UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


Maplebrook Estates Homeowner’s     Case No. 21-cv-01532 (SRN/DJF)         
Association, Inc.,                                                        

     Plaintiff,                                                      
                              MEMORANDUM AND ORDER                   
v.                                 ON PARTIES’ MOTIONS FOR                
                                SUMMARY JUDGMENT                     
Hartford Fire Insurance Company,                                          

     Defendant.                                                      


Alexander M. Jadin and David A. Brandis, Smith Jadin Johnson, PLLC, 7900 Xerxes 
Avenue S., Suite 2020, Bloomington, MN 55431, for Plaintiff.              

Jonathan D. Day and Paulette S. Sarp, 250 Nicollet Mall, Suite 1150, Minneapolis, MN 
55401, for Defendant.                                                     


SUSAN RICHARD NELSON, United States District Judge                        
This matter is before the Court on Defendant Hartford Fire Insurance Company’s 
(“Hartford”) Motion for Summary Judgment [Doc. No. 65] and Plaintiff Maplebrook 
Estates Homeowner’s Association, Inc.’s (“Maplebrook”) Cross Motion for Summary 
Judgment [Doc. No. 73]. For the following reasons, the Court grants in part and denies in 
part each party’s motion.                                                 
I.   BACKGROUND                                                           
A.   Hailstorm and Insurance Policy                                  
Maplebrook  manages  a  non-profit,  common  interest  residential  community  in 
Brooklyn Park, Minnesota. (Notice of Removal [Doc. No. 1], Ex. 1 (Compl.) ¶ 1.) On 
August 5, 2019, a storm caused hail and wind damage to eighty-nine of Maplebrook’s 
buildings. (See Miller Decl. [Doc. No. 68], Ex. 1 (Miller Damage Report); Brandis Decl. 

[Doc. No. 74], Ex. E (Appraisal Award or the “Award”) at 1.) Although various parts of 
the buildings ultimately needed repair, this dispute concerns the repair of damaged siding. 
At the time of the storm, Hartford insured Maplebrook’s buildings under a Special 
Multi-Flex Business Insurance Policy (the “Policy”). (Brandis Decl., Ex. A (Policy) at 
5.)1 The Policy reads, in relevant part, “We will pay for direct physical loss of or direct 
physical damage to . . . Covered Property caused by or resulting from a Covered Cause of 

Loss.” (Id. at 119.) Covered causes of loss include “windstorm or hail.” (Id. at 107.)  
When damaged, Covered Property is subject to “Replacement Cost.” (Id. at 23.) 
For such property, the Policy provides:                                   
[W]e will determine the value of Covered Property at the actual amount 
spent to repair, replace or rebuild the damaged property as of the time of the 
loss or damage, at the same site or another site, subject to the following: 
    a.  We will not pay more for lost or damaged property than the least 
       of                                                            
       (1)  The Limit of Insurance applicable to the lost or damaged 
           property,                                                 
       (2)  The amount it costs to replace, on the same premises, the 
           lost or damaged property with other property:             
           (a)  Of comparable material and quality; and              
           (b)  Used for the same purpose; or                        
       (3)  The  amount  you  actually  spend  that  is  necessary  and 
           reasonable to repair or replace the lost or damaged property 
           with other property:                                      
           (a)  Of comparable material and quality; and              
           (b)  Used for the same purpose . . . .                    
    b.  We will pay you on an Actual Cash Value basis until the lost or 
       damaged property is actually repaired, rebuilt or replaced.   

1 When citing to the Policy, the Court uses the blue docket pagination at the top of 
the page.                                                                 
(Id. at 121.)                                                             
Minnesota  law  requires  all  hail  insurance  policies  to  provide  for  an  appraisal 
process. See Minn. Stat. § 65A.26 (2023). The Policy thus outlines:       
If [Hartford] and [the insured] disagree on the amount of loss, either may 
make written demand for an appraisal of the loss. In this event, each party 
will select a competent and impartial appraiser. The two appraisers will 
select an umpire. If they cannot agree, either may request that selection be 
made by a judge of a court having jurisdiction. The appraisers will state 
separately 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:                                                     
    a.  Pay its chosen appraiser; and                                
    b.  Bear the other expenses of the appraisal and umpire equally. 
If there is an appraisal, we will still retain our right to deny the claim on the 
grounds that it is not covered under this policy.                    

(Policy at 103.)                                                          
Finally, the Policy requires Maplebrook to take certain actions when a covered 
loss occurs. (See id. at 106.) Of note here, Maplebrook must “Protect Property”: 
  Take all reasonable steps to protect the property from further damage, 
  and keep a record of your expenses necessary to protect the Covered 
  Property, for consideration in the settlement of the claim . . . [Hartford] 
  will not pay for any subsequent loss or damage resulting from a cause of 
  loss  that  is  not  a  Covered  Cause  of  Loss. Also,  if  feasible,  set  the 
  damaged property aside and in the best possible order for examination. 

(Id.)                                                                     
B.   Claim Submission                                                
After the hailstorm, Maplebrook initiated the claims process. The record is silent 
as  to  how  Maplebrook  reported  its  loss,  however  on  September  9,  2019,  Hartford 
acknowledged  by  email  receipt  of  the  claim.  (Brandis  Decl.,  Ex.  C  (Sept.  9,  2019 
Email).) In the ensuing months, Maplebrook entered into a series of contracts to assess 
and repair the damage to its buildings.                                   

On September 24, 2019, Maplebrook retained a public adjuster, James Pierce, 
d/b/a Gavnat and Associates (“Gavnat”), to represent it in the insurance claim process. 
(First Sarp Decl. [Doc. No. 70], Ex. C (Authorization Agreement).) Under their contract, 
Mr. Pierce would receive as compensation 10% of the total insurance proceeds paid by 
Hartford to Maplebrook. (First Sarp Decl., Ex. D (Public Adjuster Contract).) 
That same month, Maplebrook hired Capital Construction, LLC (“Capital”) as its 

general  contractor  to  “perform  the  repair  and  replacement  work  specified  in 
[Maplebrook’s]  insurance  company’s  estimate  of  repairs.”  (First  Sarp  Decl.,  Ex.  E 
(Construction  Contract).)  Capital  would  receive  as  payment  the  proceeds  from  the 
insurance settlement and pay Gavnat’s fee out of those proceeds. (Id.; First Sarp Decl., 
Ex. F (Muelken Dep.) at 25:12–26:2, 40:3–12.)                             

Finally,  in  early  October  2019,  Capital  entered  into  an  agreement  with  New 
Concepts Management, Maplebrook’s property manager at the time, to act as a liaison 
between Capital and Maplebrook during the construction project. (First Sarp Decl., Ex. G 
(Project Oversight Contract) at 45; First Sarp Decl., Ex. H (McLarty Dep.) at 17:9–18:4.) 
Per the contract, New Concepts would receive 1% of the payments made to Capital on 

behalf of Maplebrook. (Project Oversight Contract at 46; Muelken Dep. at 27:22–31:1.) 
For its part, Hartford retained J.S. Held, LLC (“J.S. Held”) to determine the nature 
and extent of the hail damage to Maplebrook’s properties. (Miller Decl. ¶¶ 2–3.) 
C.   Loss Estimates and First Undisputed ACV Payment                 
On October 2, 2019, Mr. Pierce sent Mr. Becker “the initial estimate for the roofs 

only.” (First Sarp Decl., Ex. Y.) He noted that Maplebrook had pulled samples of the 
siding to send to ITEL, an independent laboratory that identifies construction materials 
matching those on an existing home. (Id.; Muelken Dep. at 6:11, 61:1–62:2.) To obtain 
the samples for ITEL, Mr. Muelken removed one-foot sections of siding from four or five 
buildings, corresponding to the colors used across Maplebrook’s properties. (Muelken 
Dep. at 61:19–62:2; Brandis Decl., Ex. G (ITEL Report) (analyzing five samples).) Mr. 

Muelken did not conduct a close inspection or make a record of the siding’s condition 
when he removed the samples. (Muelken Dep. at 61:1–65:2.)                 
 ITEL found that four of the five original siding products had been discontinued 
and  were  no  longer  available.  (See  ITEL  Report.)  It  suggested  alternative  siding 
replacements “based on closest match to the original color and physical specifications.” 

(Id.) These alternatives varied in their degree of similarity to the original siding. (See id.) 
Also in October, Sean Miller, building consultant and vice president with J.S. 
Held, and two colleagues inspected Maplebrook’s damaged buildings and recorded the 
number of hail strikes on each elevation. (Miller Damage Report; First Sarp Decl., Ex. K 
(Hartford Statement of Loss) at 7.) One building displayed as many as forty damaged 

siding  areas,  while  some  buildings  had  no  visible  damage.  (Miller  Damage  Report; 
Muelken Dep. at 86:23–87:2.) Still others sustained a handful of hail strikes. (See Miller 
Damage  Report.)  Maplebrook  does  not  dispute  the  overall  accuracy  of  Mr.  Miller’s 
report. (See Muelken Dep. at 87:6–9; First Sarp Decl., Ex. J (Pierce Dep.) at 78:1–25 
(noting that although he found additional hits after Mr. Miller’s report, Mr. Pierce had no 
record of them).)                                                         

On December 13, Hartford’s adjuster Jay Becker sent Mr. Pierce the insurer’s 
Statement of Loss. (Hartford Statement of Loss at 3.) The Statement, based on J.S. Held’s 
preliminary estimates, assessed the undisputed actual cash value (“ACV”)2 of the claim 
as $3,442,778.08: the estimated replacement cost value (“RCV”) of $6,348,856.46, less 
$2,016,078.38 in depreciation and Maplebrook’s $890,000 deductible. (Id. at 5.) Hartford 
issued a payment of $3,442,778.08 to Maplebrook three days later. (See First Sarp Decl., 

Ex. L (Claim Payment Log) at 1.)                                          
Along with the Statement of Loss, Mr. Becker sent J.S. Held’s damage estimate 
reports for each building. (See Hartford Statement of Loss at 6–90.)3 Under the heading 
“Scope  recap,”  J.S.  Held  noted,  “The  vinyl  siding  will  require  some  elevation 
replacement and some spot repairs, or replacement of pieces on other elevations due to 

the direction of the storm.” (Id. at 7.) The “General Conditions” estimate included a line-
item for “Job-site cargo/storage container” with an explanatory note: “Allowance for on 
site storage of salvaged siding, and other materials.” (Id. at 8.) In the individual building 
estimates,  siding-related  line  items  noted,  “Remove  and  replace  one  piece  of  siding 
identified  with  damage  .  .  .  .  Material  provided  by  siding  removed  from  other 

buildings/elevations.” (See, e.g., id. at 16.)                            

2 Actual cash value is “generally the cost to repair or replace an item with material 
of like kind and quality less depreciation or salvage.” (First Sarp Decl., Ex. T at 7.) 

3  Hartford’s  exhibit  only  includes  the  “General  Conditions”  estimate  and  the 
estimate for one building as an exemplar. (See First Sarp Decl. ¶ 12.)    
In his declaration, Mr. Miller explained that J.S. Held’s estimates assumed the use 
of “harvesting” as a siding repair method. (Miller Decl. ¶ 7.) Harvesting, according to Mr. 

Miller, is a common, accepted technique: undamaged siding panels from buildings slated 
for full siding replacement are used to make color-matched spot repairs on buildings that 
sustained  only  minimal  siding  damage.  (Id.  ¶ 5.)  Mr.  Miller  determined  that  the 
Maplebrook  homes  slated  for  full  re-siding  would  provide  “sufficient  amounts  of 
undamaged siding in all (4) colors that could have been harvested and used for insert 
repairs”  in  the  homes  with  less  damage.  (Id.  ¶ 8.)  He  opined  that  the  panels  to  be 

harvested were in a sufficient condition to maintain their structural integrity during the 
process. (Id. ¶ 11.)                                                      
Several months later, in May 2020, Mr. Pierce sent Mr. Becker the loss statement 
prepared  by  Gavnat.  (First  Sarp  Decl.,  Ex.  N  (Gavnat  Statement  of  Loss)  at  2.)4 
Regarding siding, Mr. Pierce wrote, “Your expert enlisted ‘harvesting’ into his bid[.] 

MapleBrook [sic] is claiming full siding replacement due to matching and not accepting 
using used products on their homes.” (Id.) Like Mr. Muelken, Mr. Pierce never inspected 
the siding’s condition to determine its suitability for harvesting. (Pierce Dep. at 77:1–18.) 
D.   Homeowners’ Input and Maplebrook’s Decision                     
At  some  point,  Maplebrook’s  homeowners  learned  of  Hartford’s  proposal  to 

perform harvesting and it became a point of contention in the community. (See First Sarp 
Decl., Ex. H (McLarty Dep.) at 55:19–56:1.) On June 12, 2020, Maplebrook’s then-

4 The record does not contain Gavnat’s overall loss estimate. The exhibit includes 
the email from Mr. Pierce, the estimate for the “General Conditions,” and the estimate for 
one set of buildings as an exemplar. (See Gavnat Statement of Loss.)      
President, Dan Couture, sent a letter to homeowners. (First Sarp Decl., Ex. P (Couture 
Letter).) First, he shared that a special assessment vote had failed to receive the necessary 

two-thirds majority, but that 61% of homeowners had voted in favor. (Id. at 1.) He then 
continued:                                                                
The  message  from  these  homeowners  was  clear:  they  didn’t  want  their 
home repaired with re-used siding and told to wait more than a decade to 
receive the new siding their neighbor will get this year. The Board didn’t 
like that option either—not with half our residents expected to sell their 
homes in the next 10 years. Acknowledging the wishes of this majority of 
voters, the Board consulted with our repair project partners to devise an 
alternative plan which delivers most of our original proposal—without the 
aid of a Special Assessment.                                         
     The  Board  is  pleased  to  announce  that  EVERY  building  at 
Maplebrook  will  receive  new  roofs,  siding  and  trim  this  year.  No 
harvested siding will be used. . . .                                 
     We are enthusiastic about the potential transformation this project 
presents for our nearly 40-year old community. The Board adopted this 
revised plan for three major reasons:                                
     •  Although the Special Assessment did not pass, the large majority 
       of YES voters warranted the Board depart from the ‘fix only   
       what insurance will cover’ option.                            
     •  Maplebrook will save hundreds of thousands of dollars making 
       these  improvements  now  at  Hartford  insurance-negotiated  
       contractor prices over replacement in 10+ years. . . .        
     •  All homeowners will receive the same exterior improvements as 
       their neighbors—no one is left out. Everyone benefits from the 
       improved curb appeal and price appreciation at resale provided 
       by a significantly refreshed exterior.                        

(Id. (emphasis in original).)                                             
The  work  would  be  funded,  the  letter  explained,  entirely  through  insurance 
proceeds and Maplebrook’s reserve funds—rather than through a special assessment on 
the community. (Id.) Mr. Couture finally noted that depending on Maplebrook’s pending 
negotiation over an additional $2 million in siding damages, some additional work that 
had been eliminated could be reconsidered. (Id. at 2.)                    

E.   Second Undisputed ACV Payment                                   
On September 28, 2020, Mr. Becker, on behalf of Hartford, emailed Mr. Pierce 
with  an  updated  Statement  of  Loss.  (First  Sarp  Decl.,  Ex.  T  (Sept.  2020  Hartford 
Statement  of  Loss).)  He  explained  that  Hartford  would  be  making  a  payment  to 
Maplebrook of $2,167,824.68, reflecting $467,365.47 in additional undisputed ACV and 
the release of $1,700,459.21 in applicable depreciation. (Id. at 2.) In the attached formal 

letter, Mr. Becker noted:                                                 
Please  be  advised  that  as  there  remains  a  stark  variance  between  our 
updated  proposed  settlement  and  your  revised  settlement  demand,  we 
respectfully  reject  your  updated  estimate  at  this  time,  however,  our 
investigation  is  continuing  in  an  effort  to  validate  additional  damage 
amounts.                                                             
     As our investigation is continues [sic], we request that any damaged 
property that has not yet been agreed to or accepted be left as is, if feasible, 
to ensure additional inspections of the damages can continue to occur, if 
necessary, in hopes of resolving this amicably.                      

(Id. at 5.) The payment was issued on September 28. (Claim Payment Log at 3.) 
F.   Repairs                                                         
The siding repairs proceeded swiftly.5 According to Mr. Muelken, eighty-eight of 
Maplebrook’s homes had been completely re-sided with new materials by October 2020, 
out of a total of 89 homes subject to repair.6 (Muelken Dep. at 55:4–10.) None of the 

5 The record does not identify when construction began.              

6 In addition to replacing all of the siding, Maplebrook elected to install fan-fold 
insulation beneath it to improve insulation. (Muelken Dep. at 31:5–32:18.) Maplebrook 
existing siding was saved after removal from the buildings and Capital did not notify 
Hartford before its disposal. (Id. at 61:13–17, 66:5–8, 67:23–68:6; Pierce Dep. at 45:10–

14.)                                                                      
Mr. Muelken testified that Capital disposed of the old siding for two reasons:  
One, it’s not common practice for us to store, save or try and salvage old 
siding. Two . . . due to the age, condition of the existing siding, taking the 
siding off was near impossible without damaging [it] . . . [S]o the condition 
of the siding of what was there was not able to be, A, salvaged and not 
damaged,  and  because  of  its  age  did  not  match  other  buildings.  The 
association, because of those factors, before appraisal, decided to pay out of 
pocket to have uniform appearance for all the buildings because of those 
factors.                                                             

(Muelken Dep. at 57:23–58:14.) However, Mr. Muelken subsequently testified that, on a 
case-by-case basis, it is possible to methodically salvage siding for spot repairs at a 
greater labor cost. (Id. at 59:4–60:8, 65:3–66:4.) As noted above, Mr. Muelken did not 
inspect the condition of the siding on each damaged building to assess the feasibility of 
harvesting. (Id. at 61:1–65:2, 66:4.)                                     
Mr. Pierce confirmed that, at the time of the siding’s removal, he knew Hartford 
wanted to perform harvesting. (Pierce Dep. at 46:14–16, 49:6 (“Both Hartford and I were 
aware that there was a dispute.”).) He testified that he believed Maplebrook had no 
responsibility to store old siding after its removal, and that “if [Hartford] wanted it, they 
should have taken it.” (Id. at 46:19–25.) Although he “made Hartford aware that the 
siding was being replaced on multiple occasions,” Mr. Pierce testified that he did not 

paid  directly  for  the  insulation  upgrade  as  a  “betterment”  and  does  not  request 
reimbursement for it from Hartford. (Id.) Maplebrook directly paid for a number of other 
betterments, such as to gutters and certain light fixtures, that were completed during the 
repairs. (Id. at 32:22–35:6.)                                             
inform Hartford that the old siding would be thrown away. (Id. at 47:6–21.) Mr. Pierce 
further testified that Maplebrook did not conserve any samples of the old siding despite 

the likelihood of an appraisal because “[w]e didn’t need it for our presentation.” (Id. at 
50:9–10.)                                                                 
Like  its  commencement,  the  record  does  not  reveal  when  construction  was 
completed  on  all  repairs.  Nonetheless,  Mr.  Muelken  testified  that  all  construction 
suppliers and subcontractors had been fully paid for their work by the end of 2020. 
(Muelken Dep. at 73:19–24.)                                               

G.   Amount of Loss Dispute and Appraisal Hearing                    
On November 13, 2020, Mr. Pierce wrote to Hartford requesting an appraisal, as 
provided for in the Policy, because the amount of loss remained in dispute. (Brandis 
Decl., Ex. D (Nov. 13, 2020).) Maplebrook, through Mr. Pierce, named Adina Bergstrom 
as  its  chosen  member  of  the  three-person  appraisal  panel.  (Id.)  Brad  Langerman, 

Hartford’s appraiser, and Scott Moe, umpire, were the other panelists. (Appraisal Award 
at 2.)                                                                    
The  appraisal  panel  met  in  April  2021.  (Appraisal  Award  at  3.)  Mr.  Pierce 
represented Maplebrook at the meeting, while Hartford did not send a representative. 
(Pierce Dep. at 61:12–14.) Aside from Mr. Pierce’s deposition testimony, there is no 

record of the appraisal panel’s proceedings.                              
Mr. Pierce testified that he raised two areas of dispute to the panel. (Id. at 61:20–
62:6.) The first related to siding repairs: Hartford’s position, as related by Mr. Pierce, was 
that  harvesting  was  the  proper  repair  technique,  while  Maplebrook  sought  full 
replacement of each building’s siding. (Id. at 61:23–62:3.) Because the siding panels had 
been discarded during the repairs, the appraisal panel did not have the opportunity to 

examine  any  samples.  (See,  e.g.,  id.  at  50:3–10.)  The  second  dispute  related  to  the 
difference in construction costs between 2019, when the damage occurred, and 2020, 
when the repairs were made. (Id. at 62:7–10.) In addition to presenting this information, 
Mr. Pierce also submitted to the panel a proposed award form. (Id. at 68:15–23.) 
The proposed award form included tables with rows labeled with construction 
trades (e.g., siding or electrical) and columns labeled “2019 RCV” and “2020 RCV.” 

