arguments as to why waiver does not apply. First, it argues
that pursuant to Scheetz, the parties had to be engaged in negotiations for settlement up
to, through and beyond the contractual limitations period. Doc. 42-1 at 4. It argues that
communication alone is insufficient and that Society’s statement to “contact me if you
wish to discuss this matter further” is “mere salutation.”22 Second, it argues July 29,
2022, was not the first time Yogeshwar knew Society’s position on the issues of interior
damage and application of the line of sight rule. Third, it argues that Yogeshwar cannot
rely on its August 10, 2022, correspondence to Society as it is Society’s conduct that
must determine waiver.23
Society’s first argument is grounded in Scheetz, which the court relied on to
previously reject Society’s position. In Scheetz, the insurer had offered to settle the claim
several months before the expiration of the contractual limitations period. Scheetz, 324
N.W.2d at 303. The claimants rejected the offer and one day prior to the expiration of
the contractual limitations period, the insurer came back with another offer. Id. The
claimants rejected it and almost two months later, the insurer withdrew the offer and
stated it would not be making any new offer of settlement. Id. After retaining new
counsel, the claimants reached out several months later asking if the insurer would
consider a specified amount. The Iowa Supreme Court noted there was some suggestion
the claim was still in negotiation after this. The claimants filed suit years later – a little
over three years after expiration of the contractual limitations period. Id.

22

As Yogeshwar points out, salutation is not the proper word here as it means a greeting and is
used at the beginning of a letter. A more appropriate word would be valediction or closing.
23

Yogeshwar does not rely on this correspondence in its resistance to Society’s motion. See
Doc. 46 at 4-6.

17

On summary judgment, the insurer conceded that it may have waived the
contractual limitations period when it made an offer one day prior to the end of the
contractual limitations period but argued that the period then would have commenced on
the day that it ended settlement negotiations by withdrawing its offer and stating it would
not be making any further offers. Id. The Court held that when the insurer carried the
negotiations through the end of the contractual limitations period “it could have had no
other intent than to relinquish its contractual right to limit suits to the period.” Id. at
304. The Court concluded that the insurer could not then recall its waiver and the waiver
did not otherwise expire as a matter of law. Id. at 305. Therefore, the general statute
of limitations for written contracts applied. Id.
The Scheetz Court acknowledged there is a split of authority on the issue and that
some cases had factual distinctions, such as outright denial of liability as opposed to a
dispute over the amount of loss. Id. (citing Peloso v. Hartford Fire Ins. Co., 267 A.2d
498 (N.J. 1970)). The Court also acknowledged that other jurisdictions hold that a
limitations period is waived if an unreasonably short time for bringing suit remains out
of the prescribed period after the insurer has ceased to hold out inducements such as to
delay filing of the action. Id. at 306.
Scheetz has less to do with waiver and more to do with what happens after waiver,
as the initial waiver was conceded in that case. A case more on point is Brunner v.
United Fire & Cas. Co., 338 N.W.2d 151 (Iowa 1983), which Society does not address,
except for facts that the Court relied on in reviewing the issue de novo. See Brunner,
338 N.W.2d at 153 (finding no evidence that defendant made any representation to induce
Brunner to delay filing suit beyond the one-year period). More to the point is the Court’s
conclusion that there was a fact issue regarding implied waiver when the insurer denied
liability six weeks before the one-year period remained. Id. at 152 (citing Scheetz for the
proposition that “if an unreasonably short time for bringing suit remains out of the
prescribed period after the insurer has ceased to hold out inducement such as to delay
filing of the action” there may be waiver and that implied waiver is generally an issue of
18

fact for the jury).

Importantly, the outcome in Brunner did not depend on active

settlement negotiations near the end of the contractual limitations period, but the denial
of liability, which is at issue here. As such, the absence of active settlement negotiations
does not preclude Yogeshwar’s waiver argument.
With regard to Society’s second argument, that it denied the interior damage claim
and application of the line of sight rule well before July 29, 2022, it cites the following
portions of its correspondence with Yogeshwar:
 December 4, 2020 – “Society Insurance has investigated this loss and do not
feel there were damages to the building from the August 10, 2020 storm . . .
. Some interior water damage was reported but above this area of the water
damage there was no roof damage or patch jobs according to our expert.”
 April 27, 2021 – “We have made a coverage decision and feel we have
enough information to support it.”
 June 22, 2021 – reporting its “position has also not changed at this time”
See Doc. 42-4 at 38, 40-41. Society also cites Yogeshwar’s correspondence, in which
counsel for Yogeshwar communicated via email with Roberts and Storm Recovery on
March 15, 2022, concerning whether the dispute was over interior work only. Id. at 4243. This was followed up by a letter to Society on May 16, 2022, in which counsel for
Yogeshwar identified the two disputes on the claim – interior damage and application of
the line of sight rule and raised the issue of Strombeck’s representations during the
appraisal. Id. at 44-46. Taking this evidence together, Society argues there is no
admissible evidence to support Yogeshwar’s allegation that it did not know Society denied
the claim until July 29, 2022.
Yogeshwar relies on implied waiver, which is generally an issue of fact for the
jury. See Scheetz, 324 N.W.2d at 306. While the correspondence itself is undisputed,
the parties greatly dispute the inferences to be drawn from such evidence. Society’s
position is that it communicated denial of the claim early on such that Yogeshwar had
19

sufficient time to evaluate and file a legal action. Yogeshwar’s position is that Society
had failed to sufficiently evaluate certain aspects of its claim (or denied it on improper
grounds) such that Society’s consideration of the claim was incomplete until its July 29,
2022, letter, which failed to mention the upcoming expiration of the contractual
limitations period and left Yogeshwar little time to evaluate pursuing legal action.
Of course, the parties rely on other facts and circumstances to support their
positions on whether the contractual limitations period was waived and it is appropriate
for the factfinder “to consider all of the circumstances surrounding the parties’
negotiations in determining whether defendant engaged in conduct through which it
relinquished the limitation.” Brunner, 338 N.W.2d at 153. Giving Yogeshwar the
benefit of all reasonable inferences that can be drawn from the facts, see Matsushita, 475
U.S.at 587-88, I find there is a genuine dispute for trial as to whether Society waived the
contractual limitations period.
2.

