United States District Court, W.D. Kentucky, Louisville Division
VERANDA GARDENS, LLC and SAWYER CONSTRUCTION & ROOFING, INC., Plaintiffs,
SECURA INSURANCE, Defendant.
MEMORANDUM OPINION AND ORDER
J. Hale, Judge.
September 2016, Plaintiff Veranda Gardens, LLC filed a claim
with its insurer, Defendant SECURA Insurance, alleging that
its property had sustained wind damage. (Docket No. 1-2,
PageID # 8). The site inspector hired by SECURA, Steve Weber,
examined the property and concluded that the damage was not
caused by wind. (Id., PageID # 9) Veranda disagreed
with Weber's assessment and invoked the appraisal clause
of its insurance policy, which allows Veranda and SECURA to
each appoint an impartial appraiser to reexamine the
property. (D.N. 11, PageID # 45) Despite Veranda's
objection, SECURA appointed Weber. (D.N. 1-2, PageID # 9)
Veranda and Plaintiff Sawyer Construction & Roofing,
Inc., the assignee of Veranda's insurance claim, then
brought this action seeking a declaration that SECURA must
select another appraiser because Weber is not
impartial. (Id., PageID # 10) The parties
have now filed cross-motions for declaratory judgment, asking
the Court to determine whether Weber is an impartial
appraiser under the insurance policy. (D.N. 13; D.N. 14)
After careful consideration, the Court finds that Weber is an
September 2015, Veranda obtained a business-protection
insurance policy from SECURA. (D.N. 11, PageID # 44) The
following year, Veranda filed a wind-damage claim with
respect to the roof of its property. (D.N. 1-2, PageID # 8)
Veranda assigned the claim to Plaintiff Sawyer Construction
& Roofing, Inc. (Id.)
retained Rimkus Consulting Group, Inc. to determine the cause
and extent of the reported damage. (Id., PageID # 9)
Rimkus employee Steve Weber examined Veranda's property
and concluded that the damage was not caused by recent or
historic winds. (Id.) After reviewing Weber's
report, as well as reports from other individuals, SECURA
denied Veranda's claim. (D.N. II, PageID # 45)
then initiated the insurance policy's appraisal process.
(Id.) The policy provides that in the event of
disagreement regarding the amount of loss, each party may
select a competent and impartial appraiser to assess the
damage. (Id.) If the appraisers disagree, an umpire
chosen by the appraisers decides which appraisal is correct.
appointed Weber as its appraiser. (D.N. 1-2, PageID # 9)
Veranda contested Weber's appointment, arguing that he is
not impartial due to his prior involvement. (Id.,
PageID # 10) SECURA disagreed and refused to replace Weber.
(Id.) Thus, Veranda and Sawyer filed this action
seeking a declaration that the insurance policy requires
SECURA to withdraw its appointment of Weber and select an
impartial appraiser. (Id.) The parties then filed
cross-motions for declaratory judgment asking the Court to
determine whether or not Weber is an impartial appraiser
under the policy. (D.N. 13; D.N. 14)
the parties filed cross-motions for declaratory judgment, the
Declaratory Judgment Act does not contemplate “motions
for declaratory judgment.” Under the Act, the Court
“may declare the rights and other legal relations of
any interested party seeking such a declaration” where
a party files “an appropriate pleading.” 28
U.S.C. § 2201(a). The Federal Rules “govern the
procedure for obtaining a declaratory judgment under [the
Act].” Fed.R.Civ.P. 57. Thus, motions for declaratory
judgment in declaratory-judgment actions are construed as
motions for summary judgment. State Farm Fire & Cas.
Co. v. Taylor, No. CV 5: 17-360-DCR, 2018 WL 3594973, at
*3 (E.D. Ky. July 26, 2018); Metaldyne, LLC v. JD Norman
Indus., Inc., No. 17-CV-10758, 2017 WL 1395888, at *3
(E.D. Mich. Apr. 19, 2017); Kerns v. Encompass Ins. Co.,
No. 5:10-CV-121-REW, 2011 WL 310210, at *5 n.2 (E.D. Ky.
Jan. 28, 2011).
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” State Farm
Fire & Cas. Co., 2018 WL 3594973, at *3 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986));
see also Fed.R.Civ.P. 56(c). “When reviewing
cross-motions for summary judgment, [the Court] must evaluate
each motion on its own merits and view all facts and
inferences in the light most favorable to the nonmoving
party.” Westfield Ins. Co. v. Tech Dry, Inc.,
336 F.3d 503, 507 (6th Cir. 2003) (citing Taft Broad. Co.
v. United States, 929 F.2d 240, 248 (6th Cir. 1991)).
The mere existence of a scintilla of evidence in support of
the nonmoving party's position will be insufficient;
there must be evidence upon which a jury could reasonably
find for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).
all parties seek a declaration on the issue of Weber's
qualification as an “impartial appraiser” under
the insurance policy. The interpretation of insurance-policy
language is a matter of law for the Court, which will apply
Kentucky law to construe the terms of the policy. Westfield
Ins., 336 F.3d at 507 (citing Stone v. Ky. Farm Bureau
Mut. Ins. Co., 34 S.W.3d 809, 810 (Ky. Ct. App. 2000));
Bays v. Summitt Trucking, LLC, 691 F.Supp.2d 725,
736 (W.D. Ky. 2010) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938)); Morganfield Nat'l
Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895
Kentucky law, where insurance policy terms are not ambiguous,
“the ordinary meaning of the words chosen by the
insurer is to be followed.” Westfield Ins. Co., 336
F.3d at 507 (citing James Graham Brown Found. v. St. Paul
Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky.
1991)). An insurance policy or provision therein is ambiguous
if its meaning is susceptible to more than one reasonable
interpretation. Principal Life Ins. Co. v. Doctors Vision
Ctr. I, PLLC, No. 5:12-CV-00125-JHM, 2014 WL 6751201, at
*6 (W.D. Ky. Dec. 1, 2014) (citing True v. Raines,
99 S.W.3d 439, 442 (Ky. 2003), as amended (Apr. 2, 2003)).
The fact that the parties present competing interpretations
of a term does not render it ambiguous. Vencor, Inc. v.
Standard Life & Acc. Ins. Co., 317 F.3d 629, 635
(6th Cir. 2003); Principal Life Ins. Co., 2014 WL 6751201, at
*7; True, 99 S.W.3d at 442.
the parties contend that “impartial” is
unambiguous but disagree as to how the term should be
interpreted in the context of the insurance policy. (D.N. 13,
PageID # 53-54; D.N. 14-1, PageID # 63, 65-76) Because
“impartial” is not susceptible to multiple
reasonable interpretations, the ...