(First Sarp Decl., Ex. Q (Proposed Award).) According to Mr. Pierce, the panel asked 
why the proposed award form called for two years of cost values. (Pierce Dep. at 69:18–
20.) He responded that he had anticipated a coverage dispute over whether 2019 or 2020 
construction costs applied, and he “wanted [the panel] to be the fact finder.” (Id. at 
69:21–25.)                                                                

H.   Appraisal Panel’s Award                                         
The appraisal panel issued its award (the “Award”) on April 20, 2021. (Appraisal 
Award at 3.) The panel largely adopted the format of the proposed award form, however 
the final document omitted the 2020 RCV columns that Mr. Pierce had included as an 
alternative. (Compare Proposed Award with Appraisal Award.)               

The first page bears a table containing award amounts for ten construction trades: 
                           Award                                     
       (ACV = Actual Cash Value & RCV = Replacement Cost Value)      

      Category      2019 ACV      2019 RCV                           

  General                       $173,538.40                          
  Conditions                                                         
  Roofing                       $3,788,283,65                        
                                [sic]                                
  Gutters                       $151,919.39                          
  Soft Metals                   $637,594.19                          
  Windows                       $267,197.49                          
  Garage Doors                  $55,436.42                           
  Chimney Caps                  $286,000.00                          
  Deck Painting  $83,658.00     $167,300.00                          
  HVAC           $358,437.34    $716,874.68                          
  Permit                        $59,047.47                           

(Appraisal Award at 1.)                                                   
The second page begins with a question taken from Mr. Pierce’s proposed award 
form: “Is there a Reasonable Matching Replacement Siding of like kind and quality 
available?  Please  Check  One  Column  and  Sign.”  (Id.  at  2.)  One  appraiser,  Mr. 
Langerman, checked “Yes”; Ms. Bergstrom and Mr. Moe checked “No.” (Id.) Below that 
question were instructions: if a majority of the panel checked “Yes,” they were to proceed 
to Option 1; if a majority checked “No,” they were to proceed to Option 2. (Id.) The rest 
of the second page is reproduced below:                                   
       Option 1 – There is a reasonable siding of like kind and quality 

         Category             2019 RCV                               

  Siding                N/A                                          
  Electrical            N/A                                          
     Option 2 – There is not a proposed reasonable siding of like kind and 
                           quality                                   

         Category             2019 RCV                               

  Siding                $859,922.12                                  
  Electrical            $35,000.00                                   
  Siding Match          $1,587,654.28                                
  Electrical repairs necessary  $158,774.00                          
  for matching                                                       
  GC Match              $0                                           
  Siding and electrical subtotal: $894,922.12                        
  Siding Match and Electrical Match subtotal: $1,746,428.28          
(Id.)                                                                     
The Award continues on a third page, reproduced in relevant part below: 
                   Appraisal Award Summary*                          

                   2019 ACV        2019 RCV                          

  Sub-Total Claim  $6,756,018.47  $7,198,113.81                      
  O & P          $675,601.84    $719,811.38                          

  Total Award    $7,431,620.31  $7,917,925.19                        

(Id.  at  3.)  Following  the  table  is  a  certification  statement  and  the  three  appraisers’ 
signatures. (Id.) Finally, below the signatures, the Award includes the starred footnote to 
which the Appraisal Award Summary table referred:                         
  *Matching Siding and    2019 RCV         2019 ACV                  
  Electrical:                                                        
                          $1,746,428.28    $1,746,428.28             
                          +10% OH&P        +10% OH&P                 
                          $1,921,071.11    $1,921,071.11             
(Id.)                                                                     
Two members of the panel, Ms. Bergstrom and Mr. Moe, appended substantially 
identical advisory statements indicating the percent-increases in construction costs from 
2019 to 2020 in Brooklyn Park, Minnesota. (Id. at 4–5.) The statements indicated that, 
according to the Xactimate construction pricing database, costs for various trades rose 
anywhere from 3% (general conditions) to 18% (siding). (Id.)              
Mr. Moe sent Mr. Pierce and Mr. Becker an email on April 20 explaining the 
appended statements:                                                      
At the onset of the appraisal hearing for Maplebrook estates Mr. Jim Pierce 
presented an award statement proposing that the panel establish an award 
based on 2019 and 2020 cost pricing. Both appraisers agreed to the format 
of the award statement presented however Brad Langerman appraiser and 
Scott Moe umpire agreed that awarding 2020 cost pricing was a coverage 
question  which  should not  be  a  part  of the  award  statement. Appraiser 
Adina Bergstrom did not agree with that and believed it was a valuation 
issue to be decided. The panel agreed to change the award form by deleting 
references  made  to  2020  pricing  in  the  proposed  award  form  and  then 
umpire  Scott  Moe  and  appraiser Adina  Bergstrom  would  sign  separate 
statements  for  the  percentage  increased  from  2019  to  2020  that  was 
presented at the hearing. Scott Moe and Brad Langerman did not believe 
that the panel had the authority to award amounts related to price increases 
from 2019 to 2020. Mr. Langerman advised he would not sign the 2019  
award if [it] included any 2020 pricing information. Ms. Bergstrom agreed 
to sign the 2019 Award only if statements for 2020 percentage increase 
were issued because she did believe that [the] panel had this authority . . . 
The appraisal panel unanimously agreed that the statements do not make 
any decision regarding policy provisions or define policy coverages and 
that these are coverage questions to be resolved between both sides. Scott 
Moe and Brad Langerman agree that the 2020 percentage increases are not 
a part of the 2019 award amounts.                                    
(First Sarp Decl., Ex. R (Appraisal Award and Statements) at 7.)7         
I.   Additional Payments and Demands for Payment                     
In addition to the two undisputed ACV payments noted above, by the time of the 
appraisal hearing Hartford had made the following payments to Maplewood: $82,208.01 

in additional undisputed ACV for the repair of the HVAC units; $4,161.09 paid in error; 
$344,279.01  in  recoverable  depreciation  minus  the  $4,161.09  paid  in  error;  and 
$201,744.44 in released depreciation for the HVAC repairs as well as permit fees incurred 
during the repairs. (See Claim Payment Log, First Sarp Decl., Ex. U; First Sarp Decl., Ex. 
S.) In total, prior to the appraisal hearing, Hartford had paid Maplebrook $6,243,025.32. 
After the appraisal panel issued the Appraisal Award, Hartford paid Maplebrook 

$298,594.99, representing the difference between the Award’s total ACV, $7,431,620.31, 
and the total ACV already paid. (See Claim Payment Log; First Sarp Decl., Ex. W.) 
On  December  13,  2021,  Maplebrook’s  counsel,  John  Wittmer,  submitted  an 
invoice from Capital to Hartford for $11,038,810.89. (First Sarp Decl., Ex. Z (Dec. 13, 
2020  Capital  Invoice).)  Mr.  Wittmer  explained  that  “Maplebrook  has  completed  all 

repairs relating to the damage. . . . Accordingly, Maplebrook is demanding payment of 
the Replacement Cost Value (“RCV”) of the Appraisal Award, $11,038,810.89, minus 
applicable  deductible  and  prior  payments.”  (Id.  at  2.)  He  declared  that,  even  taking 
Hartford’s position that the “Total Award” is $7,917,925.19, Hartford owes Maplebrook 


7  The  Court  refers  here  to  Hartford’s  award  exhibit.  Although  both  parties 
provided a copy of the Award, only Hartford’s exhibit includes Mr. Moe’s email. 
$486,304.88 in “Payable RCV.”8 (Id. at 2–3.) Mr. Wittmer requested payment within 10 
business days.                                                            

The only line item on the December invoice is “All repairs as outlined in the 
adjusters summary and appraisal award.” (Id. at 4.) When asked to explain the basis for 
the invoice, neither Maplebrook’s President, Mr. McLarty, nor its adjuster, Mr. Pierce, 
could identify the additional post-appraisal repairs to which the invoice corresponded. 
(McLarty Dep. at 60:6–62:4; Pierce Dep. at 82:3–86:7.) Mr. Pierce testified that “there’s 
nothing outstanding and undisputed, though. So I am assuming all monies have been paid 

that’s owed now.” (Pierce Dep. at 85:18–19.) Mr. Muelken, the repair project manager, 
similarly did not know what the invoice represents, testifying that “This was requested 
from Gavant so they can have that to submit to the carrier.” (Muelken Dep. at 109:9–11.) 
He disclaimed any involvement with calculating the amount on the invoice and explained 
that Gavnat came up with the number “based on the scope and appraisal award.” (Id. at 

109:19–25.)                                                               
In 2022, as part of this litigation, Hartford retained Jeffrey A. Nonhof, a Senior 
Executive General Adjuster at Engle Martin & Associates, to provide an expert opinion 
about the viability of harvesting. (First Sarp Decl., Ex. M (Nonhof Report).) In his report, 
delivered on December 16, 2022, Mr. Nonhof opined that “harvesting of undamaged 

siding to facilitate repairs to elevations of similar color and exposure is an acceptable, 

8  Mr.  Wittmer  arrived  at  this  number  through  the  following  calculation: 
$7,917,925.19 (Hartford’s valuation of the RCV of the Appraisal Award) - $890,000 
(Maplebrook’s Policy Deductible) - $6,541,620.31 (Prior payments) = $486,304.88. (Id. 
at 3.)                                                                    
reasonable, and customary repair practice in the insurance and construction industry.” (Id. 
at  3.)  He  further  stated  that  based  on  the  J.S.  Held  summaries,  “more  than  enough 

buildings were designated for replacement to supply the material needed to facilitate 
repairs on the remaining elevations with similar colors and specific elevations. (Id. at 4.) 
Finally,  he  opined  that,  “It  was  contrary  to  custom  practice  in  the  insurance  and 
construction  industry,  for  the  insured  to  replace  all  the  vinyl  siding  and  discard  the 
original, prior to the Appraisal Hearing.” (Id.)                          
To date, Hartford has refused to issue a payment based on the December 2021 

invoice.                                                                  
J.   Remand To Appraisal Panel And Panel’s Clarification             
On August 7, 2023, this Court remanded this matter to the appraisal panel, seeking 
clarification  of  the  panel’s  decision.  Maplebrook  Estates  Homeowner’s Ass’n,  Inc. v. 
Hartford Fire Ins. Co., Case No. 21-cv-01532 (SRN/DJF), 

 (D. Minn. 

Aug. 7, 2023). On November 22, 2023, counsel for Maplebrook submitted a letter to the 
Court including a copy of the panel’s response. (See Clarification Ltr. [Doc. No. 88].) The 
panel answered the questions as follows:                                  
[Question]  1.  “Why  do  you  believe  there  is  no  Reasonable  Matching 
Replacement Siding of the like kind and quality available?”          
     Answer: There were no documents, samples, or witnesses presented 
     at  the  appraisal  hearing  related  to  the  availability  of  reasonable 
     matching siding                                                 
[Question]  2.  “Whether  the  award  includes  the  cost  of  repairing  the 
damaged siding by the method of harvesting or does it include replacing 
siding with new siding on every building?”                           
     Answer: The Appraisal Award Summary includes replacing the hail 
     damaged sides of siding only. The amounts awarded for matching  
     were  included  in  the  *  portion  of  the  award  below  the  panel’s 
     signatures.                                                     
[Question] 3. Whether the Total Award is $7,917,925.19 or $9,838,966.30? 
     Answer:  The  RCV  award  for  direct  hail  damage  is  an ACV  of 
     $7,431,620.31  and  an  RCV  of  $7,  917,925.19.  The  value  of 
     matching  siding  and  related  electrical  repair  is $1,921,071,11 for 
     replacing  the  elevations  of  siding  without  hail  hits  to  obtain  a 
     reasonably matching appearance. The panel made no determination 
     on  whether  the  policy  covered  matching  and  separated  out  the 
     number so the parties could interface the policy coverage with the 
     award. The totals for hail hit damage and matching are an ACV of 
     $9,352,691.42 and an RCV of $9,838,966.30                       
(Clarification Ltr. at 2.)                                                
K.   Procedural History                                              
Maplebrook filed suit in Hennepin County District Court on June 9, 2021, alleging 
breach of contract and seeking a declaratory judgment. (Compl. ¶¶ 35, 42.) Specifically, 
Maplebrook  alleges  that  Hartford  breached  the  terms  of  the  Policy  by  paying  only 
$6,243,025.32 for the repairs rather than the total RCV awarded by the appraisal panel, 
$11,038,810.89. (Id. ¶¶ 26, 28, 31–36.) Further, Maplebrook alleges that Hartford has 
failed to pay all pre-award interest owed. (Id. ¶¶ 37–45.) Hartford removed to this Court 
on June 30, 2021. (Notice of Removal.)                                    
The parties filed cross-motions for summary judgment on May 17, 2023. (See 
Def.’s Summ. J. Mot. [Doc. No. 65]; Pl.’s Summ. J. Mot. [Doc. No. 73].) Following the 
appraisal panel’s clarification and the parties’ supplemental briefing, the Court now rules 
on these motions.                                                         
II.  STANDARD OF REVIEW                                                   
Summary judgment is appropriate if “the movant shows that 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). “A fact is ‘material’ if it may affect the outcome of the lawsuit.” 
TCF Nat’l Bank v. Mkt. Intelligence, Inc., 

 (8th Cir. 2016). And a 
factual dispute is “genuine” only if “the evidence is such that a reasonable jury could 
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

 (1986). In evaluating a motion for summary judgment, the Court must view the 

evidence  and  any  reasonable  inferences  drawn  from  the  evidence  in  the  light  most 
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

 (1986).                                                     
Although the moving party bears the burden of establishing the lack of a genuine 
issue of material fact, the party opposing summary judgment may not “rest on mere 

allegations or denials but must demonstrate on the record the existence of specific facts 
which create a genuine issue for trial.” Krenik v. Cnty. of Le Sueur, 

 (8th 
Cir. 1995) (internal quotation marks omitted); see Celotex Corp. v. Catrett, 

 (1986); Anderson, 

 (“[The] mere existence of a scintilla of evidence 
in support of the plaintiff's position will be insufficient; there must be evidence on which 

the  jury  could  reasonably  find  for  the  plaintiff.”).  Moreover,  summary  judgment  is 
properly entered “against a party who fails to make a showing sufficient to establish the 
existence of an element essential to that party’s case, and on which that party will bear 
the burden of proof at trial.” Celotex Corp., 

.            
III.  DISCUSSION                                                          
Both parties move for summary judgment. Hartford first argues that it has already 

paid the full RCV as required by both the Policy and the Award, because the Award 
assumes harvesting as a method of repair and because Maplebrook’s disposal of the 
original siding breached the “Protect Property” Policy provision. (Def.’s Mem. [Doc. No. 
67]  at  21–29.)  Second,  it  contends  that  Maplebrook  should  be  sanctioned  under the 
doctrine of spoliation for destroying the old siding. (Id. at 29–30.) Third, Hartford asserts 
that Maplebrook’s demand for payment in the December 2021 invoice is unsupported by 

evidence of additional repairs. (Id. at 30–32.) Fourth, it argues that both the Award and 
the plain language of the Policy calculate the RCV based on 2019 construction costs, not 
2020 construction costs. (Id. at 32–35.) Finally, Hartford maintains that it has paid all 
pre-award interest owed to Maplebrook. (Id. at 35–38.)                    
For its part, Maplebrook first asserts that the appraisal panel determined that a full 

replacement of the siding was warranted and awarded a total RCV to reflect that. (Pl.’s 
Mem. at 10–13.) Second, Maplebrook contends that under the Policy, and confirmed in 
the Award, the RCV should be based on 2020 construction costs. (Id. at 13–15.) Third, it 
insists that it did not breach the Policy by repairing the properties and by not preserving 
the old siding. (Pl.’s Opp’n [Doc. No. 75] at 11–14.) Fourth, Maplebrook asserts that 

Hartford  misapplies  the  doctrine  of  spoliation.  (Id.  at  14–15.)  Fifth,  Maplebrook 
maintains that the December 2021 invoice reflects the full RCV as determined by the 
appraisal  panel.  (Id.  at  16–17.)  Lastly,  Maplebrook  contends  that  Hartford  owes 
additional pre-award interest, based on the date of notice of the claim, as well as post-
award interest from when the repairs were completed. (Id. at 20–24.)      

The Court finds that, with its clarification, the appraisal panel decided that on the 
facts presented to it, there was no reasonable matching replacement siding, including 
harvested  siding.  The  appraisal  panel,  however,  did  not  rule  on  whether  the  Policy 
covered  new  siding,  and  the  Court  now  holds  that  in  the  absence  of  a  reasonable 
matching  replacement,  the  Policy  covers  full  replacement  of  the  siding  with  new 
matching siding. Similarly, Hartford’s arguments that Maplebrook’s destruction of the 

removed siding violated the Policy or constituted sanctionable spoliation of evidence are 
unavailing. Concerning construction costs, the Court holds that the Policy is clear, and 
the  RCV  should  be  based  on  2019  rather  than  2020  construction  costs.  Concerning 
interest, the Court holds that the accumulation of pre-Award interest should be measured 
from  October  2,  2019  with  offsets  for  prior  payments  by  Hartford,  and  post-Award 

interest has accrued. Finally, concerning Maplebrook’s December 13, 2021 invoice, the 
Court  holds  that  the  evidence  of  record  is  insufficient  as  a  matter  of  law  to  prove 
Maplebrook’s expenditures.                                                
A.   Whether New Matching Siding Is Provided For By The Award        
Maplebrook reads the clarified Award to includes payment for matching siding for 

a  total  of  $9,838,996.30.  Maplebrook  argues  that  the  appraisal  panel  reviewed  the 
materials  provided  to  them  at  the  parties’  hearing  and  did  not  find  anything  that 
constituted a reasonable match, and agreed that new siding panels were needed to present 
a reasonably uniform appearance for Maplebrook’s homes. (Pl’s Supp. Br. [Doc. No. 91] 
at 3-6.) According to Maplebrook, the appraisal panel “only separated the numbers in 
case there was a dispute over [the Policy’s] coverage of the matching portion of the 

award amount[,]” which is a matter under the jurisdiction of the Court. (Id. at 6.) 
Hartford  reads  the  clarified  Award  to  “establish[]  that  because  [the  appraisal 
panel] was presented with no evidence ‘related to the availability of reasonable matching 
siding’[,]” the panel did not rule on whether the expense of new siding was covered. 
(Def’s Supp. Br. [Doc. No. 93] at 2.) Hartford argues that “[i]t is undisputed that there 
would have been a sufficient amount of harvested siding to make spot repairs to those 

buildings that sustained minor direct hail damage[,]” but because Maplebrook destroyed 
said siding, the appraisal panel “had no choice but to include the cost of replacing the 
siding/electrical on all buildings[.]” (Id. at 3; Def’s Supp. Reply Br. [Doc. No. 94] at 1-2.) 
As such, the Policy does not cover this expenditure.                      
     1.  Findings Of The Appraisal Panel As To Replacement Siding    

In the interest of efficiency and avoiding litigation, “there is a strong public policy 
in Minnesota favoring appraisals.” Quade v. Secura Ins., 

 (Minn. 
2012). Courts traditionally looked to the Minnesota Uniform Arbitration Act (“MUAA”) 
when reviewing appraisal awards in insurance disputes. Herll v. Auto-Owners Ins. Co., 

 (8th Cir. 2018) (citing QBE Ins. Corp. v. Twin Homes of French Ridge 

Homeowners Ass’n, 

 (Minn. Ct. App. 2010), among others).9  


9 While, as noted in this Court’s prior decision, recent case law has called this 
practice into question, Oliver v. State Farm Fire & Cas. Ins. Co., 

 (Minn. 
2020), the Court will follow the rulings of other judges within the district and continue to 
Under MUAA’s principles, appraisal awards are “attended with every presumption 
of validity” and “will not be vacated unless it clearly appears that it was the result of 

fraud . . . or wrongdoing on the part of the appraisers.” Mork v. Eureka-Security Fire & 
Marine Ins. Co., 

 (Minn. 1950). However, appraisal panels have more 
limited authority than arbitrators: they can “decide the ‘amount of loss’ but may not 
construe the policy or decide whether the insurer should pay.” Quade, 

; see also Auto-Owners Ins. Co. v. Second Chance Invs., LLC, 

 
(Minn. Ct. App. 2012), aff’d, 

 (Minn. 2013) (“[A]ppraisal proceedings 

and the appraisers’ task are distinct from judicial and arbitration proceedings, because 
appraisers make valuation determinations, but are not empowered to decide questions of 
law.”) (citation omitted). Courts defer to an appraisal panel’s factual determination of the 
amount of loss, but questions of liability are always reserved for the court. See Cedar 
Bluff Townhome Condo Ass’n v. Am. Fam. Mut. Ins. Co., 

 (Minn. 