Breach of Contract

Society argues it is entitled to summary judgment on Yogeshwar’s breach of
contract claim because: (a) Yogeshwar elected appraisal, all three members of the
appraisal panel agreed on the award and Society issued payment thereon; (b) Yogeshwar
provided no information suggesting the line of sight rule could apply to the building’s
patchwork roof, (c) the claimed interior damage was preexisting since at least 2015, (d)
Yogeshwar did not cooperate in the investigation and (e) Yogeshwar failed to promptly
produce requested documents. Yogeshwar argues that a genuine issue of material fact
exists on the breach of contract claim. I will address each of Society’s arguments in turn.

20

a.

Appraisal Award24

Society argues Yogeshwar elected appraisal and is bound by the appraisal award.
Yogeshwar argues that the appraisal award should be set aside based on mistake, fraud
or malfeasance as alleged in Yogeshwar’s May 16, 2022, letter. It argues that instead of
investigating any mistake, fraud or malfeasance in the appraisal process, Society denied
such assertions. It contends it has submitted admissible evidence to demonstrate a fact
issue that Society breached the Policy by Society’s failure to (a) properly investigate
Yogeshwar’s claims of mistake, fraud or malfeasance in the appraisal process, (b) adjust
the interior damages after the appraisal panel determined there was in fact storm damage
to the property from the August 10, 2020, derecho and (c) consider the application of the
line of sight rule after the conclusion of the appraisal.
To prevail on a breach of contract claim under Iowa law, a plaintiff must prove:
(1) the existence of a contract; (2) the terms and conditions of the contract;
(3) that [plaintiff] has performed all the terms and conditions required under
the contract; (4) the defendant's breach of the contract in some particular
way; and (5) that plaintiff has suffered damages as a result of the breach.
Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998)
(citing Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 825 (Iowa
1993)). A party breaches a contract when, without legal excuse, the party fails to perform
any promise that forms a whole or a part of the contract. Id. (citing Magnusson Agency
v. Pub. Entity Nat'l Co. Midwest, 560 N.W.2d 20, 27 (Iowa 1997)).
Because “insurance policies are contracts between the insurer and insured, [they]
must be interpreted like other contracts, the objects being to ascertain the intent of the
parties.” Talen v. Emps. Mut. Cas. Co., 703 N.W.2d 395, 407 (Iowa 2005). “If the
language of the policy is unambiguous, . . . that intent is determined by what the policy

24

Yogeshwar’s motion (Doc. 44) for partial summary judgment argues I should set aside the
appraisal award based on fraud, mistake or misfeasance. I will consider both motions in this
section, keeping in mind the parties’ respective burdens.

21

itself says.” Monroe Cnty. v. Int’l Ins. Co., 609 N.W.2d 522, 525 (Iowa 2000). “An
ambiguity exists when, after application of our relevant rules of interpretation, a genuine
uncertainty results as to which of two or more meanings is proper.” Am. Fam. Mut. Ins.
Co. v. Petersen, 679 N.W.2d 571, 576 (Iowa 2004), amended on denial of reh’g (May
6, 2004). “When two reasonable interpretations exist, the policy is construed most
favorably to the insured.” Id. However, courts “will not give a strained or unnatural
reading to the words of the policy to create ambiguity where there is none.” Morgan v.
Am. Fam. Mut. Ins. Co., 534 N.W.2d 92, 99 (Iowa 1995), overruled on other grounds
by Hamm v. Allied Mut. Ins. Co., 612 N.W.2d 775, 784 (Iowa 2000).
The party claiming entitlement to coverage under the policy must prove
compliance with its terms. Am. Guar. & Liab. Ins. Co. v. Chandler Mfg. Co., 467
N.W.2d 226, 228 (Iowa 1991); Bruns v. Hartford Accident & Indem. Co., 407 N.W.2d
576, 579 (Iowa 1987); Henschel v. Hawkeye–Security Ins. Co., 178 N.W.2d 409, 415
(Iowa 1970); Henderson v. Hawkeye–Security Co., 106 N.W.2d 86, 91 (Iowa 1960). The
party claiming coverage may meet this burden of proof by showing: (1) substantial
compliance with the condition precedent; (2) the failure to comply was excused or
waived; or (3) the failure to comply was not prejudicial to the insurer. Am. Guar., 467
N.W.2d at 228; Henderson, 106 N.W.2d at 92.

Under Iowa law, waiver is “the

intentional relinquishment of a known right.” Huisman v. Miedema, 644 N.W.2d 321,
324 (Iowa 2002) (quoting State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000)). Further,
an insured’s violation of a condition precedent is presumed to be prejudicial to the insurer.
Met–Coil Sys. Corp. v. Columbia Cas. Co., 524 N.W.2d 650, 658 (Iowa 1994); Am.
Guar., 467 N.W.2d at 228. However, the insured may rebut the presumption if it shows
the lack of prejudice by satisfactory evidence. Met–Coil, 524 N.W.2d at 658; Western
Mut. Ins. Co. v. Baldwin, 137 N.W.2d 918, 925 (Iowa 1965).
When parties engage in an appraisal, courts must “decide coverage questions, but
the appraisers’ determination of the factual cause and monetary amount of the insured
loss is binding on the parties absent fraud or other grounds to overcome a presumption
22

