Delta Upsilon Alumni Corporation et al v. RSUI Indemnity Company

Filing 36

ORDER DISMISSING CASE Without Prejudice Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DELTA UPSILON ALUMNI
CORPORATION, and MICHIGAN
CHAPTER OF DELTA UPSILON,
Plaintiffs,
Case No. 13-cv-13298
v.
HONORABLE VICTORIA A. ROBERTS
RSUI INDEMNITY COMPANY,
Defendant.
/
ORDER OF DISMISSAL WITHOUT PREJUDICE
On January 25, 2016, the Court entered an Order denying RSUI’s motion for
reconsideration and ordering the parties to proceed with appraisal. ECF No. 35. In April,
the Court inquired into the status of the ongoing appraisal via email, and received a joint
response from the parties that is provided below:
1.
Have you already begun appraisal?
Yes. Each party has appointed its appraiser, and the appraisers are
working to select an umpire. The parties are also working to agree on a
Memorandum of Appraisal to guide the appraisal panel in the appraisal
process.
2.
Will appraisal be binding?
Yes. The Policy provides that a decision agreed to by any two of the
appraisers and umpire is binding. Nevertheless, the appraisal award is
subject to challenge by either party seeking to avoid and set aside the
appraisal award. In the end, the Court may vacate the appraisal award.
3.
When do you expect to complete the process?
While the parties intend to work diligently throughout the appraisal
process, at this time, the parties simply cannot estimate when the process
will be completed. There are too many unknown variables that may affect
the length of the process.
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4.
If appraisal is intended to be determinative, can the Court enter
an order of dismissal on this case?
No. In the event that the appraisers cannot agree on an umpire, the
Policy provides that either party may request that the selection be made
by the Court. In addition, the Policy provides that following an appraisal
award, RSUI still retains its right to deny the claim. Moreover, as noted
above, the appraisal award is subject to challenge and may be vacated by
the Court. Further, while the Court compelled appraisal, granting the relief
sought by Plaintiffs, it is RSUI’s position that its Counterclaim for
Declaratory Judgment remains pending. The Court denied RSUI’s motion
for summary judgment finding a material question of fact exists as to the
amount of the loss and the amount that Plaintiffs actually spent.
While the Court is mindful of the parties preferences, the Court finds it best to
dismiss the present suit. Specifically, there are no certain deadlines for when appraisal
will finish, nor is it certain that there will be any objections to what the parties intend to
be a binding award. Because appraisal is intended to be binding, the Court finds the
counterclaim for declaratory judgment is presently moot, and, thus, dismisses the
counterclaim without prejudice. The Court retains jurisdiction over the case; either side
may file a motion to reopen following appraisal, if necessary.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: May 13, 2016
The undersigned certifies that a copy
of this document was served on the
attorneys of record by electronic
means or U.S. Mail on May 13, 2016.
S/Carol A. Pinegar
Deputy Clerk

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