2014).                                                                    
The appraisal panel’s clarification letter allows the Court to resolve any ambiguity 
in the original Award. In response to the Court’s first question. the panel stated that 
“[t]here were no documents, samples, or witnesses presented at the appraisal hearing 
related to the availability of reasonable matching siding.” (Clarification Ltr. at 2.) The 

best reading of the appraisal panel’s clarification is that the panel concluded that there 
was not reasonable matching siding of like kind and quality as a factual matter. Per the 

apply  MUAA’s  principles  to  appraisal  award  interpretation.  Maplebrook  Estates 
Homeowner’s Ass’n, 

 at *10 (internal citations omitted).   
well-established division of responsibilities between appraiser and court under Minnesota 
law, in the absence of allegations of fraud, misfeasance, malfeasance, or wrongdoing on 

the part of the appraisers (none of which are present in the instant case), this is a final and 
conclusive finding of fact. See Mork, 

. Hartford had the opportunity to 
present  evidence  that  if  removed  siding  had  been  preserved,  it  could  have  been 
“harvested” for use, see generally Miller Decl., to the appraisal panel. However, Hartford 
opted not to attend the appraisal panel’s proceedings. The appraisal panel was Hartford’s 
opportunity to be heard. To allow Hartford a second opportunity to present evidence, in 

the absence of any allegation that it was denied due process in the first instance10 or that 
the appraisal panel committed misconduct, would undermine the purpose of the appraisal 
process and conflict with well-established law.                           
Rather,  the  sole  question  before  the  Court  is  whether,  given  the  lack  of  any 
reasonable matching siding—whether obtained through harvesting or purchasing new 

siding for some buildings—the Policy covers full replacement with new siding. As stated 
by the appraisal panel in its answer to the third question posed by the Court, “[t]he panel 
made no determination on whether the policy covered matching and separated out the 
number[s]  so  the  parties  could  interface  the  policy  coverage  with  the  award.” 


10 Even if Hartford asserted such a claim, it would be unlikely to succeed, as there 
is no evidence that its voluntary non-attendance at the appraisal panel hearing violates 
due process. See Rose Hill Villas Owners Association, Inc. v. American Family Mutual 
Insurance Company, Case No. 20-cv-2191 (ECW), 

 at *10 (D. Minn. 
Nov. 10, 2021) (“Because [plaintiff] had notice of [defendant’s] argument[,] had the 
opportunity  to  present  evidence  to  the  contrary  at  the  appraisal,  and  did  not  do  so, 
[plaintiff] has not met its burden to vacate the appraisal due to a due process violation.”) 
(Clarification Ltr. at 2.) This is a question of coverage, and therefore the Court must 
determine its answer based on the Policy.                                 

     2.  Policy Coverage As To New Replacement Siding                
Interpretation of an insurance contract, including whether provisions in a policy 
are  ambiguous,  is  a  legal  question  for  the  courts.  See  Oakdale  Mall  Associates  v. 
Cincinnati Ins. Co., 

 (8th Cir. 2013); Carlson v. Allstate Ins. Co., 

 (Minn. 2008) (“General principles of contract interpretation apply to 
insurance policies.”) When interpreting an insurance contract, the federal court looks to 

state law. See W3i Mobile, LLC v. Westchester Fire Ins. Co., 

 (8th Cir. 
2011).                                                                    
“When interpreting insurance contracts, the policy must be construed as a whole, 
beginning with the plain and ordinary meaning of the policy's terms, as well as ‘what a 
reasonable person in the position of the insured would have understood the words to 

mean.’” Cedar Bluff Townhome Condo Ass’n v. American Family Mut. Ins. Co., 

 (Minn. 2014) (citing Midwest Family Mut. Ins. Co. v. Wolters, 

 (Minn. 2013)). If policy language is ambiguous, it must be interpreted 
in favor of coverage. Wanzek Const., Inc. v. Employers Ins. of Wausau, 

 (Minn. 2004). However, insurance policy provisions are ambiguous only when they 

are reasonably subject to more than one interpretation, and the court has no right to read 
an ambiguity into the plain language of an insurance policy. Oakdale Mall, 

.                                                                     
The plain language of the Policy provides that Hartford:             
a. “will not pay more for lost or damaged property than the least of: 
     (1)  The  Limit  of  Insurance  applicable  to  the  lost  or  damaged 
     property,                                                       
     (2) The amount it costs to replace, on the same premises, the lost or 
     damaged property with other property (a) of comparable material 
     and quality and (b) used for the same purpose; or               
     (3) The amount you actually spend that is necessary and reasonable 
     to repair or replace the lost or damaged property with other property 
     (a) of comparable material and quality and (b) used for the same 
     purpose                                                         
(Brandis Decl., Ex. A (Policy) at 123) (cleaned up).                      
The Policy’s language is not ambiguous: it covers replacement of lost or damaged 
property with other property of “comparable material and quality.” The appraisal panel 
found  that  there  was  no  proposed  reasonable  siding  of  “like  kind  and  quality[,]”  a 
functionally synonymous phrase to “comparable material and quality.”      
The Supreme Court of Minnesota considered a near-identical set of facts in Cedar 
Bluff Townhome Condo Ass’n. There, a hailstorm damaged the siding on the plaintiff’s 
buildings, but replacement panels with the same specifications were not available in the 
same color as existing panels. 

. The court held that the “appraisal 
panel  properly  concluded  that  siding  of  comparable  material  and  quality  required  a 
reasonable color match between the damaged and undamaged siding[,]” as “comparable” 
quality requires a reasonably close (if not identical) color match. 

. The 
court  deferred  to  the  appraisal  panel’s  determination  that  this  necessitated  the 

replacement of both damaged and undamaged siding to ensure a uniform level of quality 
and color match. 

.                                           
Hartford’s response is unavailing. Hartford cites to Elm Creek Courthome Ass'n v. 
State Farm Fire & Cas. Co., which held that an appraisal panel could reasonably find that 

harvested  siding  met  a  contractual  requirement  that  lost  property  be  replaced  with 
property of “comparable material, quality and used for the same purpose.” 

, 737-38 (Minn. App. 2022). However, while Elm Creek established that harvesting 
can meet this standard as a general matter, it does not require appraisal panels to find that 
harvested siding is of comparable material and quality. Rather, the Elm Creek court found 
that the appraisal panel was “within its authority to consider ‘harvesting’ in the context of 

determining [the cost of replacement.]” Id. at 739 (emphasis added).      
Here,  as  discussed,  the  appraisal  panel  found  that  there  was  no  reasonable 
replacement siding, harvested or not. The Court defers to the appraisal panel’s finding, 
and finds that according to the Policy, Hartford is required to pay for full replacement of 
all siding. As such, the Court grants Maplebrook’s motion for summary judgment and 

denies Hartford’s motion for summary judgment on this basis.              
B. Maplebrook’s Alleged Violation Of The Policy                      
Hartford argues that, based on Mr. Miller’s report, had Maplebrook stored the 
siding  removed  from  its  buildings,  as  Hartford  anticipated  and  included  in  its  cost 
estimates,  there  would  have  been  enough  harvested  material  to  repair  buildings  that 

suffered minimal damage. (Def’s Summ. J. Br. [Doc. No. 67] at 25.) However, because 
Maplebrook instead disposed of the removed siding, it violated the Policy’s requirement 
that Maplebrook “[t]ake all reasonable steps to protect the property from further damage” 
and “set the damaged property aside and in the best possible order for examination.” 
(Def’s Summ. J. Br. at 25-27 (citing Policy at 106).) Hartford argues that this meets the 
Policy’s exclusion of not paying for loss or damage resulting from “[n]eglect to use all 

reasonable means to save and preserve property from further damage at and after time of 
the direct physical loss or damage.” (Def’s Summ. J. Br. at 25-27 (citing Policy at 137).) 
As  such,  Hartford  is  not  required  to  pay  for  damages  resulting  from  Maplebrook’s 
destruction of the siding, i.e., the increase in cost relating to the need to replace all of the 
buildings’ siding and related electrical work.                            
Maplebrook argues that it has not violated the Policy, as it was not required to 

keep damaged siding in place or preserve the damaged siding under the terms of the 
Policy. Maplebrook argues that “there [was] no way that samples would have proven that 
harvesting was appropriate[,]” that Hartford had “ample warning that the repairs would 
be done and never told Maplebrook to keep samples[,]” and even if Maplebrook’s actions 
breached the agreement, the breach was not material, as “there was no matching siding 

available on the open market when [Hartford] relied instead on harvesting [and] Hartford 
chose not to attend the appraisal, so it was not deprived of the opportunity to present 
samples to the appraisal panel.” (Pl’s Summ. J. Reply Br. [Doc. No. 82] at 10-14.) 
“Exclusions in an [insurance] policy…are as much a part of the contract as other 
parts thereof and must be given the same consideration in determining what the policy 

covers.”  Bobich  v.  Oja,  

  (Minn.  1960).  Policy  exclusions  are 
construed narrowly and strictly against the insurer. See State Farm Fire and Cas. Co. v. 
ARC Mfg., Inc., 

 (D. Minn. 2014). Moreover, ambiguous policy 
language must be interpreted in favor of coverage. See Wanzek Const., Inc. v. Employers 
Ins. of Wausau, 

 (Minn. 2004). Under Minnesota law. an insurer 
may defeat liability by showing prejudice from an insured party’s delay in giving notice 

of a claim. See Hooper v. Zurich American Ins. Co., 

 (Minn. 1996) 
(citing Reliance Ins. Co. v. St. Paul Ins. Cos., 

, 924–25 (Minn. 1976). 
However, “[l]ack of notice [of the claim] does not, in and of itself, establish prejudice.” 
Farmers Ins. Exch. v. Hallaway, 

 (D. Minn. 2008) (citing 
Hopper, 

.) Rather, the insurer “must show that during the period where 
notice should have been given, the insurer was prejudiced in an articulable manner.” (Id.) 

The Court finds that Maplebrook did not violate the Policy. As an initial matter, 
neither party interprets whether protectible “property” actually includes the siding that 
has  been  removed  from  Maplebrook’s  building.  The  Court  has  found  no  case  law 
interpreting a similar policy as treating potentially reusable building materials as covered 
“property.” As “property” is not defined in the Definitions section of the Policy (Policy at 

106-08),  “property”  is  an  ambiguous  term,  and  ambiguous  policy  language  must  be 
interpreted in favor of coverage, the Court construes “property” to exclude the materials 
in question.                                                              
Even assuming that the removed siding is protectible “property” under the Policy, 
Hartford’s arguments are still unavailing. In all of the cases cited by Hartford for the 

proposition that Maplebrook breached the Policy, where elements of a building were 
altered or removed in ways that made an insurer’s evaluation or argument about what was 
owed more difficult, the building owner’s work on the building that interfered with the 
insurer’s determination of damages happened before the insurer could view the building, 
and in most cases before they were given any notice of a potential claim. See Cornish 
Contracting and Real Estate, LLC v. Travelers Indem. Co., No. CV065001208, 

 at *2-3 (Sup. Ct. Conn. Apr. 2, 2008) (repair work begun on November 19, 
notice only reached insurer on November 23, no action taken until November 26); see 
also Triple Inv. Grp., LLC v. Hartford Steam Boiler Insp. & Ins. Co., 

 (E.D. Mich. 2014) (work performed one month before claim noticed); Carl v. Or. 
Auto. Ins. Co. v. North Pac. Ins. Co., 

 (Ore. 1996) (work performed one year 
before claim noticed).                                                    

Conversely, Hartford was given notice of Maplebrook’s claim in September 2019, 
well before the challenged work on the buildings began. Hartford availed itself of the 
opportunity  to  send  J.S.  Held  to  evaluate  the  damage  in  October  2019.  (See  Miller 
Damage Report; First Sarp Decl., Ex. K (Hartford Statement of Loss).) Hartford was thus 
aware of the condition of the siding, and could have sought to take samples of the siding 

at this point. Hartford became aware that Maplebrook opposed the use of harvesting to 
replace siding by May 2020. (See First Sarp Decl., Ex. N (Gavnat Statement of Loss) at 
2.) There is undisputed testimony from Mr. Pierce that he informed Hartford “several 
times” that the siding was being replaced prior to its replacement, but that Hartford did 
not retrieve any pieces of it. (Pierce Dep. 47:6-48:14.) The removed siding was not 

disposed of until September or October of 2020, at which point essentially all of the 
siding on the buildings had been completely replaced. (Muelken Dep. at 55:4–10.) The 
first express request in the record from Hartford to preserve materials of any kind came 
on September 28, 2020, with a request to “[leave] any damaged property that has not yet 
been agreed to or accepted [] as is, if feasible, to ensure additional inspections of the 
damages can continue to occur, if necessary[.]” (First Sarp Decl., Ex. T (Sept. 2020 

Hartford Statement of Loss).)                                             
The facts of this case are far afield from Hartford’s cited cases, where due to an 
insured party’s actions either before the insurer was given notice at all or before the 
insurer  had  an  opportunity  to  observe  the  damage,  the  insurer’s  ability  to  make  an 
independent  determination  of  costs  was  prejudiced.  Rather,  here,  Hartford  had  the 
opportunity to evaluate the damage sufficiently that it could determine its position on the 

feasibility of harvesting and the concomitant cost of repair long before the siding was 
removed.  Moreover, even if Maplebrook should have preserved the removed siding, 
Hartford did not attend the appraisal hearing and present evidence—such as J.S. Held’s 
report and documentation or Mr. Miller’s testimony, now presented to the Court—that but 
for the disposal of the removed siding, it could have served as reasonable matching 

replacement siding pursuant to the Policy. The appraisal panel hearing, as the mutually 
agreed-upon finder of fact in this dispute, was Hartford’s opportunity to be heard, and its 
failure to attend obviates any prejudice that could have resulted from its argument at the 
hearing  being weakened by Maplebrook’s alleged breach. As such, the Court denies 
Hartford’s motion for summary judgment on this basis.                     

C. Maplebrook’s Alleged Sanctionable Spoliation Of Evidence          
Hartford  argues  that  Maplebrook  should  receive  sanctions  for  spoliation  of 
evidence in the form of denying it recovery of “any additional proceeds for ‘matching’.” 
(Def’s Summ. J. Br. at 29.) Hartford argues that Maplebrook violated its duty to preserve 
the removed siding as relevant material to an expected future litigation, and the fact that 
the process began with an appraisal is not relevant to whether Maplebrook owed this 

duty. (Id. at 29-30; Def’s Supp. Br. at 6-8.) Hartford also argues that, under Minnesota’s 
standard for spoliation provided by Miller v. Lankow, 

 (Minn. 2011), 
whether Maplebrook’s destruction of the siding was done in good faith or bad faith is 
irrelevant to whether it can be sanctioned for spoliation. (Def’s Sur-Reply [Doc. No. 101] 
at 1-3.)                                                                  
Maplebrook argues that under federal law, in order for the Court to sanction it for 

spoliation, there must be a finding that it intentionally destroyed the siding in a way 
indicating a desire to suppress the truth. (Pl’s Summ. J. Br. at 14-15.) Maplebrook argues 
that  this  is  not  demonstrated  by  the  facts,  as  Hartford  had  sufficient  notice  that 
Maplebrook  was  disputing  the  value  of  the  loss  of  the  siding  but  did  not  instruct 
Maplebrook  to  preserve  samples.  (Id.)  Maplebrook  also  argues  that  it  meets  the 

requirements to avoid sanction under Miller v. Lankow. (Pl’s Supp. Reply Br. [Doc. No. 
96] at 3-4.) Maplebrook finally argues that, to the extent it could be sanctioned for 
spoliation, full preclusion of coverage for the relevant costs would be an inappropriate 
and disproportionate sanction. (Pl’s Summ. J. Br. at 115.)                
Federal courts have the inherent power to impose sanctions for destruction, or 

“spoliation,”  of  evidence.  Spoliation  sanctions  require  a  significant  showing.  See 
Greyhound Lines, Inc. v. Wade, 

 (8th Cir. 2007) (“A spoliation-of-
evidence sanction requires ‘a finding of intentional destruction indicating a desire to 
suppress the truth.’”) (quoting Stevenson v. Union Pac. R.R. Co., 

 (8th 
Cir. 2004)). “If spoliation is determined, the Court has broad discretion in determining an 
appropriate sanction and considers the culpability of the party and timing of the actions.” 

Peterson v. Washinton County, Civil No. 18-2640 (DWF/ECW), 

 at *3 
(D. Minn. June 30, 2021) (citing Dillon v. Nissan Motor Co., Ltd., 

 (8th 
Cir. 1993).                                                               
The Eighth Circuit has held that in matters before a federal district court under 
diversity jurisdiction, “federal law applies to the imposition of sanctions for the spoliation 
of  evidence.”  Sherman  v.  Rinchem  Co.,  

  (8th  Cir.  2012).  While 

Minnesota law provides that “even when a breach of the duty to preserve evidence is not 
done in bad faith, the district court must attempt to remedy any prejudice that occurs as a 
result  of  the  destruction  of  the  evidence[,]” Miller,  

,  federal  law 
requires a finding of “intentional destruction indicating a desire to suppress the truth.” 
Sherman, 

 (citing Stevenson, 

). Where a direct conflict 

between federal and state spoliation rules exists, federal rules apply. 

 As such, as held 
in Sherman, the standard expressed in Miller is inapplicable and the federal standard 
applies. 

                                                              
The evidence before the Court does not support the inference that Maplebrook 
intentionally destroyed the removed siding in a manner indicating a desire to suppress the 

truth. As discussed supra, Hartford was given notice of Maplebrook’s claim in September 
2019, and was given notice that Maplebrook opposed the use of harvesting to replace 
siding by May 2020 at the latest. Yet, the removed siding was not disposed of until 
September or October of 2020. At that point, essentially all of the siding on the buildings 
had  been  completely  replaced.  During  that  intervening  year,  Hartford  had  numerous 
opportunities  to  obtain  samples  of  the  siding  or  expressly  request  that  Maplebrook 

preserve samples. Yet, Hartford did not obtain a sample and did not expressly request that 
Maplebrook preserve materials of any kind, let alone specifically request that samples of 
the siding be preserved, until September 28, 2020.                        
While Maplebrook’s disposal of the siding may have fallen short of its state-law 
duty to “preserve relevant evidence for use in litigation” regardless of whether it acted in 
good or bad faith, Miller, 

, federal law requires a showing of an intent 

to hide the truth. Hartford cites no federal case law involving a comparable level of 
access  to  eventually-destroyed  evidentiary  material  where  a  spoliation  sanction  was 
granted. Maplebrook’s conduct does not rise to the level of bad faith, and in the absence 
of bad faith, the Court cannot grant a spoliation sanction. As such, the Court denies 
Hartford’s motion for summary judgment on this basis.                     