of validity.” Walnut Creek Townhome Assoc. v. Depositors Ins. Co., 913 N.W.2d 80,
87 (Iowa 2018). “But this does not mean the court is free to disregard the appraisal
award as to factual disputes that may be dispositive of coverage questions.” Id. at 91.
An appraisal award “will not be set aside unless the complaining party shows fraud,
mistake or misfeasance on the part of an appraiser or umpire.” Id. at 89.
Yogeshwar’s argument that the appraisal award should be set aside is based on
evidence (in the form of Roberts’ deposition testimony) that Strombeck told the rest of
the appraisal panel that (1) they could not readjust the interior claim and (2) that
application of the line of sight rule would have to be addressed after the appraisal between
the contractor and Society. Doc. 44-1 at 3-4. Yogeshwar argues these representations
were, at minimum, a mistake because Society has taken a different position than
represented by Strombeck. Society asserts the interior damages were addressed by the
appraisal panel and that the line of sight rule was also considered and rejected by the
appraisal panel. Roberts has testified he would not have agreed to the appraisal award
but for Strombeck’s representations as he believed there was interior damage from the
August 10, 2020, derecho and that the line of sight rule should have applied allowing for
replacement of the entire roof.
Society argues it adjusted the interior damage claim by concluding the claimed
interior damage was not covered under the Policy. It cites Strombeck’s and Roberts’
deposition testimony acknowledging that the claimed interior damage existed prior to the
August 10, 2020, derecho and Google photographs showing the pre-existing damage.
Doc. 45 at 11. Society notes that the appraisal panel reviewed the interior damage and
omitted it from the appraisal award because it predated the claimed date of loss.
For purposes of both motions, I find there is a genuine issue of material fact on
the issue of whether the appraisal panel considered interior damage and application of the
line of sight rule. Yogeshwar has submitted evidence that the appraisal panel did not
consider these items. It cites the following deposition testimony from Roberts:
23

Q:

In the appraisal panel discussions was there any discussion regarding
supplements following the appraisal award?

A:

I was told that we would have – that the contractor would have to
take it up with the insurance company for supplementing the line of
sight or the color matching of the shingles per slope and elevation.

Q:

And who informed you of that?

A:
Q:

I’m not for sure if it was Mr. Strombeck or Mr. Marske.
...
And if you had – but for the statement that the line of sight could be
or would be considered as a supplement after the appraisal award,
would you have conceded to the appraisal award as written?

A:

Probably not.
...

Q:

You testified multiple times that Mr. Strombeck informed you that
the panel could not readjust the interior claim; correct?

A:

That is his exact words, yes.

Q:

But for Mr. Strombeck’s statement that you could not readjust the
interior claim, would you have agreed to the appraisal award as
written currently?

A:

No.

Q:

And it was your opinion that certain interior damage was caused
from the August 19, 2020 derecho?

A:

I felt that, yes.

Doc. 44-3 at 23-24. Society has submitted evidence that the appraisal panel considered,
but rejected, these items as part of the appraisal award. It cites Strombeck’s deposition
testimony in which he described the interior damage they observed and then testified:
This damage had been there for quite some time. There had been multiple
repair attempts to it prior to the date of loss, and so this was an ongoing
thing because the roof was never properly repaired. Due to the fact it was
24

not on the date of loss, the appraisal panel unanimously agreed not to
consider it in their award.
See Doc. 45-4 at 88. As to the line of sight rule, Strombeck testified:
[T]his is a pretty generic colored shingle, and there’s going to be shingles
available on the market that are going to represent a reasonable match
anyhow. So there is never a line of sight debate at all or really substantial
discussion with the appraisal panel.
Id. at 91. He also testified: “The public adjustor [sic] who’s representing the insured
here, and if he’s a public adjustor [sic], he’s well aware of line of sight. If he was going
to argue match, he would probably have pulled an Itel for match and provided that to the
panel. None was provided.” Id. at 92. When asked whether it was fair to say the panel
did not consider or determine whether there was a match available under the line of sight
rule, Strombeck testified that he did not look to see if there was a matching shingle
available stating “that’s a very common color like a weather wood color. So every
shingle manufacturer makes a similar color. There’s nothing unique about that color.”
Id. He later testified:
Q:

I believe you testified earlier that you weren’t sure that the panel
discussed specifically the line of sight matching and applicability, is
that correct or incorrect?

A:

That’s actually correct, and basically I’m working off memory now
four years later and so obviously we discussed it.

Id. at 94-95. Marske, the umpire, testified he could not “recall anything specifically”
with regard to discussion of interior water damage. Doc. 44-3 at 28. He testified,
“[t]here was never any documents supplied or estimates or frankly I didn’t – it didn’t
appear that it was in this appraisal. It was never brought up as part of the appraisal, at
least the appraisers to me that I recall.” Id. Nor could he recall any discussion among
the panel regarding the applicability of a line of sight rule. Id. at 28. Marske testified
that Roberts and Strombeck never came to him for any decisions to be made. Id.
25

Based on the record, there are clearly factual disputes regarding (1) whether the
appraisal panel considered interior damage and application of the line of sight rule and
decided not to include either in the appraisal award and (2) whether Strombeck precluded
consideration of these matters by statements he made to Roberts. Viewing the facts in
the light most favorable to Yogeshwar, a jury could credit Roberts’ testimony and
conclude Strombeck’s statements at least amounted to mistake sufficient to set aside the
appraisal award. Viewing the facts in the light most favorable to Society, a jury could
conclude that Strombeck never made such statements or that they did not rise to the level
of fraud, mistake or misfeasance required to set aside the appraisal award and that the
appraisal panel considered and rejected compensation for those items.
Neither party is entitled to summary judgment on the issue as each has presented
evidence in response to the opposing party’s motion demonstrating a genuine issue of
material fact. As such, at the summary judgment stage, the appraisal award neither
precludes Yogeshwar’s breach of contract claim at this stage nor must be set aside. The
jury must determine whether the parties are bound by the award.
b.

