Delta Upsilon Alumni Corporation et al v. RSUI Indemnity Company

Filing 30

ORDER Granting 16 Motion to Compel; Denying 20 Motion for Summary Judgment; and Denying 22 Motion to Strike. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DELTA UPSILON ALUMNI
CORPORATION, and MICHIGAN
CHAPTER OF DELTA UPSILON,
Case No. 13-cv-13298
Hon. Victoria A. Roberts

Plaintiffs,
v.
RSUI INDEMNITY COMPANY,
Defendants.

_____________________________________________________________________
ORDER
This order addresses three pending motions.
Plaintiffs Delta Upsilon Alumni Corporation and Michigan Chapter of Delta
Upsilon (“Delta”) sue RSUI Indemnity Company (“RSUI”) to compel appraisal to
determine the amount of loss that occurred as a result of a fire that damaged Delta’s
fraternity house on the University of Michigan Campus (Doc. # 16). RSUI responded by
objecting to the motion to compel appraisal (Doc. # 17). Delta filed a motion to strike an
exhibit from RSUI’s response (Doc.# 22). RSUI subsequently filed a motion for
summary judgment (Doc. # 20).
Federal Rule of Civil Procedure 56(a) says a "court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” The burden is on the moving
party to show that no genuine issue of material facts exist, and a court should evaluate
the evidence in the light most favorable to the non-moving party. Gen. Motors Corp. v.
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Lanard Toys, Inc., 468 F.3d 405, 412 (6th Cir. 2006). The moving party must support its
assertion by citing to particular parts of materials in the record, including depositions,
documents, or other materials. Fed. R. Civ. P. 56. However, to create a genuine issue
of material fact, the non-moving party must present more than a mere scintilla of
evidence in support of his position to raise some doubt as to the existence of a fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The Court finds a material question of fact exists as to the amount of loss. The
Court agrees with RSUI’s contentions that the contract is clear in that it is only required
to pay the lesser of the cost to replace or the amount Delta actually spends; however,
there is an issue as to the value of the cost to replace, and the amount that Delta
actually spent. Delta says it has spent over $6,021,514.12; this is more than the
$3,466,425.75 that RSUI says Delta has spent. Moreover, RSUI bases replacement
cost on its own estimate after Delta allegedly failed to submit an appropriate estimate.
Delta says it made several attempts to comply with RSUI’s ever changing demands.
Therefore, it is unclear if RSUI’s cost to replace figure is a proper valuation number; a
genuine issue of material fact exists and summary judgment is denied.
The dispute over the amount of loss is directly related to the motion to compel
appraisal filed by Delta. RSUI says appraisal was not triggered because Delta never
submitted an estimate for RSUI to determine if there was a disagreement. However,
Delta did submit replacement estimates to RSUI. Delta and RSUI corresponded for
years about the content of the estimates, and Delta repeatedly informed RSUI of its
position that it did not agree with its valuations. According to the contract, in the event of
a disagreement about loss the parties will proceed to appraisal. The Court finds
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appraisal is necessary to determine the amount of loss.
Delta filed a motion to strike an exhibit from RSUI’s response to Delta’s motion to
compel appraisal; the Court denies the motion.
Accordingly, the Court: (1) DENIES RSUI’s Motion for Summary Judgment (Doc.
# 20); (2) GRANTS Delta’s Motion to Compel Appraisal (Doc. # 16); and (3) DENIES
RSUI’s Motion to Strike (Doc. # 22).
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: March 6, 2015
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
March 6, 2015.
s/Linda Vertriest
Deputy Clerk

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