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American Family Mutual Insurance Company v. Dixon

Court of Appeals of Missouri, Eastern District, Third Division

December 16, 2014

AMERICAN FAMILY MUTUAL, INSURANCE COMPANY, Respondent,
v.
EDWARD DIXON and KATHY DIXON, Appellant

Appeal from the Circuit Court of St. Louis County. Honorable Barbara W. Wallace.

FOR APPELLANTS: David Knieriem, Clayton, Missouri.

FOR RESPONDENT: Larry Hellwig, Maryland Heights, Missouri.

Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs, Gary M. Gaertner, Jr., J., Concurs.

OPINION

Kurt S. Odenwald, Presiding Judge

Page 832

Introduction

Appellants Edward Dixon and Kathy Dixon (" Homeowners" ) appeal from the trial court's entry of summary judgment in favor of Respondent American Family Mutual Insurance Company (" American Family" ). Because the record shows that the issue at dispute in this litigation is whether Homeowners' claims are covered losses under the policy as opposed to the amount of damages resulting from a covered loss, the appraisal provision contained in the insurance policy is not applicable. The issue of whether the Homeowners' claims are covered losses under the policy may not be delegated lawfully to an internal resolution procedure provided in the insurance policy, but may be fully litigated by Homeowners in a court of law. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Factual and Procedural History

Homeowners own a residential property in Maryland Heights, Missouri (" the Property" ) that is insured by an American Family homeowners' insurance policy (" the Policy" ). The Policy contains an appraisal provision, which states, in full:

Appraisal. If you and we fail to agree on the amount of damages as the result of a covered loss, either may demand that the actual cash value and the amount of the loss be set by appraisal. In this event, each party will choose a competent and disinterested appraiser within 20 days after receiving a written request from the other. The two appraisers will choose a competent and disinterested umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the insured premises is located. The appraisers will appraise the loss, stating separately the actual cash value and loss to each item. 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 within a reasonable time, they will submit their differences to the umpire. Written agreement signed by any two of these three will set the actual cash value and the amount of the loss. We will pay our appraiser. You will pay your appraiser. Other expenses and the compensation of the umpire will be paid equally by you and us.

On April 28, 2012, the Property was damaged in a wind and hail storm. As a result, Homeowners made a claim for coverage with American Family for damage to their concrete driveway, concrete porch, and wood deck.[1]

In a letter dated August 2, 2012, American Family informed Homeowners that they did not find sufficient storm-related damage to warrant repair or replacement of the concrete driveway or porch. Specifically, American Family stated: " We have inspected your property twice and have failed to discover sufficient damage to warrant the additional repairs shown on your contractor's estimate, or any storm related damage that would ...


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