Line of Sight Rule

Society argues that there can be no breach of contract based on application of the
line of sight rule because Yogeshwar has offered no evidence demonstrating that “line of
sight” required more repairs. It argues the rule does not apply for four reasons: (1) there
was no reasonably uniform appearance before the claimed loss, (2) Strombeck noted that
the original shingle color was weather wood, which is a widely carried color available
from any manufacturer, (3) the appraisers and umpire agreed the scope of the damage
was limited to two slopes of the roof, for which they agreed to full replacements and (4)
Yogeshwar had ample opportunity to demonstrate why, if at all, the new shingles would
not match.
Yogeshwar argues that Society did nothing to investigate whether a color or pattern
match existed for the majority of the shingles on the Property. It notes that Yogeshwar’s
26

contractor had attempted to find a match but was unable to do so as the shingles had been
discontinued, which is why the patching was done in different colors. Yogeshwar argues
this is sufficient to demonstrate applicability of the line of sight rule. It notes there is no
legal authority providing that the non-uniformity prior to the loss precludes application
of the line of sight rule, particularly where an insured was attempting to mitigate damages
by patching the roof and a color match was not available.
The line of sight rule provides:
When a loss requires replacement of items and the replaced items do not
match in quality, color or size, the insurer shall replace as much of the item
as is necessary to result in a reasonably uniform appearance within the same
line of sight. This subrule applies to interior and exterior losses.
Exceptions may be made on a case-by-case basis.
Iowa Admin. Code 191-15.44(1)(b).

The evidence Yogeshwar cites in support of

application of this rule is an affidavit by Alejandro Mayorga of Storm Recovery. Doc.
46-3 at 87. Society argues this affidavit is immaterial because it is conclusory and was
not disclosed as expert testimony or otherwise in discovery. It further argues that the
rule requires only reasonable uniformity of sight, not an identical twin from the same
manufacturer. In order to be material, Society asserts that the affidavit would have to
attest there are no similar colors from any manufacturer and this would have had to be
communicated to Society. Similarly, Society argues it is immaterial that Society did
nothing to investigate whether there was a color or pattern match that existed for the
majority of the shingles on the subject property because it is the insured’s burden to
supply the evidence it wants the carrier to consider.
Mayorga’s affidavit states that he is the manager of Storm Recovery and that he
completed temporary patches to the roof of the Subject Property after August 10, 2020.
Doc. 46-3 at 87. He notes that prior to patching the roof, he attempted to find shingles
of like color and pattern to the majority of the shingles on the roof of the Property, but
determined that such shingles had been discontinued, which was the reason the patches
on the roof were of different color shingles than the original. Id.
27

The difficulty with this issue is that Yogeshwar purportedly did not raise line of
sight concerns during the appraisal because Strombeck or Marske allegedly told Roberts
that the contractor had to take it up with the insurer post-appraisal for supplementing the
line of sight. Doc. 44-3 at 23-24. Therefore, the fact that Yogeshwar did not present
evidence concerning line of sight does not entitle Society to summary judgment, as there
is a fact issue regarding whether the alleged representations were made to Roberts, which
arguably could have affected Roberts’ and Yogeshwar’s advocacy for application of the
line of sight rule. For the same reason, the appraisal decision is not dispositive of this
issue as the appraisal itself was arguably affected by representations by Strombeck and/or
Marske.
Society’s other two arguments focus on the non-uniformity of the roof. According
to Mayorga’s affidavit, he could not find similar color and pattern of shingles to patch
the roof after the derecho and determined that the matching shingles had been
discontinued.

While I agree this affidavit is somewhat conclusory, Yogeshwar has

submitted evidence to explain the lack of uniformity and that it occurred after the loss. 25

25

Society argues that Yogeshwar does not dispute that the damage was preexisting and that no
information was timely provided to support application of the line of sight rule. However,
Society’s Statement of Undisputed Material Facts does not include any statement of fact related
to such for Yogeshwar to admit or deny and offer evidence in support. See Doc. 42-2. The
statement of fact Society cites in support of the lack of uniform appearance before the claimed
loss is based on what the appraisers saw at the time of the appraisal, which was after the loss.
See Doc. 42-1 (citing ¶ 28 of Society’s Statement of Undisputed Material Facts). The only other
statements of fact that come close are that Strombeck “testified to reviewing photographs of the
property’s roof which reflected both damage to the roof and repair patches predating the August
10, 2020 claimed date of loss” and that “Society requested supporting documentation including,
but not limited to, repair invoices from Plaintiff” and Yogeshwar provided none. Id. With
regard to Strombeck’s testimony, Yogeshwar admitted that Strombeck testified he could see hail
and wind damage from Google Earth photos from June 2015, but denied the balance of the
paragraph as unsupported by admissible evidence. Even if admissible, Yogeshwar has submitted
evidence in the form of Mayorga’s affidavit in rebuttal. With regard to repair invoices,
Yogeshwar admits that Society requested such invoices, but Yogeshwar notes it did not provide
any because it never received an invoice from the contractor who did patchwork after the derecho
and Yogeshwar paid him in cash. Doc. 46-1 at 18-19.

28

As such, there is a fact issue as to whether the non-uniformity existed prior to the date
of loss. In addition, Society has cited no authority that the line of sight regulation does
not apply when an insured patches the roof with non-matching shingles in order to
mitigate damages such that Mayorga’s affidavit would be immaterial. Because there is a
fact issue as to whether there was non-uniformity prior to the date of loss and no authority
providing that the line of sight rule cannot apply when viewing the disputed facts in the
light most favorable to Yogeshwar, Society is not entitled to summary judgment on this
aspect of Yogeshwar’s breach of contract claim.
c.

