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Norwood-Redfield Apartments Limited Partnership v. American Family Mutual Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

February 6, 2018

NORWOOD-REDFIELD APARTMENTS LIMITED PARTNERSHIP, Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This action for breach of contract and vexatious refusal to pay a claim under a business owner's policy of insurance is before the Court on Defendant American Family Mutual Insurance Company's Second Motion for Partial Summary Judgment (ECF No. 47). For the reasons stated below, the motion will be denied.

         BACKGROUND

         For purposes of the motion before the Court, the record establishes the following. Plaintiff Norwood-Redfield Apartments Limited Partnership owns an apartment complex consisting of 32 separate buildings covered by the insurance policy at issue. On December 18, 2010, a fire damaged Buildings 6, 7, and 9. Plaintiff submitted a claim under the policy. Defendant made multiple payments, totaling $2, 897, 896.90, to Plaintiff and third-party contractors for the damage to Buildings 6, 7, and 9. Plaintiff filed this lawsuit on April 5, 2016, seeking further payment under the policy.[1] Plaintiff asserts claims for breach of contract and vexatious refusal to pay.

         On May 18, 2017, the Court[2] granted partial summary judgment in favor of Defendant, holding that Plaintiff was not entitled to recover the full policy limit in lieu of the actual value of the damaged property, and that Missouri's “valued policy statutes” did not require otherwise because not all of the 32 buildings insured under the policy were damaged, and, therefore, Plaintiff's loss was not a “total loss” under the statutes. ECF No. 44.

         According to the parties, the only portions of Plaintiff's claims remaining are for a construction management fee for “extraordinary” repairs and certain supervisory and labor fees that Plaintiff claims to have incurred in connection with repairing and rebuilding the damaged buildings.[3]

         For the purpose of this motion, there is no dispute that the fire damage constituted a “Covered Loss” under the policy, or that Buildings 6, 7, and 9 were part of the “Covered Property” under the policy. The Limit of Insurance under the policy is $31, 773, 600 and applies “to all of the premises described in the Declarations of coverage.” ECF No. 48-2 at 44. The Declarations identify the 32 separate buildings.

         The policy's property coverage provision further states:

         A. Coverage

         We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.

         E. Property Loss Conditions

         5. Loss Payment

         In the event of loss or damage covered by this policy

         a. At our option, we will either

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

         (2) Pay the cost of repairing or replacing the lost or damaged property;

         (3) Take all or any part of the property at an agreed ...


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