2008 WI App 116
court of appeals of
published opinion
Case No.: |
2007AP1992 |
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Complete Title of Case: |
†Petition For Review Filed |
Opinion Filed: |
June 3, 2008 |
Submitted on Briefs: |
May 6, 2008 |
Oral Argument: |
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JUDGES: |
Curley, P.J., Wedemeyer and Fine, JJ. |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of John V.
McCoy and Chad R. Levanetz
of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was
submitted on the brief of Monte E. Weiss and Charles W. Kramer of Deutch & Weiss, LLC, |
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2008 WI App 116
COURT OF APPEALS DECISION DATED AND FILED June 3, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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The Farmers Automobile Insurance Association, Plaintiff, v. Union Pacific Railway Company, Defendant. ------------------------------------------------------------ Joseph P. Donaubauer, Plaintiff-Appellant, v. The Farmers Automobile Insurance Association, Defendant-Respondent, Union Pacific Railroad Company, Defendant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 FINE, J. Joseph P. Donaubauer appeals orders dismissing on summary judgment his claims against The Farmers Automobile Insurance Association, his home insurer. He contends that the circuit court erred in: (1) not relieving him from his agreement to submit his dispute with Farmers to the insurance policy’s appraisal process; (2) not allowing him to depose the appraisers and a consultant hired by them; (3) refusing to vacate or modify the appraisal valuation; (4) dismissing his bad-faith claim against Farmers; and (5) dismissing his breach-of-contract claim against Farmers. He also argues that the circuit court’s grant of summary judgment unlawfully deprived him of his right to a jury trial and that the circuit court denied him due process by not allowing him discovery on his bad-faith claim. We affirm.
I.
¶2 Donaubauer owned a house that was totally destroyed by a fire triggered by one of the Union Pacific Railroad Company’s trains on April 15, 2003. The railroad is not a party to this appeal. Farmers paid some $530,000 in fire-loss claims to Donaubauer. Donaubauer’s Farmers policy had a Home-Guard-replacement-value endorsement, and Donaubauer made an additional claim to cover what he asserted was his home’s replacement cost. The endorsement reads, as material:
“Replacement value” means the current cost at time of loss, without deduction for depreciation, to replace the damaged, destroyed or stolen property with articles of like kind and quality.
.…
We will not be liable for any loss under this endorsement until actual repair or replacement is completed.
When Farmers would not pay
upfront what Donaubauer wanted, he started this lawsuit on April 12, 2004,
alleging breach of contract, bad faith, as well as some claims that are not
pursued on this appeal, because the insurance company would not pay what
Donaubauer asserted was the “actual replacement value of the home,” which the
complaint alleged “exceeds $553,000.”
Subsequently, by letter dated
If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire.… The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be 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 set the amount of loss.
Farmers’s
In the event that your Client disagrees with The Farmers Automobile Insurance Association’s analysis of the amount of loss as set forth herein, then it hereby demands appraisal as the agreed upon mechanism to resolve the dispute.
….
If you or your Client disagrees with the analysis set forth herein, please let me know, in writing, the legal and factual basis for the disagreement.
Farmers’s letter named its appraiser.
¶3 On March 25, 2005, Donaubauer’s lawyer sent a facsimile letter to Farmers’s counsel asking for a tolling of the appraisal clause’s twenty-day response period because Donaubauer had just had “very serious heart surgery.” Farmers agreed to the delay.
¶4 By letter dated
¶5 Donaubauer later had a change of heart, and in a letter dated September 29, 2005, his lawyer wrote to Farmers’s counsel that although Donaubauer “is willing to continue forward with the appraisal process,” that willingness was now conditioned on it “not being conducted pursuant to the insurance contract,” and only “as long as it is considered a part of the mediation process and is not binding in any way.” The letter asked Farmers’s counsel to “advise if your client agrees with the above conditions.” Farmers did not agree.
¶6 Farmers asked the circuit court to enforce Donaubauer’s
agreement to use the appraisal process.
During the hearing on that motion, Donaubauer’s lawyer acknowledged that
Donaubauer had agreed to use the appraisal process but that the lawyer later
discovered a case, Lynch v. American Family Mutual Insurance Co., 163
¶7 On
II.