Interior Damage

Society argues the interior damage was pre-existing and Yogeshwar provided no
evidence of causation of the interior damage. It notes the appraisal panel determined that
the damage was pre-existing and that this is confirmed by the hotel’s Google webpage
imagery depicting the same damage from 2015 and 2019. Additionally, it notes that
Strombeck concluded the derecho did not cause the interior damage because above some
of the damage (such as the fireplace), there was no storm roof damage. Yogeshwar did
not produce any documentation of the scope of the interior claim, an expert causation
opinion or other materials to support its claim. As such, Society argues there was no
breach by declining to compensate the claimed interior damage.
Yogeshwar argues there is a genuine issue of material fact as to the interior damage
because Society relies on inadmissible evidence in the form of photographs dating back
to 2015 when Yogeshwar did not own the property until mid-2019. It relies on Roberts’
testimony that he felt some of the interior damage was proximately caused by the derecho.
I agree with Yogeshwar that this issue presents a disputed fact. Yogeshwar has
come forward with evidence in the form of Roberts’ testimony to support of its breach
of contract claim based on Society’s failure to compensate interior damages:
Q:

And it was your opinion that certain interior damage was caused
from the August 10, 2020 derecho?
29

A:

I felt that, yes.

Q:

And the appraisal inspection occurred December 16, 2021, so over
a year after the date of loss; correct?

A:

Yes.

Q:

And was some of the interior damage that you observed under some
patching areas of the roof?

A:

Yes.

Doc. 46-3 at 7. While Society argues this is rebutted by photographs and Strombeck’s
testimony, it is for a jury to determine which evidence is more credible. As such, Society
is not entitled to summary judgment as to this aspect of Yogeshwar’s breach of contract
claim.
d.

Material Misrepresentation

Society argues the fraud/concealment provision of the Policy forecloses coverage
because Yogeshwar misrepresented in an insurance application that the roof was installed
in 2019.26 It also cites Yogeshwar’s Google webpage, in which interior damage is visible
going back to 2015 and argues Yogeshwar’s misrepresentation concerning the cause of
the interior damage also forecloses coverage.
Yogeshwar argues Society’s argument lacks factual foundation as the cited
insurance application is not signed by anyone from Yogeshwar and Society’s adjuster
admitted she did not know who prepared the document, how it was transmitted to Society
or how Society came into possession of the document.

26

Society bases this argument on Strombeck’s testimony that the roof was original,
approximately 20-years-old and at the end of its useful lifetime.

30

As noted above, there are disputed issues of material fact concerning the interior
damage. With regard to the date of the roof, there is insufficient evidence to conclude
that Yogeshwar willfully misrepresented any material fact on the insurance application.
As noted by Yogeshwar, the insurance application is not signed. See Doc. 42-3 at 185210. There is no evidence as to who made this statement and the context in which it was
made – such as through an agent and what questions were asked of the insured. Society
has not demonstrated it is entitled to summary judgment on this basis.
e.

Failure to Provide Requested Materials

Society argues Yogeshwar did not produce requested supporting documentation
for its Proof of Loss, including repairs, reports of causation, or otherwise as required by
the Policy. It notes that Yogeshwar provided only invoices, but they were untimely and
did not support the amount requested in the Proof of Loss.
Yogeshwar notes that Society’s adjuster, Stellingworth, testified that before she
received the Proof of Loss, she had the documentation to support the Proof of Loss,
including an estimate from Yogeshwar’s contractor for the exterior work and at least one
interior bid by Yogeshwar’s public adjuster, Evan Bruce. After submitting the Proof of
Loss, Yogeshwar’s public adjuster provided additional information and clarification on
the supporting documentation.
Society has not met its burden of proving it is entitled to summary judgment on
this basis. Yogeshwar has come forward with evidence that at the time Society provided
the Proof of Loss form to be completed, Yogeshwar had already provided Society the
Storm Recovery estimate for the exterior and had also provided at least one proposal for
the interior damage. Doc. 46-3 at 74. Stellingworth testified that after Yogeshwar
provided the Proof of Loss, she noted in the file: “No other supporting documentation
with proof.”

Id.

Stellingworth followed up with Bruce, who provided additional

information via email or mail. Id. While Yogeshwar may not have provided sufficient
documentation to support its Proof of Loss, that is different than failing to cooperate
31

under the Policy such that Society was relieved from performing its obligations under the
Policy. Society has not demonstrated it is entitled to summary judgment on this basis.
For all the above reasons, I find there is a genuine issue of material fact as to
Yogeshwar’s breach of contract claim. Society’s motion for summary judgment on this
claim is denied.
3.

Bad Faith

Society argues Yogeshwar’s bad faith claim fails as a matter of law because Society
had a reasonable basis to pay only the appraisal award and there is no evidence that
Society knew it could not reasonably rely on the three-signature appraisal award, its
appointed appraiser, its retained inspector and his two authored reports, its own adjuster’s
personal inspection of the property and Google imagery.
Yogeshwar argues there is a genuine issue of material fact on this claim because
one of the reports Society relied on initially determined there were no storm reports for
Peosta, Iowa on August 10, 2020, yet a later report noted there were significant wind
reports seven miles from the claim location and hail reports twelve miles from the claim
location on the date of the claimed loss. Yogeshwar notes that Society had already
obtained its own wind reports and knew the Property experienced winds in excess of 60
miles per hour on the date of loss. Therefore, Society could not have reasonably relied
on this report. Yogeshwar also relies on evidence that Society failed to investigate
Yogeshwar’s claim of mistake, fraud and/or malfeasance in the appraisal process, failed
to adjust the interior damages after the appraisal panel determined the Property sustained
storm damage and failed to consider application of the line of sight rule after the
conclusion of the appraisal.
To prevail on a first party bad faith insurance claim pursuant to Iowa law, a
plaintiff must show “(1) that the insurer had no reasonable basis for denying benefits
under the policy and, (2) the insurer knew, or had reason to know, that its denial was
without basis.” Thornton v. American Interstate Insurance Company, 897 N.W.2d 445,
32