D. Use Of 

 Pricing To Determine Value                    
Hartford argues that, pursuant to the plain language of the Policy, the value of the 
damaged property (and thus the covered cost of replacement) should be determined in 
light of the costs at the time of the damage, i.e., based on 2019 pricing. (Def’s Summ. J. 
Br. at 32-35.) Hartford argues that the appraisal panel did not make a finding that 2020 

pricing should apply because of price increases between 2019 and 2020, but rather agreed 
that which pricing applied would be determined by reference to the Policy, and included 
both 2019 and 2020 pricing in the Award and appended statements. (Id.)    
Maplebrook argues that the appraisal panel decided, by reference to the appended 
statements, that 2020 pricing should be used. (Def’s Summ. J. Br. at 32-25.)  Maplebrook 

argues that this follows logically, as the appraisal was not held until 2020, and in the 
intervening period, prices increased for certain types of repairs. (Id.)  
As with the parties’ dispute concerning whether matching siding and electrical is 
covered by the Award, the best reading of the Award in light of the appraisal panel’s 
clarification is that the panel determined how much would be owed under either 2019 or 
2020 pricing, and left the issue of whether there was coverage for increased repair costs 

for the Court. Much as the appraisal panel provided RCV amounts both with and without 
matching siding and electrical and left it to the Court to determine which amount should 
apply, the panel did the same here. This is further indicated by Mr. Moe’s email stating 
that:                                                                     
The appraisal panel unanimously agreed that the statements do not make 
any decision regarding policy provisions or define policy coverages and 
that these are coverage questions to be resolved between both sides. Scott 
Moe and Brad Langerman agree that the 2020 percentage increases are not 
a part of the 2019 award amounts.                                    

(First Sarp Decl., Ex. R (Appraisal Award and Statements) at 7.) As such, the Court must 
determine whether the Policy covers increased costs for repair.           
Hartford’s reading of the Policy language is persuasive. The Policy states that 
“[i]n the event of covered loss or damage, we  will determine the value of  Covered 
Property at the actual amount spent to repair, replace or rebuild the damaged property as 
of the time of the loss or damage, at the same site or another site[.] (Policy at 121) 
(emphasis added). This language is unambiguous, defining the damages under the RCV 
measure—and thus the maximum covered costs—at the time of loss.           

While the case law cited by Hartford is not binding on this Court, the rulings of 
this Court’s sister districts interpreting similar provisions in similar insurance contracts 
are persuasive. See SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 
9291  (HB),  

  at  *7-10  (S.D.N.Y.  Oct.  31,  2006)  (explaining  the 
background  and  goals  of  RCV  insurance  policies  and  holding  that  policy  language 
providing that “replacement cost be determined ‘as of the time and place of loss’ dictates 

that the relevant benchmark is the amount it would cost to reproduce the [World Trade 
Center] as of the time and place of loss—i.e., as it existed early on the morning of 
September 11, 2001.”); see also Snoqualmie Summit Inn, Inc. v. Travelers Prop. & Cas. 
Co. of Am., No. CV06-0517 MJP, 

 at *2 (W.D. Wash. Mar. 5, 2007). 
Maplebrook’s  counterarguments  are  unavailing. As  discussed  supra,  the  Court 

disagrees with its reading of the appended statements from two members of the appraisal 
panel as deciding that 2020 prices apply, rather than making factual findings as to 2019 
and 2020 pricing and leaving the decision of the applicable measure of damages to the 
Court. Similarly, while Maplebrook cites Axis Surplus Ins. Co. v. Condor Corp., Civil No. 
20-789  (DSD/KMM),  

  at  *2-3  (D.  Minn.  Feb.  3,  2023)  for  the 

proposition that 2020 pricing should apply, this case is inapposite. In Axis Surplus, the 
contractual language governing RCV valuation did not include time-of-loss language, but 
rather a requirement that the insured party actually repair or replace the insured property 
(and do so as soon as possible after the damage) before they would be paid. Id. at *2. The 
Court determined that more recent (July 2022) price lists would be used to determine the 
cost rather than prices contemporaneous to the May 2018 damaging event because the 

insurer had substantially delayed the case. Id. at *3. Conversely, here, there is no such 
delay.                                                                    
The Award, as clarified by the appraisal panel, leaves the determination of the 
appropriate measure of damages to this Court. The Policy is clear that the benchmark is 
the value of the property at the time it was damaged or lost, which in this case is 2019. As 
such, the Court denies Maplebrook’s motion and grants Hartford’s motion for summary 

judgment on this basis.                                                   
E. Interest Calculation                                              
Hartford argues that, pursuant to Minnesota law, pre-award interest is calculated 
from  the  date  that  Maplebrook  provided  Hartford  with  loss  statements  sufficiently 
detailed to constitute a notice of claim, which occurred on May 6, 2020. (Def’s Summ. J. 

Br. at 35-27.) Hartford also argues that it is entitled to offsets for payments made to 
Maplebrook before the Award was issued, as otherwise it is overpaying interest. (Id. at 
37-38.) Finally, Hartford argues that it does not owe post-judgment interest unless the 
Court determines that it owes additional costs for matching siding and electrical and/or 
2020 pricing. (Def’s Summ. J. Reply Br. [Doc. No. 80] at 9-10.)           

Maplebrook argues that Hartford owes pre-Award interest measured from October 
2,  2019,  as  it  argues  that  it  provided  Hartford  with  sufficient  notice  to  fulfill  the 
requirements  of  Minnesota  law  as  of  that  date.  (Pl.’s  Opp’n  at  20–24.)    Moreover, 
Maplebrook  argues  that  as  Hartford  owes  additional  costs  for  matching  siding  and 
electrical and/or 2020 pricing, it is liable for additional pre and post-Award interest. 

     1.  Start Date                                                  
Minnesota law provides that the default rule for calculating interest on damages 
computes damages from “the time of the commencement of the action or a demand for 
arbitration, or the time of a written notice of claim, whichever occurs first[.]” Minn. Stat 
§ 549.09 subd. 1(b). To qualify as a notice of claim, a “written notice must be sufficient 
to allow the noticed party to determine its potential liability from a generally recognized 

objective standard of measurement.” Blehr v. Anderson, 

, 620-21 (Minn. 
Ct. App. 2021). This does not require a demand for a specific amount of money. Id. at 
621. A notice of claim for an insurance claim must be sent from the claimant to the 
insurer—a  report  generated  entirely  by  the  insurer  does  not  count.  Elm  Creek,  971 
N.W.2d at 741.                                                            

Whether notice is sufficient to trigger the beginning of statutory interest is a fact-
specific inquiry. Selective Ins. Co. of South Carolina v. Sela, 

, 867-69 
(D. Minn. 2020), aff’d 

 (8th Cir. 2021) (holding that interest began 
running from date that defendant submitted insurance claim rather than date that suit was 
filed, as filing an insurance claim was necessarily a claim for damages); Creekview of 

Hugo Ass'n, Inc. v. Owners Ins. Co., 

 (D. Minn. 2019); 
Herll v. Auto Owners Ins. Co., No. 15-CV-3104 (MJD/FLN), 

 at *3-4 
(D. Minn. Oct. 2, 2018); Housing and Redevelopment Auth. of Redwood Falls v. Housing 
Auth. Prop. Ins., No. 14-cv-4741 (PAM/HB), 

 at *2 & n.2 (D. Minn. 
Nov. 8, 2017).                                                            

Maplebrook’s notice on October 2, 2019 was sufficient to constitute a valid notice 
of claim under state law. Hartford first received notice that some amount of damage had 
occurred to Maplebrook’s properties on or prior to September 9, 2019, in response to 
which  Hartford  acknowledged  that  Maplebrook  had  made  a  claim  but  sought  more 
information. (See Brandis Decl., Ex. C (Sept. 9, 2019 Email).) On October 2, 2019, Mr. 
Pierce sent Mr. Becker an estimate, stating that it was “the initial estimate for roofs only. 

We pulled ITELS for the 4 different siding colors. As soon as we have that we will 
updat[e] the sides, soft metal, AC and gutters.” (First Sarp Decl., Ex. Y.) Mr. Pierce’s 
email therefore included cost estimates for the roofs and provided information about what 
other parts of the structures Maplebrook believed would need repair or replacement. Also 
in October, Hartford’s representatives inspected Maplebrook’s damaged buildings. (See 

Miller Damage Report; First Sarp Decl., Ex. K (Hartford Statement of Loss).)  
This is a greater degree of detail in a written communication from the claimant to 
the insurer than was found sufficient for a valid notice of claim in Sela. There, following 
a hailstorm that caused damage to his property:                           
Sela submitted a claim to Selective on July 8, 2015. In response, Selective 
sent an independent appraiser (Bryan Walton) to inspect the property. After 
briefly examining the damage, Walton told Sela that he had “a catastrophic 
claim”  and that Walton  would  “not  be  handling it  any  longer.” Walton 
submitted a loss report to Selective. BT Pls. Ex. 2. In his report, Walton 
noted that Sela told him “that the entire exterior of [the] dwelling was 
redone approximately 3 years ago.”                                   
About three weeks later, Selective sent two of its own employees—David 
Clark and Charlie Hubbard—to inspect Sela's property. Clark and Hubbard 
(accompanied by Sela) spent several hours examining the damage. Sela told 
Clark and Hubbard that the exterior of the home had been completely re-
done  five  or  six  years  ago.  Sela  also  explained  that  the  property  had 
sustained  damage  in  a  prior  hailstorm,  and  that  Lexington[,  another 
insurer,] had indemnified him for that damage…By the time that Clark and 
Hubbard finished their inspection, they knew that some of the damage from 
the 2010 hailstorm had been repaired and some of it had not. Sela later 
submitted photos to Selective on which he marked portions of his property 
that he had not repaired after the 2010 hailstorm.                   
455 F.Supp.3d at 846. Sela’s initial claim on July 8, 2015 contained essentially no detail 
about the damage, but Judge Schiltz treated it as sufficient, because filing a claim was 
implicitly a demand for compensation and “the information that Sela provided would 
have enabled Selective to assess its potential liability.” Id. at 869. The Eighth Circuit 
affirmed, holding that notice was sufficient, as “Selective knew from the loss notice that 
there was hail damage to the roof of a property covered by a $1.6 million policy. Three 
days after the notice, Selective assigned its first adjuster. And two days after that, the 
adjuster was investigating the damage.”  

.                 
The example provided by Sela most closely tracks the facts of this case, and Sela 
is the binding Eighth Circuit case that most closely follows the standard espoused by the 
Minnesota Court of Appeals in Blehr v. Anderson.11 As such, the Court holds that pre-

11  While  the  holdings  of  Herll  and  Housing  and  Redevelopment  Authority  of 
Redwood  Falls—cited  by  Hartford—have  not  been  overturned,  as  Judge  Tostrud 
explained, neither case engages with Blehr or its progenitor, Indep. Sch. Dist. 441 v. 
Bunn-O-Matic Corp., No. C0-96-594, 

 (Minn. Ct. App. Dec. 3, 1996), 
which set the standard in this area. See Creekview of Hugo Ass'n, Inc., 

.                                                                     
judgment and pre-Award interest should be measured from October 2, 2019, and grants 
summary judgment to Maplebrook on this basis.                             

     2.  Offsets                                                     
Hartford argues that it is “entitled to offsets for the payments it made during the 
course of the claim leading up to appraisal.” (Def’s Summ. J. Br. at 37-38.) Maplebrook 
is silent as to this argument.                                            
By statute, pre-award interest is owed only on pecuniary damages. 

, subd. 1(b). The purpose of pre-award interest is to “(1) compensat[e] the plaintiff 

for the loss of use of the money, and (2) promot[e] settlement.” Creekview of Hugo Ass'n, 
Inc., 

. Both state and federal courts have held that once an insurer 
has made payment to the insured party, the insured party has “[the] money in hand and 
needs no compensation for the loss of its use.” 

; see also Elm Creek, 971 
N.W.2d at 743.                                                            

Here, Hartford made substantial payments to Maplebrook prior to Maplebrook’s 
demand for appraisal and the panel’s subsequent Award. As Maplebrook has made no 
argument against granting offsets and raised no countervailing case law, the Court holds 
that while Maplebrook is entitled to pre-award interest, this entitlement comes with an 
offset for Hartford’s prior payments, and grants summary judgment to Hartford on this 

basis.                                                                    
     3.  Post-Award Interest                                         
Maplebrook  seeks  post-award  interest  on  the  unpaid  portion  of  the  Award. 
Hartford argues that it is not obligated to pay post-Award interest, as “[u]nless and until 
Maplebrook establishes it is entitled to additional monies under the Award for matching 
and/or 2020 price increases, Hartford's payment on May 11, 2021 fully satisfied the 

Award[.]” (Def’s Summ. J. Reply Br. at 9-10.)                             
“In a diversity action, state law governs prejudgment interest; federal law governs 
postjudgment interest.” Happy Chef Sys., Inc. v. John Hancock Mut. Life Ins. Co., 

 (8th Cir. 1991). Under Minnesota law, post-award interest is governed 
by 

, subdivision 2, which provides that interest shall accrue “from 
the time that [the judgment or award] is entered or made until it is paid[.]” The applicable 

interest rate is ten percent per year until paid. 

 at subd. 1(c)(2). Conversely, federal law 
provides for post-judgment interest by calculating “from the date of the entry of the 
judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, 
as published by the Board of Governors of the Federal Reserve System, for the calendar 
week preceding the date of the judgment.” 

(a). Interest is computed 

daily to the date of payment and compounded annually. 

(b).  
This Court previously considered the distinction between post-appraisal award 
interest and post-judgment interest in Savanna Grove Coach Homeowners' Ass'n v. Auto-
Owners Ins. Co., No. 19-cv-1513 (ECT/TNL), 

 (D. Minn. Jan. 29, 
2020). There, Judge Tostrud held that “post-award interest is understood to mean interest 

beginning  upon  the  issuance  of  the  appraisal  award,  and  post-judgment  interest  is 
understood to mean interest beginning upon the entry of judgment.” Id. at *9 (emphasis 
added). As such, for interest accruing after the appraisal award was issued, but before a 
judgment is entered by the federal court, Minnesota state law applied. The Court finds 
Judge Tostrud’s analysis persuasive, and follows the Court’s prior ruling. 

As discussed, supra, the Court grants summary judgment to Maplebrook on the 
issue  of  whether  the  Award  and  Policy  entitle  it  to  payment  for  new  matching 
replacement siding, and to Hartford on the issue of whether 2019 or 2020 costs apply. As 
such, Maplebrook is entitled to post-Award interest on the outstanding amount due for 
matching only, and grants in part and denies in part Maplebrook’s motion on this basis. 
Post-award interest will be calculated at 10% per year on the unpaid balance of the 

appraisal award from the time of the Award until entry of judgment, while any post-
judgment interest will be calculated pursuant to federal law.             
F.  Disputed Payment On The December 13, 2021 Invoice                
Hartford  argues  that  it  is  not  obligated  to  pay  the  outstanding  balance  of 
$486,304.88 from Maplebrook’s December 13, 2021 invoice, as the Policy only requires 

that, under an RCV calculation, Hartford pay for the least of the actual amount that it 
costs  to  repair  the  property  or  the  amount  Maplebrook  actually  spent  to  repair  the 
property.  (Def’s  Summ.  J.  Br.  a  30-31.)  Hartford  argues  that  Maplebrook  has  not 
provided sufficient evidence that it actually paid for additional repairs or what work was 
actually performed, as the invoice and deposition testimony of Maplebrook’s contractors 

provide little information and suggest that no additional expenditures covered by the 
Policy were incurred. (Id. at 31-32.)                                     
Maplebrook argues that it provided an invoice to Hartford through its contractor, 
Capital, and that this is sufficient evidence of its repair work for payment to be owed by 
Hartford.  (Pl.’s  Opp’n  at  16-17.)  Maplebrook  argues  that  Hartford  provides  no 
documentary evidence to support its supposition that Capital either did not perform the 

claimed  work  or  that  said  work  was  not  covered  by  the  Policy,  and  suggests  that 
Hartford’s argument creates a new, unclear threshold of evidence required to prove that it 
paid the RCV amount to Hartford’s satisfaction. (Id.)                     
The Policy’s provision that limits payment to the least of the insurance limit, the 
cost of replacement, and the amount actually spent is not ambiguous. (See Policy at 106.) 
Therefore,  Hartford  is  only  liable  to  pay  the  lowest  of  “the  limit  of  liability,  the 

replacement cost for equivalent construction and use, or the amount actually spent to 
repair the damage.” See Estes v. State Farm Fire & Cas. Co., 

 (Minn. Ct. 
App. 1984) (considering a similar provision). The remaining dispute is how much was 
actually spent on covered repairs, which was not considered by the appraisal panel.  
This Court considered a similar claim in Savanna Grove Coach Homeowners' 

Ass'n. There, the defendant insurer refused to pay the difference between what it had 
already paid and the  amount of an appraisal award, arguing that the plaintiff’s final 
invoices for the project were insufficient to show that the plaintiff had paid, and therefore 
was not obligated to pay more than the amount actually spent. 

 at *3, 
*5. Judge Tostrud disagreed with the defendant and, “recognizing that doubts do not 

create a triable controversy,” held that the plaintiff’s record of payment—which included 
itemized invoices—was sufficient. Id. at 6-7. Judge Tostrud found that the plaintiff’s 
responsibilities under the insurance policy—to provide an inventory of property, permit 
inspection of property and records proving loss or damage, allow questioning under oath, 
and to cooperate with an investigation—did not require a more fulsome production. Id. 
Judge Tostrud noted that while the defendant alleged that the plaintiff’s final invoice was 

“simply pegged to match the Appraisal Award[,]” it cited no evidence supporting its 
interpretation. Without evidence, “supposition about why the numbers align does not 
create a genuine fact dispute.” Id. at 7 (citing McConnell v. Anixter, Inc., 

 (8th Cir. 2019).)                                                     
As in Savannah Grove, Hartford argues that Maplebrook’s invoice is insufficient 
to show that they have incurred covered expenditures. Moreover, the Policy contains 

near-identical general duties for Maplebrook in the event of a loss or damage: prompt 
notice; protection of property from further damage; provision of a detailed inventory of 
lost or damaged property to Hartford; permission for Hartford to inspect the property and 
Maplebrook’s records as required; a signed and sworn proof of loss statement within 60 
days of Hartford’s request; and a general duty to cooperate.  (See Policy at 106.) The 

Policy also requires Maplebrook to allow Hartford to “examine any insured under oath” 
on matters relating to the insurance policy or claim. (Id.)               
However, while Judge Tostrud found that the record submitted by the plaintiff in 
Savannah Grove was “extensive,” 

 at *5, the same cannot be said for 
Maplebrook’s record. The December 13, 2021 invoice contains essentially no information 

about what work is being invoiced, saying only that it was for “All repair as outlined in 
the  adjusters  summary  and  appraisal  award[.]”  (Dec.  13,  2020  Capital  Invoice.)  No 
witnesses  could  identify  the  specific  work  to  which  the  final  invoice  corresponded, 
although Mr. Pierce believed that it concerned “deck painting and [] HVAC” work.  (See 
McLarty Dep. at 60:6–62:4; Pierce Dep. at 82:3–86:7; Muelken Dep. at 109:2-25.) Mr. 
Muelken stated that he did not have any involvement in coming up with the invoice 

amount, even though he was the representative of the contractor performing the work, 
and that “[the invoice] was requested from Gavnat so they can have that to submit to the 
carrier.”  (Muelken  Dep.  at  109:9-11.)  Together,  the  evidence  suggests  that,  as  the 
defendant in Savannah Grove posited, the December 13, 2021 invoice was not for work 
performed but rather simply pegged to match the Award.                    
Even assuming that some work was performed, there is insufficient evidence in the 

record  before  the  Court  to  find  for  Maplebrook.  No  reasonable  jury  could  find  for 
Maplebrook in the absence of any testimony specifying what work was covered by the 
December 13, 2021 invoice. Mr. Pierce’s speculation that the invoice concerned “deck 
painting and [] HVAC” work, without any documentary evidence or even confirmation by 
the contractor performing the work, falls far short of establishing “specific facts which 

create a genuine issue for trial.” Krenik, 

 (8th Cir. 1995); see also Zayed v. 
Associated Bank, N.A., 

 (8th Cir. 2019) (“To show a genuine dispute of 
material fact, a party must provide more than conjecture and speculation.”) 
There is no genuine issue of material fact concerning Maplebrook’s December 13, 
2021 invoice. As such, the Court denies  Maplebrook’s  motion and grants Hartford’s 

motion for summary judgment on this basis.                                
IV.  CONCLUSION                                                           

Accordingly, based on the submissions and the entire file and proceedings herein, 
IT IS HEREBY ORDERED that                                                 
1.   Defendant’s Motion for Summary Judgment [Doc. No. 65] is GRANTED 
     IN PART and DENIED IN PART;                                     
2.   Plaintiff’s Motion for Summary Judgment [Doc. No. 73] is GRANTED IN 
     PART and DENIED IN PART                                         

LET JUDGMENT BE ENTERED ACCORDINGLY                                       


Dated: February 29, 2024             s/ Susan Richard Nelson              
                                SUSAN RICHARD NELSON                 
                                United States District Judge         

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


Maplebrook Estates Homeowner’s     Case No. 21-cv-01532 (SRN/DJF)         
Association, Inc.,                                                        

     Plaintiff,                                                      
                              MEMORANDUM AND ORDER                   
v.                                 ON PARTIES’ MOTIONS FOR                
                                SUMMARY JUDGMENT                     
Hartford Fire Insurance Company,                                          

     Defendant.                                                      


Alexander M. Jadin and David A. Brandis, Smith Jadin Johnson, PLLC, 7900 Xerxes 
Avenue S., Suite 2020, Bloomington, MN 55431, for Plaintiff.              