¶8 We review de novo a
circuit court’s grant of summary judgment. Green Spring Farms v. Kersten, 136
¶9 Summary judgment must be granted if “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Wis. Stat. Rule 802.08(2). Thus, we disregard facts about which there may be a dispute when those facts are not material to the issue. Further, the party opposing summary judgment “must set forth specific facts showing that there is a genuine issue for trial,” Rule 802.08(3), and has the burden to show the facts that establish the elements on which that party has the burden of proof at trial, Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 290–291, 507 N.W.2d 136, 139 (Ct. App. 1993). We address the issues presented by this appeal in turn.
A. Appraisal.
¶10 Donaubauer makes essentially two arguments in connection with the appraisal issue. First, he argues that he never agreed to the appraisal process, and “[e]ven if” he did, he only agreed to “a non-binding appraisal.” Second, he contends that there was a “mutual mistake of law” as to whether Farmers could in light of Lynch legitimately request an appraisal after Donaubauer filed this lawsuit.
¶11 As we have seen, Donaubauer not only initially agreed to the
appraisal process requested by Farmers but also named his appraiser. It is traditional to say that an agreement is
made when there is a “meeting of the minds.”
Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co.,
206
¶12 In connection with Donaubauer’s mistake-of-law contention, he argues that had his lawyers known of Lynch before he agreed to Farmers’s request for a valuation appraisal under the policy he might not have agreed. Although a mistake as to the legal effect of an agreement might in appropriate cases justify relief from that agreement, Shearer v. Pringle, 203 Wis. 164, 168–172, 233 N.W. 623, 625–626 (1930), we are not aware of any authority that permits a party to withdraw from an agreement based on that party’s ignorance of case law that might have affected a decision whether to enter into that agreement. A rule that allowed a party to undo an agreement based on what was discovered during post-agreement legal research would make all agreements hostage to agreement-remorse. Further, insofar as Donaubauer contends that he and his lawyer were misled by the assertion in the March 22, 2005, letter from Farmers’s counsel that said that the policy required Donaubauer to resort to the appraisal process, merely reading the clause would have put them straight—as we have seen, its clear language did no such thing.
¶13 In any event, whether to relieve a party from an agreement is
within the circuit court’s discretion. Id.,
203
B. Discovery.
¶14 Donaubauer does not contend that the appraisal process was infected by either fraud or bad faith. Rather, he alleges that the valuation was tainted by what he contends were misunderstandings and lack of specificity underlying some of the appraisers’ assumptions. In support of his attempt to depose the appraisers and the consultant they hired, Donaubauer presented to the circuit court some of the communications between the appraisers and ten questions his appraiser asked him about his house as well as Donaubauer’s answers. The communications reflect a normal deliberative process, and, as we show below, are not sufficient to warrant vacatur of the appraisers’ valuation. Thus, as we also explain, the circuit court correctly prevented Donaubauer from pursuing discovery. First, a little background.
¶15 Lynch explained the function of the appraisal process in the insurance-policy context:
Although the words “appraisal” and “arbitration” are occasionally used interchangeably, there is a distinction between the two terms. Specifically:
An agreement for arbitration, as that term is now generally used, encompasses the disposition of the entire controversy between the parties upon which award a judgment may be entered, whereas an agreement for an appraisal extends merely to the resolution of the specific issues of actual cash value and the amount of loss, all other issues being reserved for settlement by negotiation, or litigated in an ordinary action upon the policy.
Generally, and unless the parties’ contract provides to the contrary, an arbitration panel is given quasi-judicial responsibilities, while appraisers are charged with “ascertainment of facts ..., which requires neither hearing nor the exercise of judicial discretion.”
[T]he appraisal process is a means of alternate dispute resolution. It is designed to effectively and cost[-] efficiently resolve disputes over the amount of an insured’s loss. By doing it this way you avoid all of the difficulties that you encounter in litigation with all of our procedural rules, our evidentiary rules. It is less[-]formal than a court proceeding, yet it is designed to give finality.