461-62 (Iowa 2017) (quoting United Fire & Cas. Co. v. Shelly Funeral Home, Inc., 642
N.W.2d 648, 657 (Iowa 2002)). The first element is objective and the second element is
subjective. Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 473 (Iowa 2005).
With regard to the first element, “[a] reasonable basis exists for denial of policy
benefits if the insured's claim is fairly debatable either on a matter of fact or law.”
Bellville, 702 N.W.2d at 473. This issue may be decided as a matter of law. Id. A
claim is “fairly debatable when it is open to dispute on any logical basis . . . . Stated
another way, if reasonable minds can differ on the coverage-determining facts or law,
then the claim is fairly debatable.” Bellville, 702 N.W.2d at 473. Because the first
element’s focus is on whether there was a debatable issue, it is not dispositive if the
insurer’s position was ultimately incorrect. Id. Instead, the dispositive question is
whether a fairly debatable claim existed. Id. When “an objectively reasonable basis for
denial of a claim actually exists, the insurer cannot be held liable for bad faith as a matter
of law.” Id. at 474 (emphasis in original). Courts do not weigh the evidence an insurance
company considered; they determine simply whether evidence existed to justify the
company’s denial of the policyholder’s claim. Id.
Even if a policyholder shows that the insurance company lacked an objective
reasonable basis to deny the claim, bad faith liability attaches only if the insurance
company “knew or should have known that the basis for denying its insured’s claim was
unreasonable.” Id. “An insurer's negligent or sub-par investigation or evaluation of a
claim is relevant to the fact finder's determination of whether the insurer should have
known its denial lacked a reasonable basis.” Id. However, an improper investigation
alone “is not sufficient cause for recovery if the insurer in fact has an objectively
reasonable basis for denying the claim.” Id. (cleaned up).
Society is entitled to summary judgment on Yogeshwar’s bad faith claim.
Yogeshwar cannot, as a matter of law, meet the objective bad faith element that Society
had no reasonable basis for paying no more than the appraisal award. Yogeshwar has
identified one report that it claims incorrectly concluded a lack of storm damage in the
33

area. As Society points out, the court’s job is not to weigh conflicting evidence that was
before the insurer, but to examine whether evidence existed to justify the claim’s denial.
See Thornton, 897 N.W.2d at 465 (“In many cases, a directed verdict or summary
judgment for the insurer dismissing the bad-faith claim may be appropriate because some
evidence existed to justify its denial as a matter of law.”) (emphasis in original). Here,
there was significantly more evidence Society relied on aside from that one report. After
Society had conducted its own investigation, Yogeshwar requested an appraisal pursuant
to the Policy. Each party chose its own appraiser and those appraisers chose an umpire.
While Yogeshwar claims that Society’s appraiser, Strombeck, made misrepresentations
about interior damage and application of the line of sight rule, other evidence provided a
reasonable basis for Society to conclude that the appraisal panel agreed not to consider
those items and that coverage was not otherwise required for those items. That evidence
includes Strombeck’s opinion, two Tekton reports, Stellingworth’s inspection and Google
imagery.

Society’s decision to continue to deny coverage as to those aspects of

Yogeshwar’s claim was based on “some evidence.” Thornton, 897 N.W.2d at 465.
While the objective element is dispositive, Yogeshwar’s claim also fails on the
subjective element. Yogeshwar has provided no evidence that Society knew it could not
rely on the cited evidence in declining to provide coverage for interior damage or based
on the line of sight rule. Again, it relies on the first Tekton report stating there were no
storm reports for damage in Peosta, Iowa on August 10, 2020, and evidence that Society
had obtained its own reports indicating the area of the Property experienced winds in
excess of 60 miles per hour on the date of loss. Doc. 46 at 9. If that report was the only
evidence Society relied on, Yogeshwar may have a colorable argument, but Society cites
several other bases for its decision, all of which have gone unaddressed by Yogeshwar.
Yogeshwar is unable to demonstrate a fact issue as to whether Society knew or should
have known its denial of Yogeshwar’s claim was without basis. Society is entitled to
summary judgment on Yogeshwar’s claim of bad faith.
34

4.

Fraud

Society argues it is entitled to summary judgment on Yogeshwar’s fraud claim
because (1) Yogeshwar relies entirely on its own allegations in the complaint, (2)
Strombeck and Marske are not Society employees and (3) there is no evidence of
misrepresentations, falsity or reasonable reliance by Yogeshwar.
Yogeshwar argues there is a genuine issue of material fact on its fraud claim,
which is premised on Strombeck’s statements during the appraisal that (1) the appraisal
panel could not readjust the interior claim and (2) the application of the line of sight rule
would have to be something Yogeshwar’s contractor took up with Society as a supplement
to the insurance claim after the conclusion of the appraisal.27 It contends that after raising
the issue to Society after the appraisal, Society has refused and continues to refuse to
adjust the interior damages and pay for replacement of the entire roof of the Property
pursuant to the line of sight rule.
Society’s motion raises two issues related to agency: (1) neither Strombeck nor
Marske are Society employees such that Society cannot be liable for any
misrepresentations they may have made during the appraisal and (2) the alleged
misrepresentations were made to Roberts, not Yogeshwar. These issues are dispositive
because the first element of a fraud claim is that the defendant made a representation to

27

Yogeshwar relies on Roberts’ deposition testimony for this claim. However, Society points
out that in response to a discovery request regarding the nature of Yogeshwar’s fraud claim,
Yogeshwar responded “See the allegations contained in Yogeshwar’s Second Amended Petition
for Declaratory Relief, Petition at Law and Jury Demand (ECF No. 37), and the documents
produced in this case.” Doc. 42-3 at 137-38. As Society notes, Yogeshwar cannot rely on
evidence in resistance to this motion that was not previously disclosed as required by Rule 26.
See Fed. R. Civ. P. 37(c)(1)(“If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or
is harmless.”). See also Thomas v. Corwin, 438 F.3d 516, 526-27 (8th Cir. 2007) (“Mere
allegations, unsupported by specific facts or evidence beyond the nonmoving party’s own
conclusions, are insufficient to withstand a motion for summary judgment.”).

