Cody Christopherson v. American Strategic Insurance C ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2831
CODY CHRISTOPHERSON,
Plaintiff-Appellant,
v.
AMERICAN STRATEGIC INSURANCE CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:19-cv-00202-JPS — J. P. Stadtmueller, Judge.
____________________
ARGUED FEBRUARY 12, 2021 — DECIDED JUNE 3, 2021
____________________
Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Cody Christopherson
has appealed from a grant of summary judgment in favor of
his home insurance company, defendant American Strategic
Insurance Corporation, known as ASI. We affirm. In the sum-
mer of 2018, two trees fell on plaintiff’s home, three months
apart, resulting in its total destruction. The undisputed facts
show that the insurer paid all sums owed to plaintiff, includ-
ing the policy limits for total destruction of his home and all
2 No. 20-2831
other claims that he submitted with documentation for costs
actually incurred.
I. Factual and Procedural Background
A. The Falling Trees and Plaintiff’s Insurance Claims
Because plaintiff Christopherson appeals from a grant of
summary judgment, we must view the evidence in the light
reasonably most favorable to him and give him the benefit of
conflicts in the evidence. Greengrass v. Int’l Monetary Systems
Ltd., 776 F.3d 481, 485 (7th Cir. 2015). Accordingly, we do not
vouch for the objective truth of every fact that we must as-
sume to be true for purposes of the appeal. KDC Foods, Inc. v.
Gray, Plant, Mooty, Mooty & Bennett, P.A., 763 F.3d 743, 746
(7th Cir. 2014).
1. June 5: The First Tree Falls
On June 5, 2018, a tree fell on plaintiff’s house. That same
day, he notified his insurer, ASI. The damage occurred during
the policy year that ran from August 7, 2017 through August
7, 2018. The 2017–18 policy covered up to $129,000 in damages
to the dwelling, $64,500 in damages to personal property, and
$12,900 for loss of use, also referred to as additional living ex-
penses.
On June 6, the insurer sent independent claims adjuster
Chris Holzem to inspect plaintiff’s property. Holzem found
that the house was uninhabitable as a result of damage to the
roof, plywood sheathing, and a sewer vent pipe. Plaintiff then
contacted the insurer to ask about receiving payments to
cover additional living expenses. The insurer’s claims ad-
juster, Michael Ortega, responded that plaintiff should first
provide the insurer with receipts for any such expenses in-
curred. The 2017–18 policy provided that if a covered loss
No. 20-2831 3
caused the insured’s residence to become uninhabitable, the
insurer would cover any necessary increase in living expenses
he incurred to maintain his normal household standard of liv-
ing, up to a limit of $12,900.
Based on Holzem’s estimate, the insurer determined that
the actual cash value of the damage the first tree caused to
plaintiff’s house was $6,695. The replacement cost was
slightly more: $6,829. The 2017–18 policy provided that the
insurer would “pay no more than the actual cash value of the
damage until actual repair or replacement is complete.” On
July 6, the insurer paid plaintiff $11,081. That sum included
the replacement cost of $6,829, plus a tree-removal fee and
miscellaneous costs for emergency services and tarps. Ortega
notified plaintiff of the payment in an email that day, and he
again reminded plaintiff that the insurer would require re-
ceipts for additional living expenses.1
On July 16, an independent adjuster hired by plaintiff,
Keye Voigt, notified the insurer’s Ortega that plaintiff had
been displaced from his home and needed additional living
expenses. Voigt offered to email plaintiff’s receipts to the in-
surer, but the record does not include evidence that either
Voigt or anyone else actually sent any such receipts to the in-
surer.
In July 2018, plaintiff hired an independent investigator,
Brian Hintze, to estimate the cost of repairing the roof damage
caused by the first tree. Hintze’s estimate was $37,515. Plain-
tiff did not provide Hintze’s report to the insurer until Decem-
ber 2018, months after the second tree had fallen and the
1 In December 2018, the insurer also paid plaintiff $2,557 to repair wa-
ter damage that had been part of his June 5 claim.