Like arbitrators governed by
ch. 788, appraisers are thus decision-makers outside of the formal judicial
process. Accordingly, it is appropriate
to look to how discovery is handled in connection with arbitration because the
two methods of dispute-resolution are analogous and there is no direct law on
whether someone dissatisfied with an appraisal under a clause authorized by §
631.85 may depose the appraisers and those consultants from whom the appraisers
may have sought guidance. See Fahy
v. Fahy, 630 A.2d 1328, 1332–1333 (
¶16 As noted, formal arbitration in
(1) In either of the following cases the court in and for the county wherein the award was made must make an order vacating the award upon the application of any party to the arbitration:
(a) Where the award was procured by corruption, fraud or undue means;
(b) Where there was evident partiality or corruption on the part of the arbitrators, or either of them;
(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced;
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
Wis. Stat. § 788.10(1).
As noted, Donaubauer does not even allege that any of the matters
encompassed by § 788.10(1)(a)–(c) are
present in this case. See Diversified
Mgmt. Servs., Inc. v. Slotten, 119
¶17 The dispute in Dechant
involved a car that was destroyed by fire.
¶18 Koepke v. E. Liethen Grain Co., 205
Contentions such
as that the arbitrators misconceived the real issue as to responsibility for an
item of damage, or that they failed to duly regard the technical legal
requirements as to satisfying the burden of proof, or otherwise decided an
issue contrary to law or the technically relevant or competent evidence, do not
warrant vacating their award.
.…
Likewise, the award is not necessarily fatally defective because the
arbitrators failed to find as to fourteen of the thirty-one items of damages
asserted by the respondent. The latter may
have been prejudiced, and might have complained because of that failure. As the arbitrators, after the submission of
all of respondent’s thirty-one items, finally concluded in their award that the
net amount owing to appellants was $1,725.49, the issues relating to the
fourteen items, as to which no allowance to respondent was made in the award,
are deemed decided adversely to respondent. Even if the omission to find as to those items
was due to a mistake on the part of the arbitrators, nevertheless the omission
was in effect a disallowance of those items, which became final and conclusive
when the award was made and proper notice thereof was given to the interested
parties.
Koepke, 205
¶19 The significance of all this to the “discovery” issue is that
absent a showing of some species of fraud, arbitrators may not impeach their
awards.
C. Vacatur
or modification of appraisal valuation.
¶20 Donaubauer complains that the circuit court erred in refusing to either vacate the appraisal valuation or modify it. He complains that there were discrepancies between what he contends the appraisers should have included in the valuation and what they did include. Confusing the issue was that the consultant retained by the appraisers presented to Donaubauer a proposal as to what his company could build based on the replacement-value determined by the appraisers, and apparently that house was some six-hundred square feet smaller than was Donaubauer’s home and also differed from his home in other respects. The appraisers’ report, however, does not reference that proposal; rather, it gives what they unanimously determined to be the replacement value of Donaubauer’s home.
¶21 Significantly, as the circuit court recognized, the pertinent clause in the Home-Guard endorsement promises that Farmers will pay for the home’s “replacement value,” which, as we have already seen, only requires that the “replacement” be “of like kind and quality”—plank-by-plank, brick-by-brick, fixture-by-fixture, or window-by-window congruence is not required. As the circuit court expressed it: “Mr. Dona[u]bauer is not entitled to have duplicated here, under replacement costs, a home identical to the home that he had before.” Indeed, Donaubauer’s lawyer at the hearing the circuit court held on the issue of whether the appraisers’ replacement-value determination should be vacated or modified agreed with the circuit court’s assessment that Donaubauer was only entitled “to something that is reasonably comparable.”
¶22 As we have already seen, appraisers and arbitrators are given
great leeway in using their expertise in fulfilling their responsibilities. See Dechant, 194
D. Bad-faith claim.
¶23 Donaubauer complains that the circuit court improperly granted summary judgment dismissing his bad-faith claim against Farmers. The essence of his contention on appeal is that Farmers improperly rejected Donaubauer’s submissions as to what he asserted was his home’s replacement value.
¶24 As we have seen, Donaubauer’s house was destroyed on
¶25 An insured has a bad-faith action against his or her insurer
when the insurer unjustly refuses to honor the insured’s claim. Anderson v. Continental Ins. Co., 85
¶26 Although Donaubauer recognizes that under Transportation Insurance, the party resisting summary judgment has the burden to set forth specific facts to establish the elements on which that party would have the burden of proof at trial, he contends that the circuit court improperly deprived him of his right to attempt to establish those facts by granting summary judgment without first allowing him to take discovery under Wis. Stat. Rule 802.08(4) (“Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”). A prerequisite to discovery in a bad-faith case is, however, some evidence that what the insurance company did was objectively unreasonable because there is no claim for bad faith if it was not. This is where, as the circuit court recognized, Donaubauer’s bad-faith claim falters.
