Millard Gutter Company v. Continental Casualty Company ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2760
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Millard Gutter Company, a Corporation, doing business as Millard Roofing & Gutter
lllllllllllllllllllllPlaintiff - Appellant
v.
Continental Casualty Company, also known as CNA, doing business as
Continental Insurance; National Fire Insurance Company of Hartford
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: June 18, 2021
Filed: August 16, 2021
[Published]
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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Millard Gutter Company sued Continental Casualty Company and National
Fire Insurance Company of Hartford, alleging that they breached insurance policies
issued to third parties. The district court1 granted summary judgment in favor of the
defendants, and Millard Gutter now appeals.
Millard Gutter is a roofing contractor based in Omaha, Nebraska. Two third
parties, Midwest Screw Products and Dr. David Schroeder, separately hired Millard
Gutter to repair hail storm damage to their buildings. They both signed agreements
authorizing Millard Gutter to coordinate with their respective insurance companies
concerning reimbursement for repairs authorized under the applicable insurance
policies. Midwest Screw was insured by National Fire, and Dr. Schroeder’s practice
by Continental Casualty.
The record shows that Millard Gutter completed all repairs authorized by the
defendants, that the defendants paid all claims Midwest Screw and Dr. Schroeder
submitted for the cost of those repairs, and that Midwest Screw and Dr. Schroeder
then reimbursed Millard Gutter in full for those repairs.2 Millard Gutter nonetheless
claims that the defendants breached the insurance policies “by failing to pay to
Millard [Gutter] all benefits due and owing under the policies.” It argues that the
defendants too narrowly interpreted the scope of Midwest Screw’s and Dr.
Schroeder’s losses, and that additional repairs (and thus additional payments to
Millard Gutter) were warranted under the policies. Because Millard Gutter reads the
authorizations to assign Midwest Screw’s and Dr. Schroeder’s insurance claims to
1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
2
To the extent Millard Gutter continues to argue on appeal that it “was never
paid in full for all work actually performed,” that assertion is not borne out by the
record. The only evidence Millard Gutter offers in support of this claim is a
statement to that effect in James Eggers’s affidavit, which is too vague and
conclusory to create a genuine issue of material fact. See Rose-Maston v. NME
Hosp., Inc., 133 F.3d 1104, 1109 (8th Cir. 1998) (“Conclusory affidavits, standing
alone, cannot create a genuine issue of material fact precluding summary judgment.”).
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Millard Gutter, it contends Millard Gutter had authority to determine what repairs
were warranted. The district court disagreed. It determined that Millard Gutter was
assigned only the proceeds of the insurance claims disbursed by the defendants, not
the claims themselves, and that it therefore lacked authority to determine the scope
of the insureds’ losses and necessary repairs.
We review the district court’s grant of summary judgment de novo, drawing all
reasonable inferences in Millard Gutter’s favor. Turner v. XTO Energy, Inc., 989
F.3d 625, 627 (8th Cir. 2021). Summary judgment is warranted if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To defeat summary judgment, “the nonmoving
party must come forward with ‘specific facts showing that there is a genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(cleaned up).
As a general matter, an insured may assign its post-loss insurance claim
consistent with Nebraska law. See, e.g., Millard Gutter Co. v. Farm Bureau Prop. &
Cas. Ins. Co., 889 N.W.2d 596, 605 (Neb. 2016) (concluding that “the postloss
assignment of a claim under a homeowner’s insurance policy was valid even though
the policy stated any assignment made without the insurer’s consent would be
invalid”); Valley Boys, Inc. v. Allstate Ins. Co., 66 F. Supp. 3d 1179, 1881–82 (D.
Neb. 2014) (applying Nebraska law and reaching a similar conclusion). But the
authorizations in this case, in relevant part, permit Millard Gutter only to “make
demand upon any potentially liable insurance company for payment” of the repair
costs and “to negotiate approval for payment or reimbursement of expenses
associated with any necessary repair work” with the insurers. They also state that
Midwest Screw and Dr. Schroeder authorized their insurers to “make payment
directly to [Millard Gutter], or to name [Millard Gutter] as joint-payee on any
payment.”
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“Under Nebraska law, a court interpreting a contract, such as an insurance
policy, must first determine, as a matter of law, whether the contract is ambiguous.”
Reisig v. Allstate Ins. Co., 645 N.W.2d 544, 550 (Neb. 2002). If the contract terms
are “clear,” a court must accord them “their plain and ordinary meaning as the
ordinary or reasonable person would understand them.” Id. Here, the authorization
terms are “clear,” id., and no reasonable person would construe them to assign
Midwest Screw’s and Dr. Schroeder’s claims to Millard Gutter or to otherwise grant
Millard Gutter the right to determine the scope of damages or loss. Rather, the plain
language of the authorizations permits Millard Gutter only to seek payment from the
defendants and to negotiate the terms of those payments with the defendants.
Accordingly, Millard Gutter lacked authority to determine the scope of the loss or
damage sustained by Midwest Screw or Dr. Schroeder. Summary judgment in favor
of the defendants was therefore warranted.
We affirm the judgment of the district court.
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