CMR Constr. & Roofing, LLC v. Empire Indem. Ins. Co.

CMR Constr. & Roofing, LLC v. Empire Indem. Ins. Co.

Opinion

 [*190]  PER CURIAM:

This case involves a commercial property insurance dispute between Empire Indemnity  [*191]  Insurance Company, the insurer, and CMR Construction and Roofing, LLC, who has been assigned the rights of the insured, The Orchards Condominium Association, Inc. CMR sued Empire for breach of contract, and later moved to compel appraisal and stay litigation. The district court denied that motion, and after discovery it granted summary judgment to Empire. CMR appeals both of those orders.

The Orchards, a condominium association in Naples, Florida, had an insurance policy issued by Empire when Hurricane Irma caused damage to [**2]  31 of its buildings. The policy lets the insured choose to receive one of two types of payment, or both. It can choose to receive the actual cash value, which is the replacement cost minus depreciation; or it can choose the replacement cost value, which is the replacement cost without the deduction for depreciation; or it can make a claim based on both the actual cash value and the replacement cost value if it notifies Empire of its intent to do so within 180 days of the property damage. The policy provides that Empire will not pay the replacement cost value, however: "(1) Until the lost or damaged property is actually repaired or replaced; and (2) Unless the repairs or replacements are made as soon as reasonably possible after the loss or damage."

After Hurricane Irma, The Orchards reported to Empire that its buildings had been damaged. Empire inspected the property and, based on its estimate of the repair cost and factoring in the deductible and depreciation, it paid The Orchards $96,763.53. It is not clear from the record or the parties' arguments why Empire issued this payment, whether it was meant to be for the actual cash value, or whether it was obligated to make this payment [**3]  at all.

After Empire issued that payment, The Orchards assigned its rights to CMR, which was the company that would make the repairs. Then, about five months after Empire's payment to The Orchards, CMR sent Empire an estimate for the replacement cost value, which CMR said was $4,953,000.00. CMR had not completed any repairs. Empire did not pay the amount in CMR's estimate but sent CMR its own estimate and invited questions for its expert's consideration.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.