¶27 First, as the circuit court indicated during one of the many hearings in this matter, Farmers had paid $530,000 to Donaubauer under the policy, apart from the dispute over the Home-Guard endorsement. Second, as we have seen, Farmers offered to settle the replacement-value dispute by offering Donaubauer an amount that was only slightly less than that unanimously set by the appraisers, and, when Donaubauer rejected that offer, increased it by some $90,000. Donaubauer also rejected that. As the circuit court correctly determined, under no sense of the words does this history reflect objective unreasonableness.
¶28 Undoubtedly, Donaubauer would love to scour through Farmers’s
files in an attempt to find some dirt.
Indeed, his lawyer told the circuit court as much during the hearing on
Farmers’s motion for summary judgment on the bad-faith claim: “Mr. Donaubauer went to The Farmers Insurance
Company and said this is what I believe my house is worth. Based on the fact that they disagreed with
him, he should have an opportunity to take a look at exactly why is it that
Farmers disagreed with him.” But absent
an objectively unreasonable response to an insured’s offer of settlement, we
are left with a mere legitimate disagreement, which, as we have seen, is not
enough to state a cause of action on the objective aspect of a bad-faith
claim. See Mowry, 129
E. Breach-of-contract claim.
¶29 Donaubauer argues that Farmers breached its insurance contract with him because it would not pay him the replacement value until he completed the building of a replacement house. Quoting from the Home-Guard endorsement, he says that he only has to agree to rebuild, not actually rebuild. The circuit court rejected that contention and so do we on our de novo review.
¶30 “Our goal in interpreting insurance contracts is to discern and
give effect to the intent of the parties.”
Folkman v. Quamme, 2003 WI 116, ¶16, 264
¶31 The material part of the clause upon which Donaubauer relies follows that part of the Home-Guard endorsement where Farmers says that:
For an additional premium, we agree to the following changes:
.…
We will:
1. Increase the Coverage [for the dwelling] limit of liability to equal the current replacement cost of the dwelling … [with a proviso that is not material];
2. [sets out other coverages that will also be increased];
3. [says that the premium will be adjusted] from the time of loss for the remainder of the policy term.
Immediately under the “We will” clauses is the following:
You agree to:
1. Insure the dwelling to 100% of its replacement cost as determined by us.
2. Accept any renewal adjustments by us of Coverage [for the dwelling] reflecting changes in the cost of construction for the area.
3. Notify us, within 30 days of completion, of any alterations to the dwelling which increase the replacement cost of the dwelling by 5% or more; and
4. Repair or replace the damaged dwelling with equivalent construction and use on the same premises.
It is number 4 upon which Donaubauer hangs his hat to argue that he only has to “agree” to replace his home, not actually do it. This contention, however, ignores the clear unambiguous language of when Farmers will have to pay the replacement value. As we have seen, that clause provides: “We will not be liable for any loss under this endorsement until actual repair or replacement is completed.” Thus, although Donaubauer will have to “agree” to replace his home, Farmers will not have to pay for that replacement until the “replacement is completed.” These two clauses work in tandem—there is no ambiguity and there is no conflict.
¶32 Donaubauer also contends that the rebuild-first clause is
unconscionable. “Unconscionability is an
amorphous concept that evades precise definition.” Wisconsin Auto Title Loans, Inc. v. Jones,
2006 WI 53, ¶31, 290
Substantive unconscionability refers to whether the terms of a contract are unreasonably favorable to the more powerful party. The analysis of substantive unconscionability requires looking at the contract terms and determining whether the terms are “commercially reasonable,” that is, whether the terms lie outside the limits of what is reasonable or acceptable.
¶33 The Home-Guard clause that provides that Farmers need not pay for the replacement of a home until “replacement is completed” is neither substantively nor procedurally unconscionable.
¶34 First, forms relating to “all insurance policies … delivered or
issued for delivery in this state, on property ordinarily located in this
state,” Wis. Stat.