4 No. 20-2831
house was already a total loss. Plaintiff never carried out the
repairs Hintze had proposed.
On August 1, Voigt again emailed the insurer requesting
additional living expenses on behalf of plaintiff, as well as
payment for emergency services, installation of tarps, and
tree removal. The next day, the insurer’s claims adjuster, Su-
san Rochford, responded to Voigt’s email and explained that
the insurer had already paid plaintiff for the stated losses. She
asked Voigt to call her back regarding the additional living
expenses.
On August 7, plaintiff’s 2017–18 policy expired and the
2018–19 policy became effective. The 2018–19 policy offered
slightly more coverage than its predecessor: up to $135,000 for
damage to the dwelling, $67,500 in damages to personal prop-
erty, and $13,500 for additional living expenses.
Also on August 7, Voigt returned Rochford’s call. Armed
with Hintze’s estimate—which, recall, the insurer did not
know about at the time—Voigt told her that plaintiff’s entire
roof needed to be replaced. Rochford responded that the in-
surer would send an engineer to assess the damage.2 Voigt
also expressed frustration that, up to this point, the insurer
had not paid plaintiff’s additional living expenses. Again, at
that time, neither Voigt nor plaintiff had submitted receipts
for costs incurred for additional living expenses.
On August 17, the insurer began advancing additional liv-
ing expenses to plaintiff. In all, the insurer paid him $26,037
for additional living expenses, exhausting the limit under the
2 The insurer’s structural engineer completed his damage report on
August 23. The second tree fell on August 28, and the insurer did not act
on that report.
No. 20-2831 5
2017–18 policy, and all but $363 under the limit of the 2018–
19 policy.3
2. August 28: A Second Tree Falls
On August 28, a second tree fell on plaintiff’s house. He
notified the insurer on August 30. On November 21, the Vil-
lage of Richfield issued an Order to Raze and Remove Build-
ings from plaintiff’s property by January 5, 2019. The Order
was authorized by Wisconsin Statute § 66.0413(1)(b)(1), which
empowers local governments to order an owner to raze a
building that is “dangerous, unsafe, unsanitary, or otherwise
unfit for human habitation and unreasonable to repair.” See
also § 66.0413(1)(c) (establishing presumption of unreason-
ableness to repair in certain circumstances, including when
repair costs would exceed 50 percent of building value).
On December 4, 2018, plaintiff’s adjuster Voigt submitted
to the insurer: (i) a summary-of-loss sheet estimating the loss
caused by the August 28 tree fall at $141,454; (ii) Hintze’s
$37,515 estimate for repairing the roof after the first tree’s
damage; (iii) a tree-removal invoice totaling $1,500; (iv) a
demolition proposal totaling $6,884; (v) an invoice for fire and
water restoration totaling $1,448; and (vi) the Raze Order. Af-
ter accounting for payments already made under the 2017–18
policy, plaintiff demanded $130,126 under the 2018–19 policy.
The insurer did not provide plaintiff with the requested
demolition payment by the January 5, 2019 deadline for raz-
ing the house, so he razed the house by himself. He did not
3 The insurer did not provide any payments to plaintiff for additional
living expenses for the period of June 5 through August 16, 2018.
6 No. 20-2831
provide the insurer with invoices for the cost of razing his
house, including any claims for his own labor.
B. Plaintiff Files Suit
On January 9, 2019, plaintiff Christopherson filed suit in
state court against insurer ASI alleging breach of contract and
bad-faith denial of policy benefits. Plaintiff alleged that the in-
surer had wrongfully delayed investigating his claims and, as
of the time the complaint was filed, had refused to pay his
claims. The insurer removed the case to federal court based
on diversity jurisdiction.
On February 27, plaintiff’s counsel sent an email to the in-
surer’s counsel stating that, excluding the personal property
losses and additional living expenses that had yet to be deter-
mined, plaintiff’s “undisputed losses” amounted to $143,384.
This amount included the $135,000 dwelling coverage limit
under the 2018–19 policy, as well as the $6,884 demolition es-
timate, and the $1,500 invoice for tree removal.