Jonathan D. Day and Paulette S. Sarp, 250 Nicollet Mall, Suite 1150, Minneapolis, MN 
55401, for Defendant.                                                     


SUSAN RICHARD NELSON, United States District Judge                        
This matter is before the Court on Defendant Hartford Fire Insurance Company’s 
(“Hartford”) Motion for Summary Judgment [Doc. No. 65] and Plaintiff Maplebrook 
Estates Homeowner’s Association, Inc.’s (“Maplebrook”) Cross Motion for Summary 
Judgment [Doc. No. 73]. For the following reasons, the Court grants in part and denies in 
part each party’s motion.                                                 
I.   BACKGROUND                                                           
A.   Hailstorm and Insurance Policy                                  
Maplebrook  manages  a  non-profit,  common  interest  residential  community  in 
Brooklyn Park, Minnesota. (Notice of Removal [Doc. No. 1], Ex. 1 (Compl.) ¶ 1.) On 
August 5, 2019, a storm caused hail and wind damage to eighty-nine of Maplebrook’s 
buildings. (See Miller Decl. [Doc. No. 68], Ex. 1 (Miller Damage Report); Brandis Decl. 

[Doc. No. 74], Ex. E (Appraisal Award or the “Award”) at 1.) Although various parts of 
the buildings ultimately needed repair, this dispute concerns the repair of damaged siding. 
At the time of the storm, Hartford insured Maplebrook’s buildings under a Special 
Multi-Flex Business Insurance Policy (the “Policy”). (Brandis Decl., Ex. A (Policy) at 
5.)1 The Policy reads, in relevant part, “We will pay for direct physical loss of or direct 
physical damage to . . . Covered Property caused by or resulting from a Covered Cause of 

Loss.” (Id. at 119.) Covered causes of loss include “windstorm or hail.” (Id. at 107.)  
When damaged, Covered Property is subject to “Replacement Cost.” (Id. at 23.) 
For such property, the Policy provides:                                   
[W]e will determine the value of Covered Property at the actual amount 
spent to repair, replace or rebuild the damaged property as of the time of the 
loss or damage, at the same site or another site, subject to the following: 
    a.  We will not pay more for lost or damaged property than the least 
       of                                                            
       (1)  The Limit of Insurance applicable to the lost or damaged 
           property,                                                 
       (2)  The amount it costs to replace, on the same premises, the 
           lost or damaged property with other property:             
           (a)  Of comparable material and quality; and              
           (b)  Used for the same purpose; or                        
       (3)  The  amount  you  actually  spend  that  is  necessary  and 
           reasonable to repair or replace the lost or damaged property 
           with other property:                                      
           (a)  Of comparable material and quality; and              
           (b)  Used for the same purpose . . . .                    
    b.  We will pay you on an Actual Cash Value basis until the lost or 
       damaged property is actually repaired, rebuilt or replaced.   

1 When citing to the Policy, the Court uses the blue docket pagination at the top of 
the page.                                                                 
(Id. at 121.)                                                             
Minnesota  law  requires  all  hail  insurance  policies  to  provide  for  an  appraisal 
process. See Minn. Stat. § 65A.26 (2023). The Policy thus outlines:       
If [Hartford] and [the insured] disagree on the amount of loss, either may 
make written demand for an appraisal of the loss. In this event, each party 
will select a competent and impartial appraiser. The two appraisers will 
select an umpire. If they cannot agree, either may request that selection be 
made by a judge of a court having jurisdiction. The appraisers will state 
separately 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:                                                     
    a.  Pay its chosen appraiser; and                                
    b.  Bear the other expenses of the appraisal and umpire equally. 
If there is an appraisal, we will still retain our right to deny the claim on the 
grounds that it is not covered under this policy.                    

(Policy at 103.)                                                          
Finally, the Policy requires Maplebrook to take certain actions when a covered 
loss occurs. (See id. at 106.) Of note here, Maplebrook must “Protect Property”: 
  Take all reasonable steps to protect the property from further damage, 
  and keep a record of your expenses necessary to protect the Covered 
  Property, for consideration in the settlement of the claim . . . [Hartford] 
  will not pay for any subsequent loss or damage resulting from a cause of 
  loss  that  is  not  a  Covered  Cause  of  Loss. Also,  if  feasible,  set  the 
  damaged property aside and in the best possible order for examination. 

(Id.)                                                                     
B.   Claim Submission                                                
After the hailstorm, Maplebrook initiated the claims process. The record is silent 
as  to  how  Maplebrook  reported  its  loss,  however  on  September  9,  2019,  Hartford 
acknowledged  by  email  receipt  of  the  claim.  (Brandis  Decl.,  Ex.  C  (Sept.  9,  2019 
Email).) In the ensuing months, Maplebrook entered into a series of contracts to assess 
and repair the damage to its buildings.                                   

On September 24, 2019, Maplebrook retained a public adjuster, James Pierce, 
d/b/a Gavnat and Associates (“Gavnat”), to represent it in the insurance claim process. 
(First Sarp Decl. [Doc. No. 70], Ex. C (Authorization Agreement).) Under their contract, 
Mr. Pierce would receive as compensation 10% of the total insurance proceeds paid by 
Hartford to Maplebrook. (First Sarp Decl., Ex. D (Public Adjuster Contract).) 
That same month, Maplebrook hired Capital Construction, LLC (“Capital”) as its 

general  contractor  to  “perform  the  repair  and  replacement  work  specified  in 
[Maplebrook’s]  insurance  company’s  estimate  of  repairs.”  (First  Sarp  Decl.,  Ex.  E 
(Construction  Contract).)  Capital  would  receive  as  payment  the  proceeds  from  the 
insurance settlement and pay Gavnat’s fee out of those proceeds. (Id.; First Sarp Decl., 
Ex. F (Muelken Dep.) at 25:12–26:2, 40:3–12.)                             

Finally,  in  early  October  2019,  Capital  entered  into  an  agreement  with  New 
Concepts Management, Maplebrook’s property manager at the time, to act as a liaison 
between Capital and Maplebrook during the construction project. (First Sarp Decl., Ex. G 
(Project Oversight Contract) at 45; First Sarp Decl., Ex. H (McLarty Dep.) at 17:9–18:4.) 
Per the contract, New Concepts would receive 1% of the payments made to Capital on 

behalf of Maplebrook. (Project Oversight Contract at 46; Muelken Dep. at 27:22–31:1.) 
For its part, Hartford retained J.S. Held, LLC (“J.S. Held”) to determine the nature 
and extent of the hail damage to Maplebrook’s properties. (Miller Decl. ¶¶ 2–3.) 
C.   Loss Estimates and First Undisputed ACV Payment                 
On October 2, 2019, Mr. Pierce sent Mr. Becker “the initial estimate for the roofs 

only.” (First Sarp Decl., Ex. Y.) He noted that Maplebrook had pulled samples of the 
siding to send to ITEL, an independent laboratory that identifies construction materials 
matching those on an existing home. (Id.; Muelken Dep. at 6:11, 61:1–62:2.) To obtain 
the samples for ITEL, Mr. Muelken removed one-foot sections of siding from four or five 
buildings, corresponding to the colors used across Maplebrook’s properties. (Muelken 
Dep. at 61:19–62:2; Brandis Decl., Ex. G (ITEL Report) (analyzing five samples).) Mr. 

Muelken did not conduct a close inspection or make a record of the siding’s condition 
when he removed the samples. (Muelken Dep. at 61:1–65:2.)                 
 ITEL found that four of the five original siding products had been discontinued 
and  were  no  longer  available.  (See  ITEL  Report.)  It  suggested  alternative  siding 
replacements “based on closest match to the original color and physical specifications.” 

(Id.) These alternatives varied in their degree of similarity to the original siding. (See id.) 
Also in October, Sean Miller, building consultant and vice president with J.S. 
Held, and two colleagues inspected Maplebrook’s damaged buildings and recorded the 
number of hail strikes on each elevation. (Miller Damage Report; First Sarp Decl., Ex. K 
(Hartford Statement of Loss) at 7.) One building displayed as many as forty damaged 

siding  areas,  while  some  buildings  had  no  visible  damage.  (Miller  Damage  Report; 
Muelken Dep. at 86:23–87:2.) Still others sustained a handful of hail strikes. (See Miller 
Damage  Report.)  Maplebrook  does  not  dispute  the  overall  accuracy  of  Mr.  Miller’s 
report. (See Muelken Dep. at 87:6–9; First Sarp Decl., Ex. J (Pierce Dep.) at 78:1–25 
(noting that although he found additional hits after Mr. Miller’s report, Mr. Pierce had no 
record of them).)                                                         

On December 13, Hartford’s adjuster Jay Becker sent Mr. Pierce the insurer’s 
Statement of Loss. (Hartford Statement of Loss at 3.) The Statement, based on J.S. Held’s 
preliminary estimates, assessed the undisputed actual cash value (“ACV”)2 of the claim 
as $3,442,778.08: the estimated replacement cost value (“RCV”) of $6,348,856.46, less 
$2,016,078.38 in depreciation and Maplebrook’s $890,000 deductible. (Id. at 5.) Hartford 
issued a payment of $3,442,778.08 to Maplebrook three days later. (See First Sarp Decl., 

Ex. L (Claim Payment Log) at 1.)                                          
Along with the Statement of Loss, Mr. Becker sent J.S. Held’s damage estimate 
reports for each building. (See Hartford Statement of Loss at 6–90.)3 Under the heading 
“Scope  recap,”  J.S.  Held  noted,  “The  vinyl  siding  will  require  some  elevation 
replacement and some spot repairs, or replacement of pieces on other elevations due to 

the direction of the storm.” (Id. at 7.) The “General Conditions” estimate included a line-
item for “Job-site cargo/storage container” with an explanatory note: “Allowance for on 
site storage of salvaged siding, and other materials.” (Id. at 8.) In the individual building 
estimates,  siding-related  line  items  noted,  “Remove  and  replace  one  piece  of  siding 
identified  with  damage  .  .  .  .  Material  provided  by  siding  removed  from  other 

buildings/elevations.” (See, e.g., id. at 16.)                            

2 Actual cash value is “generally the cost to repair or replace an item with material 
of like kind and quality less depreciation or salvage.” (First Sarp Decl., Ex. T at 7.) 

3  Hartford’s  exhibit  only  includes  the  “General  Conditions”  estimate  and  the 
estimate for one building as an exemplar. (See First Sarp Decl. ¶ 12.)    
In his declaration, Mr. Miller explained that J.S. Held’s estimates assumed the use 
of “harvesting” as a siding repair method. (Miller Decl. ¶ 7.) Harvesting, according to Mr. 

Miller, is a common, accepted technique: undamaged siding panels from buildings slated 
for full siding replacement are used to make color-matched spot repairs on buildings that 
sustained  only  minimal  siding  damage.  (Id.  ¶ 5.)  Mr.  Miller  determined  that  the 
Maplebrook  homes  slated  for  full  re-siding  would  provide  “sufficient  amounts  of 
undamaged siding in all (4) colors that could have been harvested and used for insert 
repairs”  in  the  homes  with  less  damage.  (Id.  ¶ 8.)  He  opined  that  the  panels  to  be 

harvested were in a sufficient condition to maintain their structural integrity during the 
process. (Id. ¶ 11.)                                                      
Several months later, in May 2020, Mr. Pierce sent Mr. Becker the loss statement 
prepared  by  Gavnat.  (First  Sarp  Decl.,  Ex.  N  (Gavnat  Statement  of  Loss)  at  2.)4 
Regarding siding, Mr. Pierce wrote, “Your expert enlisted ‘harvesting’ into his bid[.] 

MapleBrook [sic] is claiming full siding replacement due to matching and not accepting 
using used products on their homes.” (Id.) Like Mr. Muelken, Mr. Pierce never inspected 
the siding’s condition to determine its suitability for harvesting. (Pierce Dep. at 77:1–18.) 
D.   Homeowners’ Input and Maplebrook’s Decision                     
At  some  point,  Maplebrook’s  homeowners  learned  of  Hartford’s  proposal  to 

perform harvesting and it became a point of contention in the community. (See First Sarp 
Decl., Ex. H (McLarty Dep.) at 55:19–56:1.) On June 12, 2020, Maplebrook’s then-

4 The record does not contain Gavnat’s overall loss estimate. The exhibit includes 
the email from Mr. Pierce, the estimate for the “General Conditions,” and the estimate for 
one set of buildings as an exemplar. (See Gavnat Statement of Loss.)      
President, Dan Couture, sent a letter to homeowners. (First Sarp Decl., Ex. P (Couture 
Letter).) First, he shared that a special assessment vote had failed to receive the necessary 

two-thirds majority, but that 61% of homeowners had voted in favor. (Id. at 1.) He then 
continued:                                                                
The  message  from  these  homeowners  was  clear:  they  didn’t  want  their 
home repaired with re-used siding and told to wait more than a decade to 
receive the new siding their neighbor will get this year. The Board didn’t 
like that option either—not with half our residents expected to sell their 
homes in the next 10 years. Acknowledging the wishes of this majority of 
voters, the Board consulted with our repair project partners to devise an 
alternative plan which delivers most of our original proposal—without the 
aid of a Special Assessment.                                         
     The  Board  is  pleased  to  announce  that  EVERY  building  at 
Maplebrook  will  receive  new  roofs,  siding  and  trim  this  year.  No 
harvested siding will be used. . . .                                 
     We are enthusiastic about the potential transformation this project 
presents for our nearly 40-year old community. The Board adopted this 
revised plan for three major reasons:                                
     •  Although the Special Assessment did not pass, the large majority 
       of YES voters warranted the Board depart from the ‘fix only   
       what insurance will cover’ option.                            
     •  Maplebrook will save hundreds of thousands of dollars making 
       these  improvements  now  at  Hartford  insurance-negotiated  
       contractor prices over replacement in 10+ years. . . .        
     •  All homeowners will receive the same exterior improvements as 
       their neighbors—no one is left out. Everyone benefits from the 
       improved curb appeal and price appreciation at resale provided 
       by a significantly refreshed exterior.                        

(Id. (emphasis in original).)                                             
The  work  would  be  funded,  the  letter  explained,  entirely  through  insurance 
proceeds and Maplebrook’s reserve funds—rather than through a special assessment on 
the community. (Id.) Mr. Couture finally noted that depending on Maplebrook’s pending 
negotiation over an additional $2 million in siding damages, some additional work that 
had been eliminated could be reconsidered. (Id. at 2.)                    

E.   Second Undisputed ACV Payment                                   
On September 28, 2020, Mr. Becker, on behalf of Hartford, emailed Mr. Pierce 
with  an  updated  Statement  of  Loss.  (First  Sarp  Decl.,  Ex.  T  (Sept.  2020  Hartford 
Statement  of  Loss).)  He  explained  that  Hartford  would  be  making  a  payment  to 
Maplebrook of $2,167,824.68, reflecting $467,365.47 in additional undisputed ACV and 
the release of $1,700,459.21 in applicable depreciation. (Id. at 2.) In the attached formal 

letter, Mr. Becker noted:                                                 
Please  be  advised  that  as  there  remains  a  stark  variance  between  our 
updated  proposed  settlement  and  your  revised  settlement  demand,  we 
respectfully  reject  your  updated  estimate  at  this  time,  however,  our 
investigation  is  continuing  in  an  effort  to  validate  additional  damage 
amounts.                                                             
     As our investigation is continues [sic], we request that any damaged 
property that has not yet been agreed to or accepted be left as is, if feasible, 
to ensure additional inspections of the damages can continue to occur, if 
necessary, in hopes of resolving this amicably.                      

(Id. at 5.) The payment was issued on September 28. (Claim Payment Log at 3.) 
F.   Repairs                                                         
The siding repairs proceeded swiftly.5 According to Mr. Muelken, eighty-eight of 
Maplebrook’s homes had been completely re-sided with new materials by October 2020, 
out of a total of 89 homes subject to repair.6 (Muelken Dep. at 55:4–10.) None of the 

5 The record does not identify when construction began.              

6 In addition to replacing all of the siding, Maplebrook elected to install fan-fold 
insulation beneath it to improve insulation. (Muelken Dep. at 31:5–32:18.) Maplebrook 
existing siding was saved after removal from the buildings and Capital did not notify 
Hartford before its disposal. (Id. at 61:13–17, 66:5–8, 67:23–68:6; Pierce Dep. at 45:10–

14.)                                                                      
Mr. Muelken testified that Capital disposed of the old siding for two reasons:  
One, it’s not common practice for us to store, save or try and salvage old 
siding. Two . . . due to the age, condition of the existing siding, taking the 
siding off was near impossible without damaging [it] . . . [S]o the condition 
of the siding of what was there was not able to be, A, salvaged and not 
damaged,  and  because  of  its  age  did  not  match  other  buildings.  The 
association, because of those factors, before appraisal, decided to pay out of 
pocket to have uniform appearance for all the buildings because of those 
factors.                                                             

(Muelken Dep. at 57:23–58:14.) However, Mr. Muelken subsequently testified that, on a 
case-by-case basis, it is possible to methodically salvage siding for spot repairs at a 
greater labor cost. (Id. at 59:4–60:8, 65:3–66:4.) As noted above, Mr. Muelken did not 
inspect the condition of the siding on each damaged building to assess the feasibility of 
harvesting. (Id. at 61:1–65:2, 66:4.)                                     
Mr. Pierce confirmed that, at the time of the siding’s removal, he knew Hartford 
wanted to perform harvesting. (Pierce Dep. at 46:14–16, 49:6 (“Both Hartford and I were 
aware that there was a dispute.”).) He testified that he believed Maplebrook had no 
responsibility to store old siding after its removal, and that “if [Hartford] wanted it, they 
should have taken it.” (Id. at 46:19–25.) Although he “made Hartford aware that the 
siding was being replaced on multiple occasions,” Mr. Pierce testified that he did not 

paid  directly  for  the  insulation  upgrade  as  a  “betterment”  and  does  not  request 
reimbursement for it from Hartford. (Id.) Maplebrook directly paid for a number of other 
betterments, such as to gutters and certain light fixtures, that were completed during the 
repairs. (Id. at 32:22–35:6.)                                             
inform Hartford that the old siding would be thrown away. (Id. at 47:6–21.) Mr. Pierce 
further testified that Maplebrook did not conserve any samples of the old siding despite 

the likelihood of an appraisal because “[w]e didn’t need it for our presentation.” (Id. at 
50:9–10.)                                                                 
Like  its  commencement,  the  record  does  not  reveal  when  construction  was 
completed  on  all  repairs.  Nonetheless,  Mr.  Muelken  testified  that  all  construction 
suppliers and subcontractors had been fully paid for their work by the end of 2020. 
(Muelken Dep. at 73:19–24.)                                               

G.   Amount of Loss Dispute and Appraisal Hearing                    
On November 13, 2020, Mr. Pierce wrote to Hartford requesting an appraisal, as 
provided for in the Policy, because the amount of loss remained in dispute. (Brandis 
Decl., Ex. D (Nov. 13, 2020).) Maplebrook, through Mr. Pierce, named Adina Bergstrom 
as  its  chosen  member  of  the  three-person  appraisal  panel.  (Id.)  Brad  Langerman, 

Hartford’s appraiser, and Scott Moe, umpire, were the other panelists. (Appraisal Award 
at 2.)                                                                    
The  appraisal  panel  met  in  April  2021.  (Appraisal  Award  at  3.)  Mr.  Pierce 
represented Maplebrook at the meeting, while Hartford did not send a representative. 
(Pierce Dep. at 61:12–14.) Aside from Mr. Pierce’s deposition testimony, there is no 

record of the appraisal panel’s proceedings.                              
Mr. Pierce testified that he raised two areas of dispute to the panel. (Id. at 61:20–
62:6.) The first related to siding repairs: Hartford’s position, as related by Mr. Pierce, was 
that  harvesting  was  the  proper  repair  technique,  while  Maplebrook  sought  full 
replacement of each building’s siding. (Id. at 61:23–62:3.) Because the siding panels had 
been discarded during the repairs, the appraisal panel did not have the opportunity to 

examine  any  samples.  (See,  e.g.,  id.  at  50:3–10.)  The  second  dispute  related  to  the 
difference in construction costs between 2019, when the damage occurred, and 2020, 
when the repairs were made. (Id. at 62:7–10.) In addition to presenting this information, 
Mr. Pierce also submitted to the panel a proposed award form. (Id. at 68:15–23.) 
The proposed award form included tables with rows labeled with construction 
trades (e.g., siding or electrical) and columns labeled “2019 RCV” and “2020 RCV.” 

