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Fortson v. Garrison Property and Casualty Insurance Co.

United States District Court, M.D. North Carolina

October 29, 2019

ELIZABETH V. FORTSON, Plaintiff,
v.
GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          Joe L. Webster United States Magistrate Judge.

         This matter is before the Court on Defendant Garrison Property and Casualty Insurance Company's renewed motion to compel appraisal. (Docket Entry 34.) Plaintiff Elizabeth V. Fortson has filed a response. (Docket Entry 36.) For the reasons stated herein, the Court will grant Defendant's renewed motion to compel appraisal.

         I. BACKGROUND

         Plaintiff was the owner of a vehicle that was a total loss after it was damaged by an at-fault motorist that lacked liability insurance. (Amended Complaint ¶¶ 23-24, 26, Docket Entry 14.) Defendant was her insurance provider at the time of the accident. (Id. ¶ 22.) Defendant paid Plaintiff $6, 962.70 for the vehicle loss, but Plaintiff contends that it improperly deducted $722.00 from the vehicle's value via a “Condition Adjustment.” (Id. ¶¶ 30, 34, 41-43.)

         Central to the dispute regarding the instant motion are two provisions of the insurance policy that governes the parties' agreement. Part C of the policy pertains to coverage for accidents involving uninsured or underinsured motorists. (Docket Entry 10-1 at 20-28.) Part D includes coverage for loss of a covered automobile through a collision. (Id. at 28-33.) Part C provides that “[n]o payment will be made for loss paid or payable to the insured under Part D or any policy of property insurance.” (Id. at 22, 27.) Furthermore, Part D includes a provision for appraisal, stating

If [the insurer and the insured] do not agree on the amount of the loss, either may demand an appraisal of the loss. In this event, each party will select a competent appraiser. The two appraisers will select an umpire. The appraisers will state separately the actual cash value and 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 be binding. Each party will:
1. Pay its chosen appraiser; and
2. Bear the expenses of the appraisal and umpire equally.

(Id. at 32.)

         Plaintiff initiated this action by filing a complaint in state court. (Docket Entry 4.) On March 15, 2019, Defendant removed the complaint to federal court. (Docket Entry 1.) Defendant also filed a “Motion to Dismiss for Failure to State a Claim; Or, in the Alternative, Compel Appraisal and Stay the Case” on March 22, 2019. (Docket Entry 9.) Plaintiff filed an amended complaint and a response to the motion on April 10, 2019. (Docket Entries 14, 15.) In the amended complaint, Plaintiff alleged claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair and deceptive trade practices under North Carolina law. (Am. Compl., 12-13.) Defendant then filed a second motion to dismiss for failure to state a claim on May 6, 2019. (Docket Entry 18.)

         On June 19, 2019, the Court entered an order denying both of Defendant's motions to dismiss for failure to state a claim. (Docket Entry 27.) The Court also denied Defendant's motion to stay and to compel appraisal without prejudice. (Id.) In the order, the Court first declined the motion to stay because appraisal was not likely to resolve Plaintiff's good faith and unfair and deceptive trade practices claims. (Id. at 1-2.) The Court further wrote that “it is not completely clear that the method of calculating [Plaintiff's]] loss is the same under Parts C and D, ”[1] or “that the appraisal provision under Part D is a condition precedent to filing the claims for relief asserted in this matter.” (Id. at 2.) However, the Court also noted that, given “the plaintiff's claims appear dependent on the factual assertion that she was not paid the actual cash value of her car, appraisals may at some point be appropriate if not required.” (Id. at 3.)

         On September 19, 2019, Defendant filed the instant motion, again seeking to compel an appraisal. (Docket Entry 34.) Plaintiff filed a response on October 7, 2019. (Docket Entry 36.) Defendant filed its reply on October 21, 2019. (Docket Entry 39.)

         II. DISCUSSION

         The Court understands Defendant's argument in favor of compelling appraisal to be as follows. First, Part D of the insurance policy, which contains the appraisal provision, applies to Plaintiff's claims in this suit.[2] (See Docket Entry 35 at 8.) Second, the appraisal provision in Part D is mandatory once invoked by either party. (See id.) Finally, ...


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