On March 8, the insurer’s counsel notified plaintiff’s coun-
sel that the insurer would pay the requested $143,384. The in-
surer’s counsel noted, however, that the insurer had not yet
received any notice of claims for damage to personal prop-
erty, and he requested documentation of the nature or extent
of any such claims. The record does not reflect that plaintiff
ever submitted a claim for damage to personal property.4
That payment did not end the lawsuit. A slew of discovery
requests, motions for protective orders, and court orders
4Plaintiff first attached an itemized list of unsalvageable personal
property to his response to the insurer’s later motion for summary judg-
ment. The claimed losses totaled $20,851.
No. 20-2831 7
followed. In May 2019, the insurer moved for a protective or-
der denying plaintiff’s discovery requests with respect to his
bad faith claim. The insurer argued that plaintiff was not en-
titled to discovery because he could not establish any under-
lying breach of the insurance policies. The insurer’s opposi-
tion to discovery relied on Brethorst v. Allstate Property & Cas-
ualty Ins. Co., 334 Wis. 2d 23, 798 N.W.2d 467 (2011), which
held that an insured could not proceed with discovery on a
first-party bad-faith claim unless the insured pleaded a breach
of contract by the insurer and the court was “satisfied” that the
insured had either established a breach or could do so in the
future. Id. at 28–29, 798 N.W.2d at 470.
The insurer’s theory was simple: to allege breach of the
policies, plaintiff had to allege a wrongful denial of benefits,
but he could not do so. By then, the insurer had already paid
the full limits of the 2018–19 policy, plaintiff’s claims under
the 2017–18 policy, and his additional living expenses under
both policies. Payment of those benefits, the insurer reasoned,
foreclosed any claim for breach.
The district court granted the insurer’s motion. Delay, the
court explained, could not form the basis of a breach of an in-
surance policy under Brethorst, and plaintiff had failed to cite
any authority to the contrary. The court determined that a sin-
gle material question remained: whether plaintiff could prove
any breach by the insurer. So far, the court concluded, plain-
tiff had not shown that he could.
Plaintiff moved to reconsider on the discovery issue. The
court denied his motion. The insurer then moved for sum-
mary judgment. Its motion was brief, but its brevity was not
unwarranted. By that time, the court was well acquainted
with the parties’ positions.
8 No. 20-2831
In opposing summary judgment, however, plaintiff com-
pletely changed his tune. For the first time, he attempted to
argue breach of contract. He identified six policy provisions
that the insurer had allegedly breached and seven disputed
material facts that he said precluded summary judgment. He
argued that the insurer breached the 2017–18 policy by failing
to pay: (i) $37,515 for roof reconstruction (the Hintze esti-
mate); (ii) $2,580 for damage to siding, roofing, and windows;
and (iii) additional living expenses between June 5 and Au-
gust 16, 2018. He also argued that the insurer breached the
2018–19 policy by failing to pay $13,500 in demolition ex-
penses after the Raze Order was issued. Finally, he argued
that the insurer breached both policies by failing to pay
$20,851 for damage to personal property.
In its reply brief, the insurer addressed plaintiff’s new ar-
guments. With respect to the Hintze estimate for roof repair,
the insurer pointed out that plaintiff had never completed the
suggested reconstruction. (That was not surprising since the
house was wholly destroyed by the second tree just a couple
of weeks after the estimate was prepared.) The insurer argued
that under the 2017–18 policy, without proof of repair or re-
placement, recovery was limited to the actual cash value of
the damage, which it had already paid. The insurer applied
similar logic to plaintiff’s claims that he was owed $2,580 for
damage to siding, roofing, and windows, and $13,500 for
demolition expenses. The key phrase in the cited policy pro-
visions, the insurer emphasized, was insurance coverage for
“cost you incur.” Because plaintiff had not presented evi-
dence of costs actually incurred but not paid by the insurer,
he could not show a breach.