(First Sarp Decl., Ex. Q (Proposed Award).) According to Mr. Pierce, the panel asked 
why the proposed award form called for two years of cost values. (Pierce Dep. at 69:18–
20.) He responded that he had anticipated a coverage dispute over whether 2019 or 2020 
construction costs applied, and he “wanted [the panel] to be the fact finder.” (Id. at 
69:21–25.)                                                                

H.   Appraisal Panel’s Award                                         
The appraisal panel issued its award (the “Award”) on April 20, 2021. (Appraisal 
Award at 3.) The panel largely adopted the format of the proposed award form, however 
the final document omitted the 2020 RCV columns that Mr. Pierce had included as an 
alternative. (Compare Proposed Award with Appraisal Award.)               

The first page bears a table containing award amounts for ten construction trades: 
                           Award                                     
       (ACV = Actual Cash Value & RCV = Replacement Cost Value)      

      Category      2019 ACV      2019 RCV                           

  General                       $173,538.40                          
  Conditions                                                         
  Roofing                       $3,788,283,65                        
                                [sic]                                
  Gutters                       $151,919.39                          
  Soft Metals                   $637,594.19                          
  Windows                       $267,197.49                          
  Garage Doors                  $55,436.42                           
  Chimney Caps                  $286,000.00                          
  Deck Painting  $83,658.00     $167,300.00                          
  HVAC           $358,437.34    $716,874.68                          
  Permit                        $59,047.47                           

(Appraisal Award at 1.)                                                   
The second page begins with a question taken from Mr. Pierce’s proposed award 
form: “Is there a Reasonable Matching Replacement Siding of like kind and quality 
available?  Please  Check  One  Column  and  Sign.”  (Id.  at  2.)  One  appraiser,  Mr. 
Langerman, checked “Yes”; Ms. Bergstrom and Mr. Moe checked “No.” (Id.) Below that 
question were instructions: if a majority of the panel checked “Yes,” they were to proceed 
to Option 1; if a majority checked “No,” they were to proceed to Option 2. (Id.) The rest 
of the second page is reproduced below:                                   
       Option 1 – There is a reasonable siding of like kind and quality 

         Category             2019 RCV                               

  Siding                N/A                                          
  Electrical            N/A                                          
     Option 2 – There is not a proposed reasonable siding of like kind and 
                           quality                                   

         Category             2019 RCV                               

  Siding                $859,922.12                                  
  Electrical            $35,000.00                                   
  Siding Match          $1,587,654.28                                
  Electrical repairs necessary  $158,774.00                          
  for matching                                                       
  GC Match              $0                                           
  Siding and electrical subtotal: $894,922.12                        
  Siding Match and Electrical Match subtotal: $1,746,428.28          
(Id.)                                                                     
The Award continues on a third page, reproduced in relevant part below: 
                   Appraisal Award Summary*                          

                   2019 ACV        2019 RCV                          

  Sub-Total Claim  $6,756,018.47  $7,198,113.81                      
  O & P          $675,601.84    $719,811.38                          

  Total Award    $7,431,620.31  $7,917,925.19                        

(Id.  at  3.)  Following  the  table  is  a  certification  statement  and  the  three  appraisers’ 
signatures. (Id.) Finally, below the signatures, the Award includes the starred footnote to 
which the Appraisal Award Summary table referred:                         
  *Matching Siding and    2019 RCV         2019 ACV                  
  Electrical:                                                        
                          $1,746,428.28    $1,746,428.28             
                          +10% OH&P        +10% OH&P                 
                          $1,921,071.11    $1,921,071.11             
(Id.)                                                                     
Two members of the panel, Ms. Bergstrom and Mr. Moe, appended substantially 
identical advisory statements indicating the percent-increases in construction costs from 
2019 to 2020 in Brooklyn Park, Minnesota. (Id. at 4–5.) The statements indicated that, 
according to the Xactimate construction pricing database, costs for various trades rose 
anywhere from 3% (general conditions) to 18% (siding). (Id.)              
Mr. Moe sent Mr. Pierce and Mr. Becker an email on April 20 explaining the 
appended statements:                                                      
At the onset of the appraisal hearing for Maplebrook estates Mr. Jim Pierce 
presented an award statement proposing that the panel establish an award 
based on 2019 and 2020 cost pricing. Both appraisers agreed to the format 
of the award statement presented however Brad Langerman appraiser and 
Scott Moe umpire agreed that awarding 2020 cost pricing was a coverage 
question  which  should not  be  a  part  of the  award  statement. Appraiser 
Adina Bergstrom did not agree with that and believed it was a valuation 
issue to be decided. The panel agreed to change the award form by deleting 
references  made  to  2020  pricing  in  the  proposed  award  form  and  then 
umpire  Scott  Moe  and  appraiser Adina  Bergstrom  would  sign  separate 
statements  for  the  percentage  increased  from  2019  to  2020  that  was 
presented at the hearing. Scott Moe and Brad Langerman did not believe 
that the panel had the authority to award amounts related to price increases 
from 2019 to 2020. Mr. Langerman advised he would not sign the 2019  
award if [it] included any 2020 pricing information. Ms. Bergstrom agreed 
to sign the 2019 Award only if statements for 2020 percentage increase 
were issued because she did believe that [the] panel had this authority . . . 
The appraisal panel unanimously agreed that the statements do not make 
any decision regarding policy provisions or define policy coverages and 
that these are coverage questions to be resolved between both sides. Scott 
Moe and Brad Langerman agree that the 2020 percentage increases are not 
a part of the 2019 award amounts.                                    
(First Sarp Decl., Ex. R (Appraisal Award and Statements) at 7.)7         
I.   Additional Payments and Demands for Payment                     
In addition to the two undisputed ACV payments noted above, by the time of the 
appraisal hearing Hartford had made the following payments to Maplewood: $82,208.01 

in additional undisputed ACV for the repair of the HVAC units; $4,161.09 paid in error; 
$344,279.01  in  recoverable  depreciation  minus  the  $4,161.09  paid  in  error;  and 
$201,744.44 in released depreciation for the HVAC repairs as well as permit fees incurred 
during the repairs. (See Claim Payment Log, First Sarp Decl., Ex. U; First Sarp Decl., Ex. 
S.) In total, prior to the appraisal hearing, Hartford had paid Maplebrook $6,243,025.32. 
After the appraisal panel issued the Appraisal Award, Hartford paid Maplebrook 

$298,594.99, representing the difference between the Award’s total ACV, $7,431,620.31, 
and the total ACV already paid. (See Claim Payment Log; First Sarp Decl., Ex. W.) 
On  December  13,  2021,  Maplebrook’s  counsel,  John  Wittmer,  submitted  an 
invoice from Capital to Hartford for $11,038,810.89. (First Sarp Decl., Ex. Z (Dec. 13, 
2020  Capital  Invoice).)  Mr.  Wittmer  explained  that  “Maplebrook  has  completed  all 

repairs relating to the damage. . . . Accordingly, Maplebrook is demanding payment of 
the Replacement Cost Value (“RCV”) of the Appraisal Award, $11,038,810.89, minus 
applicable  deductible  and  prior  payments.”  (Id.  at  2.)  He  declared  that,  even  taking 
Hartford’s position that the “Total Award” is $7,917,925.19, Hartford owes Maplebrook 


7  The  Court  refers  here  to  Hartford’s  award  exhibit.  Although  both  parties 
provided a copy of the Award, only Hartford’s exhibit includes Mr. Moe’s email. 
$486,304.88 in “Payable RCV.”8 (Id. at 2–3.) Mr. Wittmer requested payment within 10 
business days.                                                            

The only line item on the December invoice is “All repairs as outlined in the 
adjusters summary and appraisal award.” (Id. at 4.) When asked to explain the basis for 
the invoice, neither Maplebrook’s President, Mr. McLarty, nor its adjuster, Mr. Pierce, 
could identify the additional post-appraisal repairs to which the invoice corresponded. 
(McLarty Dep. at 60:6–62:4; Pierce Dep. at 82:3–86:7.) Mr. Pierce testified that “there’s 
nothing outstanding and undisputed, though. So I am assuming all monies have been paid 

that’s owed now.” (Pierce Dep. at 85:18–19.) Mr. Muelken, the repair project manager, 
similarly did not know what the invoice represents, testifying that “This was requested 
from Gavant so they can have that to submit to the carrier.” (Muelken Dep. at 109:9–11.) 
He disclaimed any involvement with calculating the amount on the invoice and explained 
that Gavnat came up with the number “based on the scope and appraisal award.” (Id. at 

109:19–25.)                                                               
In 2022, as part of this litigation, Hartford retained Jeffrey A. Nonhof, a Senior 
Executive General Adjuster at Engle Martin & Associates, to provide an expert opinion 
about the viability of harvesting. (First Sarp Decl., Ex. M (Nonhof Report).) In his report, 
delivered on December 16, 2022, Mr. Nonhof opined that “harvesting of undamaged 

siding to facilitate repairs to elevations of similar color and exposure is an acceptable, 

8  Mr.  Wittmer  arrived  at  this  number  through  the  following  calculation: 
$7,917,925.19 (Hartford’s valuation of the RCV of the Appraisal Award) - $890,000 
(Maplebrook’s Policy Deductible) - $6,541,620.31 (Prior payments) = $486,304.88. (Id. 
at 3.)                                                                    
reasonable, and customary repair practice in the insurance and construction industry.” (Id. 
at  3.)  He  further  stated  that  based  on  the  J.S.  Held  summaries,  “more  than  enough 

buildings were designated for replacement to supply the material needed to facilitate 
repairs on the remaining elevations with similar colors and specific elevations. (Id. at 4.) 
Finally,  he  opined  that,  “It  was  contrary  to  custom  practice  in  the  insurance  and 
construction  industry,  for  the  insured  to  replace  all  the  vinyl  siding  and  discard  the 
original, prior to the Appraisal Hearing.” (Id.)                          
To date, Hartford has refused to issue a payment based on the December 2021 

invoice.                                                                  
J.   Remand To Appraisal Panel And Panel’s Clarification             
On August 7, 2023, this Court remanded this matter to the appraisal panel, seeking 
clarification  of  the  panel’s  decision.  Maplebrook  Estates  Homeowner’s Ass’n,  Inc. v. 
Hartford Fire Ins. Co., Case No. 21-cv-01532 (SRN/DJF), 

 (D. Minn. 

Aug. 7, 2023). On November 22, 2023, counsel for Maplebrook submitted a letter to the 
Court including a copy of the panel’s response. (See Clarification Ltr. [Doc. No. 88].) The 
panel answered the questions as follows:                                  
[Question]  1.  “Why  do  you  believe  there  is  no  Reasonable  Matching 
Replacement Siding of the like kind and quality available?”          
     Answer: There were no documents, samples, or witnesses presented 
     at  the  appraisal  hearing  related  to  the  availability  of  reasonable 
     matching siding                                                 
[Question]  2.  “Whether  the  award  includes  the  cost  of  repairing  the 
damaged siding by the method of harvesting or does it include replacing 
siding with new siding on every building?”                           
     Answer: The Appraisal Award Summary includes replacing the hail 
     damaged sides of siding only. The amounts awarded for matching  
     were  included  in  the  *  portion  of  the  award  below  the  panel’s 
     signatures.                                                     
[Question] 3. Whether the Total Award is $7,917,925.19 or $9,838,966.30? 
     Answer:  The  RCV  award  for  direct  hail  damage  is  an ACV  of 
     $7,431,620.31  and  an  RCV  of  $7,  917,925.19.  The  value  of 
     matching  siding  and  related  electrical  repair  is $1,921,071,11 for 
     replacing  the  elevations  of  siding  without  hail  hits  to  obtain  a 
     reasonably matching appearance. The panel made no determination 
     on  whether  the  policy  covered  matching  and  separated  out  the 
     number so the parties could interface the policy coverage with the 
     award. The totals for hail hit damage and matching are an ACV of 
     $9,352,691.42 and an RCV of $9,838,966.30                       
(Clarification Ltr. at 2.)                                                
K.   Procedural History                                              
Maplebrook filed suit in Hennepin County District Court on June 9, 2021, alleging 
breach of contract and seeking a declaratory judgment. (Compl. ¶¶ 35, 42.) Specifically, 
Maplebrook  alleges  that  Hartford  breached  the  terms  of  the  Policy  by  paying  only 
$6,243,025.32 for the repairs rather than the total RCV awarded by the appraisal panel, 
$11,038,810.89. (Id. ¶¶ 26, 28, 31–36.) Further, Maplebrook alleges that Hartford has 
failed to pay all pre-award interest owed. (Id. ¶¶ 37–45.) Hartford removed to this Court 
on June 30, 2021. (Notice of Removal.)                                    
The parties filed cross-motions for summary judgment on May 17, 2023. (See 
Def.’s Summ. J. Mot. [Doc. No. 65]; Pl.’s Summ. J. Mot. [Doc. No. 73].) Following the 
appraisal panel’s clarification and the parties’ supplemental briefing, the Court now rules 
on these motions.                                                         
II.  STANDARD OF REVIEW                                                   
Summary judgment is appropriate if “the movant shows that 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). “A fact is ‘material’ if it may affect the outcome of the lawsuit.” 
TCF Nat’l Bank v. Mkt. Intelligence, Inc., 

 (8th Cir. 2016). And a 
factual dispute is “genuine” only if “the evidence is such that a reasonable jury could 
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

 (1986). In evaluating a motion for summary judgment, the Court must view the 

evidence  and  any  reasonable  inferences  drawn  from  the  evidence  in  the  light  most 
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

 (1986).                                                     
Although the moving party bears the burden of establishing the lack of a genuine 
issue of material fact, the party opposing summary judgment may not “rest on mere 

allegations or denials but must demonstrate on the record the existence of specific facts 
which create a genuine issue for trial.” Krenik v. Cnty. of Le Sueur, 

 (8th 
Cir. 1995) (internal quotation marks omitted); see Celotex Corp. v. Catrett, 

 (1986); Anderson, 

 (“[The] mere existence of a scintilla of evidence 
in support of the plaintiff's position will be insufficient; there must be evidence on which 

the  jury  could  reasonably  find  for  the  plaintiff.”).  Moreover,  summary  judgment  is 
properly entered “against a party who fails to make a showing sufficient to establish the 
existence of an element essential to that party’s case, and on which that party will bear 
the burden of proof at trial.” Celotex Corp., 

.            
III.  DISCUSSION                                                          
Both parties move for summary judgment. Hartford first argues that it has already 

paid the full RCV as required by both the Policy and the Award, because the Award 
assumes harvesting as a method of repair and because Maplebrook’s disposal of the 
original siding breached the “Protect Property” Policy provision. (Def.’s Mem. [Doc. No. 
67]  at  21–29.)  Second,  it  contends  that  Maplebrook  should  be  sanctioned  under the 
doctrine of spoliation for destroying the old siding. (Id. at 29–30.) Third, Hartford asserts 
that Maplebrook’s demand for payment in the December 2021 invoice is unsupported by 

evidence of additional repairs. (Id. at 30–32.) Fourth, it argues that both the Award and 
the plain language of the Policy calculate the RCV based on 2019 construction costs, not 
2020 construction costs. (Id. at 32–35.) Finally, Hartford maintains that it has paid all 
pre-award interest owed to Maplebrook. (Id. at 35–38.)                    
For its part, Maplebrook first asserts that the appraisal panel determined that a full 

replacement of the siding was warranted and awarded a total RCV to reflect that. (Pl.’s 
Mem. at 10–13.) Second, Maplebrook contends that under the Policy, and confirmed in 
the Award, the RCV should be based on 2020 construction costs. (Id. at 13–15.) Third, it 
insists that it did not breach the Policy by repairing the properties and by not preserving 
the old siding. (Pl.’s Opp’n [Doc. No. 75] at 11–14.) Fourth, Maplebrook asserts that 

Hartford  misapplies  the  doctrine  of  spoliation.  (Id.  at  14–15.)  Fifth,  Maplebrook 
maintains that the December 2021 invoice reflects the full RCV as determined by the 
appraisal  panel.  (Id.  at  16–17.)  Lastly,  Maplebrook  contends  that  Hartford  owes 
additional pre-award interest, based on the date of notice of the claim, as well as post-
award interest from when the repairs were completed. (Id. at 20–24.)      

The Court finds that, with its clarification, the appraisal panel decided that on the 
facts presented to it, there was no reasonable matching replacement siding, including 
harvested  siding.  The  appraisal  panel,  however,  did  not  rule  on  whether  the  Policy 
covered  new  siding,  and  the  Court  now  holds  that  in  the  absence  of  a  reasonable 
matching  replacement,  the  Policy  covers  full  replacement  of  the  siding  with  new 
matching siding. Similarly, Hartford’s arguments that Maplebrook’s destruction of the 

removed siding violated the Policy or constituted sanctionable spoliation of evidence are 
unavailing. Concerning construction costs, the Court holds that the Policy is clear, and 
the  RCV  should  be  based  on  2019  rather  than  2020  construction  costs.  Concerning 
interest, the Court holds that the accumulation of pre-Award interest should be measured 
from  October  2,  2019  with  offsets  for  prior  payments  by  Hartford,  and  post-Award 

interest has accrued. Finally, concerning Maplebrook’s December 13, 2021 invoice, the 
Court  holds  that  the  evidence  of  record  is  insufficient  as  a  matter  of  law  to  prove 
Maplebrook’s expenditures.                                                
A.   Whether New Matching Siding Is Provided For By The Award        
Maplebrook reads the clarified Award to includes payment for matching siding for 

a  total  of  $9,838,996.30.  Maplebrook  argues  that  the  appraisal  panel  reviewed  the 
materials  provided  to  them  at  the  parties’  hearing  and  did  not  find  anything  that 
constituted a reasonable match, and agreed that new siding panels were needed to present 
a reasonably uniform appearance for Maplebrook’s homes. (Pl’s Supp. Br. [Doc. No. 91] 
at 3-6.) According to Maplebrook, the appraisal panel “only separated the numbers in 
case there was a dispute over [the Policy’s] coverage of the matching portion of the 

award amount[,]” which is a matter under the jurisdiction of the Court. (Id. at 6.) 
Hartford  reads  the  clarified  Award  to  “establish[]  that  because  [the  appraisal 
panel] was presented with no evidence ‘related to the availability of reasonable matching 
siding’[,]” the panel did not rule on whether the expense of new siding was covered. 
(Def’s Supp. Br. [Doc. No. 93] at 2.) Hartford argues that “[i]t is undisputed that there 
would have been a sufficient amount of harvested siding to make spot repairs to those 

buildings that sustained minor direct hail damage[,]” but because Maplebrook destroyed 
said siding, the appraisal panel “had no choice but to include the cost of replacing the 
siding/electrical on all buildings[.]” (Id. at 3; Def’s Supp. Reply Br. [Doc. No. 94] at 1-2.) 
As such, the Policy does not cover this expenditure.                      
     1.  Findings Of The Appraisal Panel As To Replacement Siding    

In the interest of efficiency and avoiding litigation, “there is a strong public policy 
in Minnesota favoring appraisals.” Quade v. Secura Ins., 

 (Minn. 
2012). Courts traditionally looked to the Minnesota Uniform Arbitration Act (“MUAA”) 
when reviewing appraisal awards in insurance disputes. Herll v. Auto-Owners Ins. Co., 

 (8th Cir. 2018) (citing QBE Ins. Corp. v. Twin Homes of French Ridge 

Homeowners Ass’n, 

 (Minn. Ct. App. 2010), among others).9  


9 While, as noted in this Court’s prior decision, recent case law has called this 
practice into question, Oliver v. State Farm Fire & Cas. Ins. Co., 

 (Minn. 
2020), the Court will follow the rulings of other judges within the district and continue to 
Under MUAA’s principles, appraisal awards are “attended with every presumption 
of validity” and “will not be vacated unless it clearly appears that it was the result of 

fraud . . . or wrongdoing on the part of the appraisers.” Mork v. Eureka-Security Fire & 
Marine Ins. Co., 

 (Minn. 1950). However, appraisal panels have more 
limited authority than arbitrators: they can “decide the ‘amount of loss’ but may not 
construe the policy or decide whether the insurer should pay.” Quade, 

; see also Auto-Owners Ins. Co. v. Second Chance Invs., LLC, 

 
(Minn. Ct. App. 2012), aff’d, 

 (Minn. 2013) (“[A]ppraisal proceedings 

and the appraisers’ task are distinct from judicial and arbitration proceedings, because 
appraisers make valuation determinations, but are not empowered to decide questions of 
law.”) (citation omitted). Courts defer to an appraisal panel’s factual determination of the 
amount of loss, but questions of liability are always reserved for the court. See Cedar 
Bluff Townhome Condo Ass’n v. Am. Fam. Mut. Ins. Co., 

 (Minn. 

