*fn1,The opinion of the court was delivered by: Suhrheinrich, Circuit Judge.,Counsel Argued: Steven G. Silverman, Melamed, Daily, Levitt & Milanowski, Huntington Woods, Michigan, for Appellant. Thomas B. Orlando, Foran, Glennon, Palandech, Ponzi & Rudloff, Chicago, Illinois, for Appellee. ON Brief: Steven G. Silverman, Joseph L. Milanowski, Melamed, Daily, Levitt & Milanowski, Huntington Woods, Michigan, for Appellant. Thomas B. Orlando, Thomas B. Orlando, Foran, Glennon, Palandech, Ponzi & Rudloff, Chicago, Illinois, for Appellee.,EVANSTON INSURANCE COMPANY, PLAINTIFF-APPELLEE, v. COGSWELL PROPERTIES, LLC, DEFENDANT-APPELLANT." />

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Evanston Insurance Company v. Cogswell Properties

May 29, 2012 *fn1

EVANSTON INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
COGSWELL PROPERTIES, LLC, DEFENDANT-APPELLANT.



Appeals from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:09-cv-996--Gordon J. Quist, District Judge.

The opinion of the court was delivered by: Suhrheinrich, Circuit Judge.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

Argued: April 20, 2012

Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

OPINION

This case involves a dispute regarding fire loss on commercial property owned by Defendant-Appellant Cogswell Properties, L.L.C. ("Cogswell Properties"). Cogswell Properties appeals (1) the order of the district court vacating an appraisal award reached by an umpire pursuant to the Michigan appraisal statute, Mich. Comp. Laws § 500.2833(1)(m), on an insurance policy issued by Plaintiff- Appellee, Evanston Insurance Company ("Evanston Insurance") (Appeal No. 10-2075); and (2) the order of the district court granting Evanston Insurance's motion for entry of judgment on the second appraisal (Appeal No. 11-1068). We AFFIRM.

I. Background

A. Facts

In September 2006, Cogswell Properties purchased the vacant "Rock Tenn Paper Mill" site in Otsego, Michigan, in a tax foreclosure sale for $70,000 (the "Building" or "Property"). The Building consists of over twenty interconnected or adjacent buildings and covers approximately 440,700 square feet.

Evanston Insurance issued a first-party property insurance policy to Cogswell Properties effective November 16, 2006 to May 6, 2007, insuring Cogswell Properties against certain Building loss and damage (the "Policy"). The Policy had a Building coverage limit of $1,000,000, subject to coinsurance at 80%.

The Policy contains the following pertinent provisions:

BUILDING AND PERSON PROPERTY COVERAGE FORM

E. LOSS CONDITIONS

2. Appraisal

If we and you disagree on the value of the property or 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 value of the property and 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. 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.*fn2

4. Loss Payment a. In the event of loss or damage covered by this Coverage Form, at our option, we will either:

(1) Pay the value of lost or damaged property;

d. We will not pay you more than your financial interest in the Covered Property.

g. We will pay for covered loss or damage within 30 days after we receive the sworn proof of loss, if you have complied with all of the terms of this Coverage Part and:

(1) We have reached agreement with you on the amount of loss; or

(2) An appraisal award has been made.

7. Valuation

We will determine the value of the Covered Property in the event of loss or damage as follows:

a. At actual cash value as of the time of loss or damage, except as provided in ...


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