No. 20-2831 9
On the claim for additional living expenses, the insurer of-
fered two responses. First, plaintiff still had not submitted re-
ceipts for any expenses incurred between June 5 and August
16, 2018. Second, he could not establish wrongful denial of ben-
efits when he had nearly exhausted the limits under both an-
nual policies.
Finally, on plaintiff’s claim that the insurer failed to
compensate him for personal property losses, the insurer
noted simply that such a claim had never been made. While
plaintiff did report water damage on December 12, 2018, he
had not provided the required inventory of damage to
personal property until he filed his response to the motion for
summary judgment—over a year after his initial report of
water damage.
The district court granted summary judgment. The court
agreed with the insurer’s basic point, that its core obligation
under both policies was to pay for expenses as plaintiff in-
curred them and supplied proof. The undisputed facts could
not support a claim of breach, let alone bad faith. This appeal
followed.
II. Analysis
Plaintiff’s arguments have shifted somewhat on appeal
but still have little merit. First, he argues that the Rooker-
Feldman doctrine requires remand to state court for lack of
federal jurisdiction. Second, he argues that the insurer
unfairly raised new arguments in its reply brief in the district
court, depriving him of a fair opportunity to respond. Third,
he insists that lingering factual disputes should have
precluded summary judgment. We address each argument in
turn.
10 No. 20-2831
A. The Rooker-Feldman Doctrine
The Rooker-Feldman doctrine bars lower federal courts
from exercising what would effectively be appellate jurisdic-
tion over final state-court judgments. Lance v. Dennis, 546 U.S.
459, 463 (2006). It is “a narrow doctrine, confined to ‘cases
brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review
and rejection of those judgments.’” Id. at 464, quoting Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284
(2005).
Our account of the facts includes no mention of any state-
court judgment against either of these parties. That silence
might leave the reader wondering what Rooker-Feldman has to
do with this case, let alone why a federal plaintiff would in-
voke it. We have also wondered. The answers are nothing and
for no good reason. Plaintiff answers by asserting that the vil-
lage’s Raze Order was a final and unappealed state-court
judgment. The assertion misunderstands the basics of Rooker-
Feldman. First, the Raze Order issued by the village was not a
state-court judgment but an “administrative order of a munic-
ipal building inspection department directing the razing of a
[destroyed] building.” See Gambrell v. Campbellsport Mutual
Ins. Co., 47 Wis. 2d 483, 490, 177 N.W.2d 313, 316 (1970). Sec-
ond, plaintiff was not a state-court loser. Third, in this insur-
ance dispute, the Raze Order was a given for both sides; nei-
ther side claimed to be hurt by it or challenged it in any way.
The Rooker-Feldman doctrine simply does not apply.
No. 20-2831 11
B. The Insurer’s Alleged Gamesmanship
Plaintiff points out that we and other courts are critical of
parties who raise new arguments in reply briefs that should
have been raised in opening briefs. The general point is cor-
rect. We strongly discourage the type of gamesmanship he de-
scribes. See, e.g., Hess v. Reg-Ellen Machine Tool Corp., 423 F.3d
653, 665 (7th Cir. 2005) (declining to reach plaintiffs’ argument
“because its appearance for the first time in [their] reply brief
means that it is waived”); Coker v. Trans World Airlines, Inc.,
165 F.3d 579, 586 (7th Cir. 1999) (“Even if the point had been
preserved, [plaintiff] failed to develop it until her reply brief,
which again is a day late and a dollar short.”); Cornucopia In-
stitute v. U.S. Dep’t of Agriculture, 560 F.3d 673, 677–78 (7th Cir.
2009) (same). In the typical case, a six-page motion for sum-
mary judgment followed by a fifteen-page reply brief would
raise eyebrows. But this is not the typical case. And plaintiff
was certainly not, as he claims, “blindsided.”
Plaintiff concedes that the insurer raised new defenses in
its reply only because he raised entirely new arguments in his
opposition to summary judgment. Until his response, plaintiff
had not identified a single alleged breach of a policy provi-
sion, despite many opportunities to do so and repeated warn-
ings from the district court that failure to do so would result
in dismissal. His cries of gamesmanship complain about the
effects of his own tactics. If he lacked the chance to rebut the
insurer’s reply, it was his own fault.