2014).                                                                    
The appraisal panel’s clarification letter allows the Court to resolve any ambiguity 
in the original Award. In response to the Court’s first question. the panel stated that 
“[t]here were no documents, samples, or witnesses presented at the appraisal hearing 
related to the availability of reasonable matching siding.” (Clarification Ltr. at 2.) The 

best reading of the appraisal panel’s clarification is that the panel concluded that there 
was not reasonable matching siding of like kind and quality as a factual matter. Per the 

apply  MUAA’s  principles  to  appraisal  award  interpretation.  Maplebrook  Estates 
Homeowner’s Ass’n, 

 at *10 (internal citations omitted).   
well-established division of responsibilities between appraiser and court under Minnesota 
law, in the absence of allegations of fraud, misfeasance, malfeasance, or wrongdoing on 

the part of the appraisers (none of which are present in the instant case), this is a final and 
conclusive finding of fact. See Mork, 

. Hartford had the opportunity to 
present  evidence  that  if  removed  siding  had  been  preserved,  it  could  have  been 
“harvested” for use, see generally Miller Decl., to the appraisal panel. However, Hartford 
opted not to attend the appraisal panel’s proceedings. The appraisal panel was Hartford’s 
opportunity to be heard. To allow Hartford a second opportunity to present evidence, in 

the absence of any allegation that it was denied due process in the first instance10 or that 
the appraisal panel committed misconduct, would undermine the purpose of the appraisal 
process and conflict with well-established law.                           
Rather,  the  sole  question  before  the  Court  is  whether,  given  the  lack  of  any 
reasonable matching siding—whether obtained through harvesting or purchasing new 

siding for some buildings—the Policy covers full replacement with new siding. As stated 
by the appraisal panel in its answer to the third question posed by the Court, “[t]he panel 
made no determination on whether the policy covered matching and separated out the 
number[s]  so  the  parties  could  interface  the  policy  coverage  with  the  award.” 


10 Even if Hartford asserted such a claim, it would be unlikely to succeed, as there 
is no evidence that its voluntary non-attendance at the appraisal panel hearing violates 
due process. See Rose Hill Villas Owners Association, Inc. v. American Family Mutual 
Insurance Company, Case No. 20-cv-2191 (ECW), 

 at *10 (D. Minn. 
Nov. 10, 2021) (“Because [plaintiff] had notice of [defendant’s] argument[,] had the 
opportunity  to  present  evidence  to  the  contrary  at  the  appraisal,  and  did  not  do  so, 
[plaintiff] has not met its burden to vacate the appraisal due to a due process violation.”) 
(Clarification Ltr. at 2.) This is a question of coverage, and therefore the Court must 
determine its answer based on the Policy.                                 

     2.  Policy Coverage As To New Replacement Siding                
Interpretation of an insurance contract, including whether provisions in a policy 
are  ambiguous,  is  a  legal  question  for  the  courts.  See  Oakdale  Mall  Associates  v. 
Cincinnati Ins. Co., 

 (8th Cir. 2013); Carlson v. Allstate Ins. Co., 

 (Minn. 2008) (“General principles of contract interpretation apply to 
insurance policies.”) When interpreting an insurance contract, the federal court looks to 

state law. See W3i Mobile, LLC v. Westchester Fire Ins. Co., 

 (8th Cir. 
2011).                                                                    
“When interpreting insurance contracts, the policy must be construed as a whole, 
beginning with the plain and ordinary meaning of the policy's terms, as well as ‘what a 
reasonable person in the position of the insured would have understood the words to 

mean.’” Cedar Bluff Townhome Condo Ass’n v. American Family Mut. Ins. Co., 

 (Minn. 2014) (citing Midwest Family Mut. Ins. Co. v. Wolters, 

 (Minn. 2013)). If policy language is ambiguous, it must be interpreted 
in favor of coverage. Wanzek Const., Inc. v. Employers Ins. of Wausau, 

 (Minn. 2004). However, insurance policy provisions are ambiguous only when they 

are reasonably subject to more than one interpretation, and the court has no right to read 
an ambiguity into the plain language of an insurance policy. Oakdale Mall, 

.                                                                     
The plain language of the Policy provides that Hartford:             
a. “will not pay more for lost or damaged property than the least of: 
     (1)  The  Limit  of  Insurance  applicable  to  the  lost  or  damaged 
     property,                                                       
     (2) The amount it costs to replace, on the same premises, the lost or 
     damaged property with other property (a) of comparable material 
     and quality and (b) used for the same purpose; or               
     (3) The amount you actually spend that is necessary and reasonable 
     to repair or replace the lost or damaged property with other property 
     (a) of comparable material and quality and (b) used for the same 
     purpose                                                         
(Brandis Decl., Ex. A (Policy) at 123) (cleaned up).                      
The Policy’s language is not ambiguous: it covers replacement of lost or damaged 
property with other property of “comparable material and quality.” The appraisal panel 
found  that  there  was  no  proposed  reasonable  siding  of  “like  kind  and  quality[,]”  a 
functionally synonymous phrase to “comparable material and quality.”      
The Supreme Court of Minnesota considered a near-identical set of facts in Cedar 
Bluff Townhome Condo Ass’n. There, a hailstorm damaged the siding on the plaintiff’s 
buildings, but replacement panels with the same specifications were not available in the 
same color as existing panels. 

. The court held that the “appraisal 
panel  properly  concluded  that  siding  of  comparable  material  and  quality  required  a 
reasonable color match between the damaged and undamaged siding[,]” as “comparable” 
quality requires a reasonably close (if not identical) color match. 

. The 
court  deferred  to  the  appraisal  panel’s  determination  that  this  necessitated  the 

replacement of both damaged and undamaged siding to ensure a uniform level of quality 
and color match. 

.                                           
Hartford’s response is unavailing. Hartford cites to Elm Creek Courthome Ass'n v. 
State Farm Fire & Cas. Co., which held that an appraisal panel could reasonably find that 

harvested  siding  met  a  contractual  requirement  that  lost  property  be  replaced  with 
property of “comparable material, quality and used for the same purpose.” 

, 737-38 (Minn. App. 2022). However, while Elm Creek established that harvesting 
can meet this standard as a general matter, it does not require appraisal panels to find that 
harvested siding is of comparable material and quality. Rather, the Elm Creek court found 
that the appraisal panel was “within its authority to consider ‘harvesting’ in the context of 

determining [the cost of replacement.]” Id. at 739 (emphasis added).      
Here,  as  discussed,  the  appraisal  panel  found  that  there  was  no  reasonable 
replacement siding, harvested or not. The Court defers to the appraisal panel’s finding, 
and finds that according to the Policy, Hartford is required to pay for full replacement of 
all siding. As such, the Court grants Maplebrook’s motion for summary judgment and 

denies Hartford’s motion for summary judgment on this basis.              
B. Maplebrook’s Alleged Violation Of The Policy                      
Hartford argues that, based on Mr. Miller’s report, had Maplebrook stored the 
siding  removed  from  its  buildings,  as  Hartford  anticipated  and  included  in  its  cost 
estimates,  there  would  have  been  enough  harvested  material  to  repair  buildings  that 

suffered minimal damage. (Def’s Summ. J. Br. [Doc. No. 67] at 25.) However, because 
Maplebrook instead disposed of the removed siding, it violated the Policy’s requirement 
that Maplebrook “[t]ake all reasonable steps to protect the property from further damage” 
and “set the damaged property aside and in the best possible order for examination.” 
(Def’s Summ. J. Br. at 25-27 (citing Policy at 106).) Hartford argues that this meets the 
Policy’s exclusion of not paying for loss or damage resulting from “[n]eglect to use all 

reasonable means to save and preserve property from further damage at and after time of 
the direct physical loss or damage.” (Def’s Summ. J. Br. at 25-27 (citing Policy at 137).) 
As  such,  Hartford  is  not  required  to  pay  for  damages  resulting  from  Maplebrook’s 
destruction of the siding, i.e., the increase in cost relating to the need to replace all of the 
buildings’ siding and related electrical work.                            
Maplebrook argues that it has not violated the Policy, as it was not required to 

keep damaged siding in place or preserve the damaged siding under the terms of the 
Policy. Maplebrook argues that “there [was] no way that samples would have proven that 
harvesting was appropriate[,]” that Hartford had “ample warning that the repairs would 
be done and never told Maplebrook to keep samples[,]” and even if Maplebrook’s actions 
breached the agreement, the breach was not material, as “there was no matching siding 

available on the open market when [Hartford] relied instead on harvesting [and] Hartford 
chose not to attend the appraisal, so it was not deprived of the opportunity to present 
samples to the appraisal panel.” (Pl’s Summ. J. Reply Br. [Doc. No. 82] at 10-14.) 
“Exclusions in an [insurance] policy…are as much a part of the contract as other 
parts thereof and must be given the same consideration in determining what the policy 

covers.”  Bobich  v.  Oja,  

  (Minn.  1960).  Policy  exclusions  are 
construed narrowly and strictly against the insurer. See State Farm Fire and Cas. Co. v. 
ARC Mfg., Inc., 

 (D. Minn. 2014). Moreover, ambiguous policy 
language must be interpreted in favor of coverage. See Wanzek Const., Inc. v. Employers 
Ins. of Wausau, 

 (Minn. 2004). Under Minnesota law. an insurer 
may defeat liability by showing prejudice from an insured party’s delay in giving notice 

of a claim. See Hooper v. Zurich American Ins. Co., 

 (Minn. 1996) 
(citing Reliance Ins. Co. v. St. Paul Ins. Cos., 

, 924–25 (Minn. 1976). 
However, “[l]ack of notice [of the claim] does not, in and of itself, establish prejudice.” 
Farmers Ins. Exch. v. Hallaway, 

 (D. Minn. 2008) (citing 
Hopper, 

.) Rather, the insurer “must show that during the period where 
notice should have been given, the insurer was prejudiced in an articulable manner.” (Id.) 

The Court finds that Maplebrook did not violate the Policy. As an initial matter, 
neither party interprets whether protectible “property” actually includes the siding that 
has  been  removed  from  Maplebrook’s  building.  The  Court  has  found  no  case  law 
interpreting a similar policy as treating potentially reusable building materials as covered 
“property.” As “property” is not defined in the Definitions section of the Policy (Policy at 

106-08),  “property”  is  an  ambiguous  term,  and  ambiguous  policy  language  must  be 
interpreted in favor of coverage, the Court construes “property” to exclude the materials 
in question.                                                              
Even assuming that the removed siding is protectible “property” under the Policy, 
Hartford’s arguments are still unavailing. In all of the cases cited by Hartford for the 

proposition that Maplebrook breached the Policy, where elements of a building were 
altered or removed in ways that made an insurer’s evaluation or argument about what was 
owed more difficult, the building owner’s work on the building that interfered with the 
insurer’s determination of damages happened before the insurer could view the building, 
and in most cases before they were given any notice of a potential claim. See Cornish 
Contracting and Real Estate, LLC v. Travelers Indem. Co., No. CV065001208, 

 at *2-3 (Sup. Ct. Conn. Apr. 2, 2008) (repair work begun on November 19, 
notice only reached insurer on November 23, no action taken until November 26); see 
also Triple Inv. Grp., LLC v. Hartford Steam Boiler Insp. & Ins. Co., 

 (E.D. Mich. 2014) (work performed one month before claim noticed); Carl v. Or. 
Auto. Ins. Co. v. North Pac. Ins. Co., 

 (Ore. 1996) (work performed one year 
before claim noticed).                                                    

Conversely, Hartford was given notice of Maplebrook’s claim in September 2019, 
well before the challenged work on the buildings began. Hartford availed itself of the 
opportunity  to  send  J.S.  Held  to  evaluate  the  damage  in  October  2019.  (See  Miller 
Damage Report; First Sarp Decl., Ex. K (Hartford Statement of Loss).) Hartford was thus 
aware of the condition of the siding, and could have sought to take samples of the siding 

at this point. Hartford became aware that Maplebrook opposed the use of harvesting to 
replace siding by May 2020. (See First Sarp Decl., Ex. N (Gavnat Statement of Loss) at 
2.) There is undisputed testimony from Mr. Pierce that he informed Hartford “several 
times” that the siding was being replaced prior to its replacement, but that Hartford did 
not retrieve any pieces of it. (Pierce Dep. 47:6-48:14.) The removed siding was not 

disposed of until September or October of 2020, at which point essentially all of the 
siding on the buildings had been completely replaced. (Muelken Dep. at 55:4–10.) The 
first express request in the record from Hartford to preserve materials of any kind came 
on September 28, 2020, with a request to “[leave] any damaged property that has not yet 
been agreed to or accepted [] as is, if feasible, to ensure additional inspections of the 
damages can continue to occur, if necessary[.]” (First Sarp Decl., Ex. T (Sept. 2020 

Hartford Statement of Loss).)                                             
The facts of this case are far afield from Hartford’s cited cases, where due to an 
insured party’s actions either before the insurer was given notice at all or before the 
insurer  had  an  opportunity  to  observe  the  damage,  the  insurer’s  ability  to  make  an 
independent  determination  of  costs  was  prejudiced.  Rather,  here,  Hartford  had  the 
opportunity to evaluate the damage sufficiently that it could determine its position on the 

feasibility of harvesting and the concomitant cost of repair long before the siding was 
removed.  Moreover, even if Maplebrook should have preserved the removed siding, 
Hartford did not attend the appraisal hearing and present evidence—such as J.S. Held’s 
report and documentation or Mr. Miller’s testimony, now presented to the Court—that but 
for the disposal of the removed siding, it could have served as reasonable matching 

replacement siding pursuant to the Policy. The appraisal panel hearing, as the mutually 
agreed-upon finder of fact in this dispute, was Hartford’s opportunity to be heard, and its 
failure to attend obviates any prejudice that could have resulted from its argument at the 
hearing  being weakened by Maplebrook’s alleged breach. As such, the Court denies 
Hartford’s motion for summary judgment on this basis.                     

C. Maplebrook’s Alleged Sanctionable Spoliation Of Evidence          
Hartford  argues  that  Maplebrook  should  receive  sanctions  for  spoliation  of 
evidence in the form of denying it recovery of “any additional proceeds for ‘matching’.” 
(Def’s Summ. J. Br. at 29.) Hartford argues that Maplebrook violated its duty to preserve 
the removed siding as relevant material to an expected future litigation, and the fact that 
the process began with an appraisal is not relevant to whether Maplebrook owed this 

duty. (Id. at 29-30; Def’s Supp. Br. at 6-8.) Hartford also argues that, under Minnesota’s 
standard for spoliation provided by Miller v. Lankow, 

 (Minn. 2011), 
whether Maplebrook’s destruction of the siding was done in good faith or bad faith is 
irrelevant to whether it can be sanctioned for spoliation. (Def’s Sur-Reply [Doc. No. 101] 
at 1-3.)                                                                  
Maplebrook argues that under federal law, in order for the Court to sanction it for 

spoliation, there must be a finding that it intentionally destroyed the siding in a way 
indicating a desire to suppress the truth. (Pl’s Summ. J. Br. at 14-15.) Maplebrook argues 
that  this  is  not  demonstrated  by  the  facts,  as  Hartford  had  sufficient  notice  that 
Maplebrook  was  disputing  the  value  of  the  loss  of  the  siding  but  did  not  instruct 
Maplebrook  to  preserve  samples.  (Id.)  Maplebrook  also  argues  that  it  meets  the 

requirements to avoid sanction under Miller v. Lankow. (Pl’s Supp. Reply Br. [Doc. No. 
96] at 3-4.) Maplebrook finally argues that, to the extent it could be sanctioned for 
spoliation, full preclusion of coverage for the relevant costs would be an inappropriate 
and disproportionate sanction. (Pl’s Summ. J. Br. at 115.)                
Federal courts have the inherent power to impose sanctions for destruction, or 

“spoliation,”  of  evidence.  Spoliation  sanctions  require  a  significant  showing.  See 
Greyhound Lines, Inc. v. Wade, 

 (8th Cir. 2007) (“A spoliation-of-
evidence sanction requires ‘a finding of intentional destruction indicating a desire to 
suppress the truth.’”) (quoting Stevenson v. Union Pac. R.R. Co., 

 (8th 
Cir. 2004)). “If spoliation is determined, the Court has broad discretion in determining an 
appropriate sanction and considers the culpability of the party and timing of the actions.” 

Peterson v. Washinton County, Civil No. 18-2640 (DWF/ECW), 

 at *3 
(D. Minn. June 30, 2021) (citing Dillon v. Nissan Motor Co., Ltd., 

 (8th 
Cir. 1993).                                                               
The Eighth Circuit has held that in matters before a federal district court under 
diversity jurisdiction, “federal law applies to the imposition of sanctions for the spoliation 
of  evidence.”  Sherman  v.  Rinchem  Co.,  

  (8th  Cir.  2012).  While 

Minnesota law provides that “even when a breach of the duty to preserve evidence is not 
done in bad faith, the district court must attempt to remedy any prejudice that occurs as a 
result  of  the  destruction  of  the  evidence[,]” Miller,  

,  federal  law 
requires a finding of “intentional destruction indicating a desire to suppress the truth.” 
Sherman, 

 (citing Stevenson, 

). Where a direct conflict 

between federal and state spoliation rules exists, federal rules apply. 

 As such, as held 
in Sherman, the standard expressed in Miller is inapplicable and the federal standard 
applies. 

                                                              
The evidence before the Court does not support the inference that Maplebrook 
intentionally destroyed the removed siding in a manner indicating a desire to suppress the 

truth. As discussed supra, Hartford was given notice of Maplebrook’s claim in September 
2019, and was given notice that Maplebrook opposed the use of harvesting to replace 
siding by May 2020 at the latest. Yet, the removed siding was not disposed of until 
September or October of 2020. At that point, essentially all of the siding on the buildings 
had  been  completely  replaced.  During  that  intervening  year,  Hartford  had  numerous 
opportunities  to  obtain  samples  of  the  siding  or  expressly  request  that  Maplebrook 

preserve samples. Yet, Hartford did not obtain a sample and did not expressly request that 
Maplebrook preserve materials of any kind, let alone specifically request that samples of 
the siding be preserved, until September 28, 2020.                        
While Maplebrook’s disposal of the siding may have fallen short of its state-law 
duty to “preserve relevant evidence for use in litigation” regardless of whether it acted in 
good or bad faith, Miller, 

, federal law requires a showing of an intent 

to hide the truth. Hartford cites no federal case law involving a comparable level of 
access  to  eventually-destroyed  evidentiary  material  where  a  spoliation  sanction  was 
granted. Maplebrook’s conduct does not rise to the level of bad faith, and in the absence 
of bad faith, the Court cannot grant a spoliation sanction. As such, the Court denies 
Hartford’s motion for summary judgment on this basis.                     