§ 631.01(1), may not be used unless they have “been filed with and
approved by the commissioner [of insurance],” with exceptions that do not apply
here, Wis. Stat. §
631.20(1). Under § 631.20(2), “[t]he
commissioner may disapprove a form upon a finding: (a)
[t]hat it is inequitable,” and, as we have seen, Wis. Stat. § 631.85, which permits
insurance policies to “contain provision for independent appraisal,”
specifically makes those provisions “subject to the provisions of
s. 631.20.” We may affirm a
decision by a circuit court for reasons other than those relied on by that
court even if they were not argued by the parties. State v. Bembenek, 2006 WI App 198,
¶10, 296
¶35 Second, it is perfectly commercially reasonable for the
insurance policy to provide that the company will not have to pay for a home’s
replacement cost until that replacement is complete. Indeed, paying a replacement cost without
ensuring that the insured actually used the money to replace his or her home
would tend to induce some insureds to take the money and run, and would be
commercially unreasonable. As noted by Travelers Indemnity Co. v.
Armstrong, 442 N.E.2d 349, 353 (
The cost of repair may exceed the fair market value of the building, and in the case of very old or obsolescent buildings, the difference may be very substantial. To permit recovery of the cost of repair, without also requiring the repairs to be made usually provides an even greater windfall than is provided when repairs are made. In effect the insured sells his building not at its market value but at a much higher figure and for cash.
¶36 Third, there is nothing in the Record that Donaubauer has been prejudiced by the build-first requirement. Indeed, his lawyer told the circuit court during the pendancy of this action that they needed a value to take to the bank in order to secure a re-building loan: “Until we know what [Farmers] is willing to pay we can’t go to a bank and say we want to build this home.” Donaubauer now has the value, albeit not the one he wants. Indeed, as we have already noted, Donaubauer still asserts that he is entitled to $720,309 under the Home-Guard endorsement. This is how he puts it in his reply brief on this appeal: “In essence, $396,260.75 cannot, no matter how creatively the building is designed, replace a house that had been estimated at $720,309.00.”
¶37 As for procedural unconscionability, there is nothing in the Record that shows that Donaubauer’s agreement to the Home-Guard endorsement and its build-first clause was anything but a voluntary decision by him. Rather, his dispute is, again, with the valuation. Thus, in his brief on appeal in support of his procedural-unconscionability argument, Donaubauer writes that at the time he bought the policy he “could never have anticipated that The Farmers would refuse every good faith offer put forth.” As we have seen, however, Farmers actually offered Donaubauer more than the appraisers determined was the correct replacement value for his home. Insurance companies, as with all businesses, are not, as we have previously noted, “eleemosynary endeavors,” nor should they be. Bruchert v. Tokio Marine & Nichido Fire Ins. Co., 2007 WI App 156, ¶12, 303 Wis. 2d 671, 678, 736 N.W.2d 234, 238.
¶38 Finally, although Donaubauer points to a two-to-one decision by
an intermediate-appellate court in Pennsylvania, Ferguson v. Lakeland Mutual Insurance
Co., 596 A.2d 883 (Pa. Super.
F. Alleged denial of Donaubauer’s
constitutional rights.
¶39 Donaubauer argues that
the circuit court’s grant of summary judgment denied him his constitutional
right to a jury trial. This is a
frivolous contention; the constitutional preservations of the right to a jury
trial do not prevent the grant of summary judgment when there are no genuine
issues of material fact that require a trial.
Steven V. v. Kelley H., 2004 WI 47, ¶35 n.3, 271
¶40 Donaubauer’s contention that he was denied due process because
the circuit court prevented him from pursuing discovery on his bad-faith claim
is similarly without merit. “To simply
label an alleged procedural error as a constitutional want of due process does
not make it so.” State v. Schlise, 86
By the Court.—Orders affirmed.
[1] The colloquy between the circuit court and Donaubauer’s lawyer is instructive:
THE COURT: So there has been an agreement in writing to resolve this case; is that a correct statement?
.…
[Donaubauer’s lawyer]: Yes.
….
THE COURT: So there is a written agreement then. And what you’re seeking basically, and at this point, to set aside that agreement then?
[Donaubauer’s lawyer]: Yes.
[2]
Wisconsin Stat. § 631.20 deals
with the approval of insurance contracts by