Plaintiff argues, though, that we should overlook the tac-
tical problems and allow him to state his case with new argu-
ments on appeal. He argues that, as a matter of law, he is en-
titled to the maximum policy limits of both annual policies
added together. His theory seems to be that he should be paid
12 No. 20-2831
twice for the total destruction of one home. This imaginative
theory was forfeited, and even if we were inclined to overlook
the forfeiture, plaintiff seeks an absurd application of Wiscon-
sin law.
A raze order, such as the one at issue here, triggers Wis-
consin’s “valued policy law.” Wis. Stat. § 632.05. The “valued
policy” statute provides in relevant part:
Whenever any policy insures real property that
is owned and occupied by the insured primarily
as a dwelling and the property is wholly de-
stroyed, without criminal fault on the part of the
insured or the insured’s assigns, the amount of
the loss shall be taken conclusively to be the pol-
icy limits of the policy insuring the property.
Wis. Stat. § 632.05(2). Under that statute, the insurer paid
plaintiff the applicable limit under the policy in effect at the
time the Raze Order was issued: $143,384 under the 2018–19
policy.5 By asking the court to award the applicable limit un-
der the 2017–18 policy, as well, plaintiff essentially argues that
the insurer breached his two policies by not paying him twice
for the destruction of one home. Suffice it to say that the the-
ory is not viable.
C. Whether Factual Disputes Preclude Summary Judgment
Plaintiff also argues that the insurer remains in breach of
both policies for failing to pay several claims: (i) the $37,515
Hintze estimate; (ii) additional living expenses for the time
5To date, the insurer has paid plaintiff $183,307. It paid a total of
$13,886 under the 2017–18 policy, $143,384 under the 2018–19 policy, and
$26,037 in additional living expenses under both policies.
No. 20-2831 13
from June 5 to August 16, 2018; (iii) lost personal property val-
ued at $20,851; and (iv) unspecified compensation for labor
costs associated with demolishing his house. The undisputed
facts defeat all of these specific claims.
Plaintiff’s argument misses the fundamental point of the
policies’ provisions involving reimbursement: the insured
must first incur the expenses and then provide the insurer with
documentation before the insurer is obliged to pay. By his
own admission, plaintiff never carried out the roof recon-
struction for which Hintze estimated the costs. Before anyone
did anything about Hintze’s estimate, and before the insurer
even knew about it, the second tree fell and wholly destroyed
the home. Accordingly, the insurer was obliged to pay only
the actual cash value of the damage by the first tree. It fulfilled
that obligation on July 6, 2018, when it paid plaintiff $11,081
to cover damages to his roof, tree removal, and other ex-
penses.
Plaintiff also could not be entitled to reimbursement for
additional living expenses incurred between June 5 and Au-
gust 16, 2018 because there is no evidence that he actually in-
curred such expenses during those weeks. He never submit-
ted such proof to the insurer. And in any event, the insurer
paid the limit for additional living expenses under the 2017–
18 policy and all but $363 under the limit of the 2018–19 pol-
icy. Regardless of when plaintiff believes the insurer should
have started paying his additional living expenses, it does not
owe him any more.
Plaintiff has also failed to present material factual disputes
on his claims for damage to personal property and unspeci-
fied labor costs for demolishing his house. Put simply, an in-
surer cannot breach a policy for failure to pay a claim that the
14 No. 20-2831
insured never submitted. It is undisputed that the first time
plaintiff notified the insurer of damage to his personal prop-
erty was in his response to summary judgment. (And at the
risk of stating the obvious, a spreadsheet attached to a brief
does not qualify as a claim submitted by the insured to the
insurer.) It is similarly undisputed that plaintiff never submit-
ted a claim for unpaid labor costs. These arguments, too, do
not defeat summary judgment.
The judgment of the district court is AFFIRMED.