D. Use Of 

 Pricing To Determine Value                    
Hartford argues that, pursuant to the plain language of the Policy, the value of the 
damaged property (and thus the covered cost of replacement) should be determined in 
light of the costs at the time of the damage, i.e., based on 2019 pricing. (Def’s Summ. J. 
Br. at 32-35.) Hartford argues that the appraisal panel did not make a finding that 2020 

pricing should apply because of price increases between 2019 and 2020, but rather agreed 
that which pricing applied would be determined by reference to the Policy, and included 
both 2019 and 2020 pricing in the Award and appended statements. (Id.)    
Maplebrook argues that the appraisal panel decided, by reference to the appended 
statements, that 2020 pricing should be used. (Def’s Summ. J. Br. at 32-25.)  Maplebrook 

argues that this follows logically, as the appraisal was not held until 2020, and in the 
intervening period, prices increased for certain types of repairs. (Id.)  
As with the parties’ dispute concerning whether matching siding and electrical is 
covered by the Award, the best reading of the Award in light of the appraisal panel’s 
clarification is that the panel determined how much would be owed under either 2019 or 
2020 pricing, and left the issue of whether there was coverage for increased repair costs 

for the Court. Much as the appraisal panel provided RCV amounts both with and without 
matching siding and electrical and left it to the Court to determine which amount should 
apply, the panel did the same here. This is further indicated by Mr. Moe’s email stating 
that:                                                                     
The appraisal panel unanimously agreed that the statements do not make 
any decision regarding policy provisions or define policy coverages and 
that these are coverage questions to be resolved between both sides. Scott 
Moe and Brad Langerman agree that the 2020 percentage increases are not 
a part of the 2019 award amounts.                                    

(First Sarp Decl., Ex. R (Appraisal Award and Statements) at 7.) As such, the Court must 
determine whether the Policy covers increased costs for repair.           
Hartford’s reading of the Policy language is persuasive. The Policy states that 
“[i]n the event of covered loss or damage, we  will determine the value of  Covered 
Property at the actual amount spent to repair, replace or rebuild the damaged property as 
of the time of the loss or damage, at the same site or another site[.] (Policy at 121) 
(emphasis added). This language is unambiguous, defining the damages under the RCV 
measure—and thus the maximum covered costs—at the time of loss.           

While the case law cited by Hartford is not binding on this Court, the rulings of 
this Court’s sister districts interpreting similar provisions in similar insurance contracts 
are persuasive. See SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 
9291  (HB),  

  at  *7-10  (S.D.N.Y.  Oct.  31,  2006)  (explaining  the 
background  and  goals  of  RCV  insurance  policies  and  holding  that  policy  language 
providing that “replacement cost be determined ‘as of the time and place of loss’ dictates 

that the relevant benchmark is the amount it would cost to reproduce the [World Trade 
Center] as of the time and place of loss—i.e., as it existed early on the morning of 
September 11, 2001.”); see also Snoqualmie Summit Inn, Inc. v. Travelers Prop. & Cas. 
Co. of Am., No. CV06-0517 MJP, 

 at *2 (W.D. Wash. Mar. 5, 2007). 
Maplebrook’s  counterarguments  are  unavailing. As  discussed  supra,  the  Court 

disagrees with its reading of the appended statements from two members of the appraisal 
panel as deciding that 2020 prices apply, rather than making factual findings as to 2019 
and 2020 pricing and leaving the decision of the applicable measure of damages to the 
Court. Similarly, while Maplebrook cites Axis Surplus Ins. Co. v. Condor Corp., Civil No. 
20-789  (DSD/KMM),  

  at  *2-3  (D.  Minn.  Feb.  3,  2023)  for  the 

proposition that 2020 pricing should apply, this case is inapposite. In Axis Surplus, the 
contractual language governing RCV valuation did not include time-of-loss language, but 
rather a requirement that the insured party actually repair or replace the insured property 
(and do so as soon as possible after the damage) before they would be paid. Id. at *2. The 
Court determined that more recent (July 2022) price lists would be used to determine the 
cost rather than prices contemporaneous to the May 2018 damaging event because the 

insurer had substantially delayed the case. Id. at *3. Conversely, here, there is no such 
delay.                                                                    
The Award, as clarified by the appraisal panel, leaves the determination of the 
appropriate measure of damages to this Court. The Policy is clear that the benchmark is 
the value of the property at the time it was damaged or lost, which in this case is 2019. As 
such, the Court denies Maplebrook’s motion and grants Hartford’s motion for summary 

judgment on this basis.                                                   
E. Interest Calculation                                              
Hartford argues that, pursuant to Minnesota law, pre-award interest is calculated 
from  the  date  that  Maplebrook  provided  Hartford  with  loss  statements  sufficiently 
detailed to constitute a notice of claim, which occurred on May 6, 2020. (Def’s Summ. J. 

Br. at 35-27.) Hartford also argues that it is entitled to offsets for payments made to 
Maplebrook before the Award was issued, as otherwise it is overpaying interest. (Id. at 
37-38.) Finally, Hartford argues that it does not owe post-judgment interest unless the 
Court determines that it owes additional costs for matching siding and electrical and/or 
2020 pricing. (Def’s Summ. J. Reply Br. [Doc. No. 80] at 9-10.)           

Maplebrook argues that Hartford owes pre-Award interest measured from October 
2,  2019,  as  it  argues  that  it  provided  Hartford  with  sufficient  notice  to  fulfill  the 
requirements  of  Minnesota  law  as  of  that  date.  (Pl.’s  Opp’n  at  20–24.)    Moreover, 
Maplebrook  argues  that  as  Hartford  owes  additional  costs  for  matching  siding  and 
electrical and/or 2020 pricing, it is liable for additional pre and post-Award interest. 

     1.  Start Date                                                  
Minnesota law provides that the default rule for calculating interest on damages 
computes damages from “the time of the commencement of the action or a demand for 
arbitration, or the time of a written notice of claim, whichever occurs first[.]” Minn. Stat 
§ 549.09 subd. 1(b). To qualify as a notice of claim, a “written notice must be sufficient 
to allow the noticed party to determine its potential liability from a generally recognized 

objective standard of measurement.” Blehr v. Anderson, 

, 620-21 (Minn. 
Ct. App. 2021). This does not require a demand for a specific amount of money. Id. at 
621. A notice of claim for an insurance claim must be sent from the claimant to the 
insurer—a  report  generated  entirely  by  the  insurer  does  not  count.  Elm  Creek,  971 
N.W.2d at 741.                                                            

Whether notice is sufficient to trigger the beginning of statutory interest is a fact-
specific inquiry. Selective Ins. Co. of South Carolina v. Sela, 

, 867-69 
(D. Minn. 2020), aff’d 

 (8th Cir. 2021) (holding that interest began 
running from date that defendant submitted insurance claim rather than date that suit was 
filed, as filing an insurance claim was necessarily a claim for damages); Creekview of 

Hugo Ass'n, Inc. v. Owners Ins. Co., 

 (D. Minn. 2019); 
Herll v. Auto Owners Ins. Co., No. 15-CV-3104 (MJD/FLN), 

 at *3-4 
(D. Minn. Oct. 2, 2018); Housing and Redevelopment Auth. of Redwood Falls v. Housing 
Auth. Prop. Ins., No. 14-cv-4741 (PAM/HB), 

 at *2 & n.2 (D. Minn. 
Nov. 8, 2017).                                                            

Maplebrook’s notice on October 2, 2019 was sufficient to constitute a valid notice 
of claim under state law. Hartford first received notice that some amount of damage had 
occurred to Maplebrook’s properties on or prior to September 9, 2019, in response to 
which  Hartford  acknowledged  that  Maplebrook  had  made  a  claim  but  sought  more 
information. (See Brandis Decl., Ex. C (Sept. 9, 2019 Email).) On October 2, 2019, Mr. 
Pierce sent Mr. Becker an estimate, stating that it was “the initial estimate for roofs only. 

We pulled ITELS for the 4 different siding colors. As soon as we have that we will 
updat[e] the sides, soft metal, AC and gutters.” (First Sarp Decl., Ex. Y.) Mr. Pierce’s 
email therefore included cost estimates for the roofs and provided information about what 
other parts of the structures Maplebrook believed would need repair or replacement. Also 
in October, Hartford’s representatives inspected Maplebrook’s damaged buildings. (See 

Miller Damage Report; First Sarp Decl., Ex. K (Hartford Statement of Loss).)  
This is a greater degree of detail in a written communication from the claimant to 
the insurer than was found sufficient for a valid notice of claim in Sela. There, following 
a hailstorm that caused damage to his property:                           
Sela submitted a claim to Selective on July 8, 2015. In response, Selective 
sent an independent appraiser (Bryan Walton) to inspect the property. After 
briefly examining the damage, Walton told Sela that he had “a catastrophic 
claim”  and that Walton  would  “not  be  handling it  any  longer.” Walton 
submitted a loss report to Selective. BT Pls. Ex. 2. In his report, Walton 
noted that Sela told him “that the entire exterior of [the] dwelling was 
redone approximately 3 years ago.”                                   
About three weeks later, Selective sent two of its own employees—David 
Clark and Charlie Hubbard—to inspect Sela's property. Clark and Hubbard 
(accompanied by Sela) spent several hours examining the damage. Sela told 
Clark and Hubbard that the exterior of the home had been completely re-
done  five  or  six  years  ago.  Sela  also  explained  that  the  property  had 
sustained  damage  in  a  prior  hailstorm,  and  that  Lexington[,  another 
insurer,] had indemnified him for that damage…By the time that Clark and 
Hubbard finished their inspection, they knew that some of the damage from 
the 2010 hailstorm had been repaired and some of it had not. Sela later 
submitted photos to Selective on which he marked portions of his property 
that he had not repaired after the 2010 hailstorm.                   
455 F.Supp.3d at 846. Sela’s initial claim on July 8, 2015 contained essentially no detail 
about the damage, but Judge Schiltz treated it as sufficient, because filing a claim was 
implicitly a demand for compensation and “the information that Sela provided would 
have enabled Selective to assess its potential liability.” Id. at 869. The Eighth Circuit 
affirmed, holding that notice was sufficient, as “Selective knew from the loss notice that 
there was hail damage to the roof of a property covered by a $1.6 million policy. Three 
days after the notice, Selective assigned its first adjuster. And two days after that, the 
adjuster was investigating the damage.”  

.                 
The example provided by Sela most closely tracks the facts of this case, and Sela 
is the binding Eighth Circuit case that most closely follows the standard espoused by the 
Minnesota Court of Appeals in Blehr v. Anderson.11 As such, the Court holds that pre-

11  While  the  holdings  of  Herll  and  Housing  and  Redevelopment  Authority  of 
Redwood  Falls—cited  by  Hartford—have  not  been  overturned,  as  Judge  Tostrud 
explained, neither case engages with Blehr or its progenitor, Indep. Sch. Dist. 441 v. 
Bunn-O-Matic Corp., No. C0-96-594, 

 (Minn. Ct. App. Dec. 3, 1996), 
which set the standard in this area. See Creekview of Hugo Ass'n, Inc., 

.                                                                     
judgment and pre-Award interest should be measured from October 2, 2019, and grants 
summary judgment to Maplebrook on this basis.                             

     2.  Offsets                                                     
Hartford argues that it is “entitled to offsets for the payments it made during the 
course of the claim leading up to appraisal.” (Def’s Summ. J. Br. at 37-38.) Maplebrook 
is silent as to this argument.                                            
By statute, pre-award interest is owed only on pecuniary damages. 

, subd. 1(b). The purpose of pre-award interest is to “(1) compensat[e] the plaintiff 

for the loss of use of the money, and (2) promot[e] settlement.” Creekview of Hugo Ass'n, 
Inc., 

. Both state and federal courts have held that once an insurer 
has made payment to the insured party, the insured party has “[the] money in hand and 
needs no compensation for the loss of its use.” 

; see also Elm Creek, 971 
N.W.2d at 743.                                                            

Here, Hartford made substantial payments to Maplebrook prior to Maplebrook’s 
demand for appraisal and the panel’s subsequent Award. As Maplebrook has made no 
argument against granting offsets and raised no countervailing case law, the Court holds 
that while Maplebrook is entitled to pre-award interest, this entitlement comes with an 
offset for Hartford’s prior payments, and grants summary judgment to Hartford on this 

basis.                                                                    
     3.  Post-Award Interest                                         
Maplebrook  seeks  post-award  interest  on  the  unpaid  portion  of  the  Award. 
Hartford argues that it is not obligated to pay post-Award interest, as “[u]nless and until 
Maplebrook establishes it is entitled to additional monies under the Award for matching 
and/or 2020 price increases, Hartford's payment on May 11, 2021 fully satisfied the 

Award[.]” (Def’s Summ. J. Reply Br. at 9-10.)                             
“In a diversity action, state law governs prejudgment interest; federal law governs 
postjudgment interest.” Happy Chef Sys., Inc. v. John Hancock Mut. Life Ins. Co., 

 (8th Cir. 1991). Under Minnesota law, post-award interest is governed 
by 

, subdivision 2, which provides that interest shall accrue “from 
the time that [the judgment or award] is entered or made until it is paid[.]” The applicable 

interest rate is ten percent per year until paid. 

 at subd. 1(c)(2). Conversely, federal law 
provides for post-judgment interest by calculating “from the date of the entry of the 
judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, 
as published by the Board of Governors of the Federal Reserve System, for the calendar 
week preceding the date of the judgment.” 

(a). Interest is computed 

daily to the date of payment and compounded annually. 

(b).  
This Court previously considered the distinction between post-appraisal award 
interest and post-judgment interest in Savanna Grove Coach Homeowners' Ass'n v. Auto-
Owners Ins. Co., No. 19-cv-1513 (ECT/TNL), 

 (D. Minn. Jan. 29, 
2020). There, Judge Tostrud held that “post-award interest is understood to mean interest 

beginning  upon  the  issuance  of  the  appraisal  award,  and  post-judgment  interest  is 
understood to mean interest beginning upon the entry of judgment.” Id. at *9 (emphasis 
added). As such, for interest accruing after the appraisal award was issued, but before a 
judgment is entered by the federal court, Minnesota state law applied. The Court finds 
Judge Tostrud’s analysis persuasive, and follows the Court’s prior ruling. 

As discussed, supra, the Court grants summary judgment to Maplebrook on the 
issue  of  whether  the  Award  and  Policy  entitle  it  to  payment  for  new  matching 
replacement siding, and to Hartford on the issue of whether 2019 or 2020 costs apply. As 
such, Maplebrook is entitled to post-Award interest on the outstanding amount due for 
matching only, and grants in part and denies in part Maplebrook’s motion on this basis. 
Post-award interest will be calculated at 10% per year on the unpaid balance of the 

appraisal award from the time of the Award until entry of judgment, while any post-
judgment interest will be calculated pursuant to federal law.             
F.  Disputed Payment On The December 13, 2021 Invoice                
Hartford  argues  that  it  is  not  obligated  to  pay  the  outstanding  balance  of 
$486,304.88 from Maplebrook’s December 13, 2021 invoice, as the Policy only requires 

that, under an RCV calculation, Hartford pay for the least of the actual amount that it 
costs  to  repair  the  property  or  the  amount  Maplebrook  actually  spent  to  repair  the 
property.  (Def’s  Summ.  J.  Br.  a  30-31.)  Hartford  argues  that  Maplebrook  has  not 
provided sufficient evidence that it actually paid for additional repairs or what work was 
actually performed, as the invoice and deposition testimony of Maplebrook’s contractors 

provide little information and suggest that no additional expenditures covered by the 
Policy were incurred. (Id. at 31-32.)                                     
Maplebrook argues that it provided an invoice to Hartford through its contractor, 
Capital, and that this is sufficient evidence of its repair work for payment to be owed by 
Hartford.  (Pl.’s  Opp’n  at  16-17.)  Maplebrook  argues  that  Hartford  provides  no 
documentary evidence to support its supposition that Capital either did not perform the 

claimed  work  or  that  said  work  was  not  covered  by  the  Policy,  and  suggests  that 
Hartford’s argument creates a new, unclear threshold of evidence required to prove that it 
paid the RCV amount to Hartford’s satisfaction. (Id.)                     
The Policy’s provision that limits payment to the least of the insurance limit, the 
cost of replacement, and the amount actually spent is not ambiguous. (See Policy at 106.) 
Therefore,  Hartford  is  only  liable  to  pay  the  lowest  of  “the  limit  of  liability,  the 

replacement cost for equivalent construction and use, or the amount actually spent to 
repair the damage.” See Estes v. State Farm Fire & Cas. Co., 

 (Minn. Ct. 
App. 1984) (considering a similar provision). The remaining dispute is how much was 
actually spent on covered repairs, which was not considered by the appraisal panel.  
This Court considered a similar claim in Savanna Grove Coach Homeowners' 

Ass'n. There, the defendant insurer refused to pay the difference between what it had 
already paid and the  amount of an appraisal award, arguing that the plaintiff’s final 
invoices for the project were insufficient to show that the plaintiff had paid, and therefore 
was not obligated to pay more than the amount actually spent. 

 at *3, 
*5. Judge Tostrud disagreed with the defendant and, “recognizing that doubts do not 

create a triable controversy,” held that the plaintiff’s record of payment—which included 
itemized invoices—was sufficient. Id. at 6-7. Judge Tostrud found that the plaintiff’s 
responsibilities under the insurance policy—to provide an inventory of property, permit 
inspection of property and records proving loss or damage, allow questioning under oath, 
and to cooperate with an investigation—did not require a more fulsome production. Id. 
Judge Tostrud noted that while the defendant alleged that the plaintiff’s final invoice was 

“simply pegged to match the Appraisal Award[,]” it cited no evidence supporting its 
interpretation. Without evidence, “supposition about why the numbers align does not 
create a genuine fact dispute.” Id. at 7 (citing McConnell v. Anixter, Inc., 

 (8th Cir. 2019).)                                                     
As in Savannah Grove, Hartford argues that Maplebrook’s invoice is insufficient 
to show that they have incurred covered expenditures. Moreover, the Policy contains 

near-identical general duties for Maplebrook in the event of a loss or damage: prompt 
notice; protection of property from further damage; provision of a detailed inventory of 
lost or damaged property to Hartford; permission for Hartford to inspect the property and 
Maplebrook’s records as required; a signed and sworn proof of loss statement within 60 
days of Hartford’s request; and a general duty to cooperate.  (See Policy at 106.) The 

Policy also requires Maplebrook to allow Hartford to “examine any insured under oath” 
on matters relating to the insurance policy or claim. (Id.)               
However, while Judge Tostrud found that the record submitted by the plaintiff in 
Savannah Grove was “extensive,” 

 at *5, the same cannot be said for 
Maplebrook’s record. The December 13, 2021 invoice contains essentially no information 

about what work is being invoiced, saying only that it was for “All repair as outlined in 
the  adjusters  summary  and  appraisal  award[.]”  (Dec.  13,  2020  Capital  Invoice.)  No 
witnesses  could  identify  the  specific  work  to  which  the  final  invoice  corresponded, 
although Mr. Pierce believed that it concerned “deck painting and [] HVAC” work.  (See 
McLarty Dep. at 60:6–62:4; Pierce Dep. at 82:3–86:7; Muelken Dep. at 109:2-25.) Mr. 
Muelken stated that he did not have any involvement in coming up with the invoice 

amount, even though he was the representative of the contractor performing the work, 
and that “[the invoice] was requested from Gavnat so they can have that to submit to the 
carrier.”  (Muelken  Dep.  at  109:9-11.)  Together,  the  evidence  suggests  that,  as  the 
defendant in Savannah Grove posited, the December 13, 2021 invoice was not for work 
performed but rather simply pegged to match the Award.                    
Even assuming that some work was performed, there is insufficient evidence in the 

record  before  the  Court  to  find  for  Maplebrook.  No  reasonable  jury  could  find  for 
Maplebrook in the absence of any testimony specifying what work was covered by the 
December 13, 2021 invoice. Mr. Pierce’s speculation that the invoice concerned “deck 
painting and [] HVAC” work, without any documentary evidence or even confirmation by 
the contractor performing the work, falls far short of establishing “specific facts which 

create a genuine issue for trial.” Krenik, 

 (8th Cir. 1995); see also Zayed v. 
Associated Bank, N.A., 

 (8th Cir. 2019) (“To show a genuine dispute of 
material fact, a party must provide more than conjecture and speculation.”) 
There is no genuine issue of material fact concerning Maplebrook’s December 13, 
2021 invoice. As such, the Court denies  Maplebrook’s  motion and grants Hartford’s 

motion for summary judgment on this basis.                                
IV.  CONCLUSION                                                           

Accordingly, based on the submissions and the entire file and proceedings herein, 
IT IS HEREBY ORDERED that                                                 
1.   Defendant’s Motion for Summary Judgment [Doc. No. 65] is GRANTED 
     IN PART and DENIED IN PART;                                     
2.   Plaintiff’s Motion for Summary Judgment [Doc. No. 73] is GRANTED IN 
     PART and DENIED IN PART                                         

LET JUDGMENT BE ENTERED ACCORDINGLY                                       


Dated: February 29, 2024             s/ Susan Richard Nelson              
                                SUSAN RICHARD NELSON                 
                                United States District Judge