35

the plaintiff. See Dier v. Peters, 815 N.W.2d 1, 7 (Iowa 2012).28 Yogeshwar fails to
address these issues, stating only that “[i]t is axiomatic that an entity cannot act, except
through its duly appointed representatives, which in this specific instance was Paul
Strombeck.” Doc. 46 at 11. Yogeshwar has come forward with no evidence or even
argument to support an agency relationship or any other legal theory on which Society
could be held liable for Strombeck’s statements. For instance, there is no evidence that
Society directed Strombeck to make such representations concerning the interior damage
or application of the line of sight rule or even knew about such representations until
receiving Yogeshwar’s letter.
Yogeshwar also misconstrues the burden on summary judgment in arguing that
Society must establish that Strombeck’s statements cannot be attributed to it. Yogeshwar
bears the burden of proving Society’s liability at trial, and thus at the summary judgment
stage. See Celotex, 477 U.S. at 322 (“In our view, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial . . . . The moving party is ‘entitled to judgment as a matter of law’
because the nonmoving party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof.”)
Courts have typically found that appraisers are not agents of the parties who
appoint them. As the Tenth Circuit has explained:
[W]hile the appraisers are appointed by the parties, they are not subject to
the control of the parties. They are not agents in law and ought not to be
in practice. If appraisers were subject to the direction of the parties, the
whole proceeding would be a useless ceremony, for if the parties cannot
agree upon the loss by direct negotiation (and the appraisal clause is
28

The other elements are that the representation was false; the representation was material; the
defendant knew the representation was false; the defendant intended to deceive the plaintiff; the
plaintiff acted in justifiable reliance on the truth of the representation; the representation was a
proximate cause of plaintiff’s damages and the amount of damages. Dier, 815 N.W.2d at 7.

36

operative only in case of disagreement) they could not agree through agents
subject to their direction. Fault of an appraiser is therefore not the fault of
the party appointing him.
Norwich Union Fire Ins. Society v. Cohn, 68 F.2d 42, 44 (10th Cir. 1933). Courts have
recognized an exception to this general rule when an appraiser does not act in a
disinterested manner and collaborates with the insurer or otherwise conducts himself or
herself as an agent for the insurer. See Niagara Fire Ins. Co. v. Bishop, 39 N.W. 1102,
1106 (Ill. 1894) (“If an insurance company selects a man for appraiser who, instead of
acting as such, conducts himself in the interest of the company, and as an agent for the
company, the company will be held responsible for such conduct on his part as inures to
the benefit of the company.”). Yogeshwar has provided no evidence that Strombeck was
not acting in a disinterested capacity such that his actions could be imputed to Society.
Because Yogeshwar has produced no evidence or provided any legal basis for Society’s
liability based on the actions of its selected appraiser, Society is entitled to summary
judgment on Yogeshwar’s fraud claim.
5.

Tortious Interference with Contract

Society argues it is entitled to summary judgment on Yogeshwar’s tortious
interference claim. The elements of tortious interference with contract under Iowa law
are:
(1) plaintiff had a contract with a third-party; (2) defendant knew of the
contract; (3) defendant intentionally and improperly interfered with the
contract; (4) the interference caused the third-party not to perform, or made
performance more burdensome or expensive; and (5) damage to the plaintiff
resulted.
Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 399 (Iowa 2001) (quoting Jones v.
Lake Park Care Ctr., Inc., 569 N.W.2d 369, 377 (Iowa 1997)). Society argues that
Yogeshwar has come forward with no evidence of any improper statement or conduct

37

and no evidence that Society intended to interfere with Yogeshwar’s relationship with
West Bend.
Yogeshwar relies on the deposition testimony of West Bend adjuster, Matt Davis,
that Strombeck told him all damages to the Property that were in existence on December
15, 2021, were addressed during the appraisal panel’s December 16, 2021, inspection.
It argues this contradicts Strombeck’s report to Society that “[t]he appraisal panel agreed
that none of the new damage . . . would be considered in our evaluation.” Doc. 46-3 at
31.

Yogeshwar argues West Bend denied Yogeshwar’s pending claim based on a

December 15, 2021, date of loss due to Strombeck’s representation and a reasonable jury
could conclude Strombeck’s statements caused West Bend to breach its policy with
Yogeshwar.
As with its meritless fraud claim, Yogeshwar relies on statements by Strombeck,
but has set forth no evidence from which a jury could conclude that Strombeck was acting
as an agent of Society such that liability could attach to Society. For the reasons set forth
above with regard to Yogeshwar’s fraud claim, Society is entitled to summary judgment
on Yogeshwar’s claim of tortious interference with contract.
B.

West Bend’s Motion for Summary Judgment
West Bend seeks summary judgment on Yogeshwar’s claims of breach of contract

and bad faith. Yogeshwar does not resist the motion with respect to the bad faith claim
and withdraws that claim against West Bend. See Doc. 49 at 1. As such, I will address
the breach of contract claim only.
West Bend argues Yogeshwar’s breach of contract claim fails as a matter of law
because (1) Yogeshwar’s claimed damage in the amount of $222,622.93 was sustained
prior to the December 2021 storm and any damage that was caused by the December
storm was below the West Bend Policy deductible and (2) Yogeshwar violated the
Policy’s concealment, misrepresentation or fraud provision.
38

Yogeshwar argues that West Bend’s motion is unsupported by any admissible
evidence because much of its evidence lacks foundation under Federal Rule of Evidence
901(a).29 As to the merits, Yogeshwar argues it complied with all the terms of the West
Bend Policy, noting that it does not explicitly require the insured to submit documentation
in support of the claimed amount of damage and West Bend also did not request any such
documentation. In any event, Yogeshwar argues this is immaterial as West Bend had
already determined it would deny the claim and was not relying on any information in
the Proof of Loss.
With regard to the breach, Yogeshwar relies on Mayorga’s declaration as well as
an ITEL report30 he provided to West Bend supporting his position that the roof could
not be repaired but needed to be replaced. Yogeshwar argues that repairs of slopes 1 and
2, as contemplated by the Society appraisal award is insufficient because a contractor will
not be able to remove a row of shingles without damaging the adjoining shingles on the
back slope. Yogeshwar argues it has submitted sufficient evidence to demonstrate a
genuine issue of material fact as to the repairability of the roof and whether West Bend
breached the West Bend Policy by refusing to provide sufficient coverage to remedy the
storm damage.
In order for Yogeshwar’s evidence to be material, it would need to provide
evidence that the roof needed to be replaced (or that repairs exceeded the $10,000
deductible) as a result of the December 15, 2021, weather event. Yogeshwar relies on
Mayorga’s affidavit, in which he states he evaluated the roof after the August 10, 2020,
derecho and after the December 15, 2021, weather event. He observed new damage as
a result of the December 15, 2021, event stating: “After re-evaluation of the roof after

29

As the nonmoving party and party who bears the burden of proof at trial, I am more concerned
with whether Yogeshwar can provide admissible evidence demonstrating a genuine issue of
material fact for a jury.
30

The ITEL report considers only slopes 1 and 2. See Doc. 49-3 at 102-03.

39

the December 15, 2021 weather event, I again determined the roof of the Subject Property
required a full replacement to adequately remedy the storm damage from either the
August 10, 2020 derecho or the December 15, 2021 weather event, as the condition of
the shingles had not improved.” Doc. 49-3 at 240. West Bend argues that even if the
roof needed to be replaced because of the August 10, 2020, derecho, West Bend cannot
be liable if the roof had not been replaced by December 15, 2021. Doc. 52 at 2-3.
The Society appraisal panel determined that the damage from the derecho was
limited to slopes 1 and 2. Mayorga’s opinion does not appear to be based on damage to
the entire roof requiring replacement, but on replacement of some shingles (on slopes 1
and 2) interfering with existing shingles as well as the age of the roof. See Doc. 49-3 at
238, ¶ 6 (“I evaluated the roof of the Subject Property after the August 10, 2020 derecho
and determined that based upon the age of the roof, the roof required a full replacement
to properly remedy the storm damage caused by the August 10, 2020 derecho.”); Id. at
239, ¶ 8 (“Specifically, I observed storm damage to the ridge cap of the Subject
Property’s roofs both after the August 10, 2020 derecho and additional ridge cap damage
after the December 15, 2021 weather event.”); Id. at ¶ 9 (“I understand an appraisal
award was entered for the August 10, 2020 insurance claim, providing for replacement
of the second story front slopes of the Subject Property’s roof only, and includes a new
ridge cap for the second story roof of the Subject Property.”); Id. at ¶ 10 (“Removing
the second story front slopes and ridge cap of the Subject Property will necessarily cause
irreparable damage to the adjoining second story back slopes of the Subject Property.”);
Id. at ¶ 11 (“Specifically, during the removal of the ridge cap, the shingles on the
adjoining second story back slopes of the Subject Property, which are not covered by the
appraisal award, will be irreparably damaged because of their brittle condition.”); Id. at
¶ 12 (“A contractor will not be able to remove a single row of shingles on the adjoining
second story back slopes without damaging the shingles on the row underneath it, which
will have a domino effect of damaging the shingles below that row and so on and so
forth.”) (emphasis in original).
40

In other words, it is not damage from the December 15, 2021, storm that requires
replacement of the entire roof, but the replacement of slopes 1 and 2 and the ridge cap
pursuant to the Society appraisal award, because such repairs will purportedly impact the
adjacent slopes. That issue concerns Yogeshwar’s claim with Society, not West Bend.
Yogeshwar provides no other evidence to suggest that damage to the roof from the
December 15, 2021, storm is both (1) not encompassed by its claim under the Society
Policy and (2) exceeds its $10,000 deductible under the West Bend Policy. West Bend
is entitled to summary judgment on Yogeshwar’s breach of contract claim. 31
VI.

CONCLUSION

For the reasons set forth herein:
1.

Society’s motion (Doc. 42) for summary judgment is granted in part and

denied in part. It is granted as to Yogeshwar’s claims of bad faith, fraud and tortious
interference with contract. Those claims are therefore dismissed. The motion is denied
as to Yogeshwar’s breach of contract claim.
2.

West Bend’s motion (Doc. 43) for summary judgment is granted as to

Yogeshwar’s breach of contract claim, which is therefore dismissed. Because Yogeshwar
has withdrawn its bad faith claim against West Bend, that claim is also dismissed. As
such, no claims against West Bend remain pending in this case.
3.

Yogeshwar’s motion (Doc. 44) for partial summary judgment is denied.

4.

This case shall proceed to trial only on Yogeshwar’s breach of contract

claim against Society.

31

Because West Bend is entitled to summary judgment based on the merits of Yogeshwar’s
breach of contract claim, I find no need to address its alternative arguments concerning the West
Bend Policy’s concealment, misrepresentation or fraud provision.

41

IT IS SO ORDERED this 9th day of July, 2024.

__________________________
Leonard T. Strand
United States District Judge

42