from the Iowa District Court for Polk County, Robert B.
Creek appeals the district court's rejection of an
appraisal report. AFFIRMED IN PART, REVERSED IN PART, AND
Timothy D. Johnson of Roeder Smith Jadin, P.L.L.C.,
Bloomington, Minnesota, and Anthony R. Epping of Epping Law
Office, P.C., Des Moines, for appellant.
M. Delange and Jeff M. Margolin of Hopkins & Huebner,
P.C., Des Moines, for appellee.
by Mullins, P.J., and Bower and McDonald, JJ.
August 2012, a hailstorm struck the Walnut Creek Townhome
Association ("Walnut Creek" or "the
association"), a housing community located in Urbandale.
The association submitted an insurance claim to its insurer,
Depositors Insurance, which denied most of the claim. Walnut
Creek subsequently brought an action against Depositors for
breach of contract and to seek a declaratory judgment. Before
trial, the parties went before an appraisal panel. The panel
found the association sustained approximately $1.4 million in
damages as a result of the August 2012 hailstorm. The
district court, however, concluded the association was not
entitled to any relief. Walnut Creek now appeals.
August 2012, Walnut Creek contained thirty-six multi-family
buildings. Buildings in the association were constructed
between 2004 and 2006. The association is governed by a board
2011, the board had discussions about the necessity of
repairing roofs in the association. It hired a roof
inspector, Marcus Harbert, to review the association's
buildings. Harbert noticed issues with the shingles of the
roofs he inspected. The shingles Walnut Creek primarily used
were known as CertainTeed New Horizon shingles. New Horizon
shingles, several experts testified, are known to have a
manufacturer's defect that causes cracking and crazing in
the shingle appliqué, and significant granule loss in
the shingle. At a board meeting in June 2012, a
representative from Harbert's employer told the board the
shingles "could possibly be faulty." In response,
the board formed a roofing committee.
August 8, 2012, a hailstorm hit Urbandale and the surrounding
area, including the association. The hail in the neighborhood
was reported to be "pea size" to "dime
size." Association members reported leaking roofs, loose
shingles, and grit or grain coming off the roofs after the
August 2012, "within a week" of the storm, Harbert
inspected the roofs again. He did not observe any hail
impacts significant enough to warrant an insurance claim.
Harbert recommended the association follow through with a
warranty claim for the defective shingles. Coincidentally,
Harbert lived in Walnut Creek for a year, and testified
another storm in September 2013 blew shingles off roofs.
Harbert also observed the roofs again in May 2015 and
concluded the roofs had sustained two to three hail hits per
square,  but that the only reason to replace the
roofs was the manufacturer's defect.
September 2012, Walnut Creek had a roofing renovator, Nick
Waterman, inspect the roofs. He concluded the roofing
"definitely" had hail damage, noting "anywhere
from eight to twelve hits" per square. Waterman
testified his standard practice was to ignore hail hits to
the appliqué because such damage is "not accepted
in the insurance-related field." He would, in certain
circumstances, double the size of the area he sampled to make
up for the fact the appliqué accounted for roughly
half the area of the individual shingle. In this case, he
testified he "voided" the appliqué because
he was aware of the manufacturer's defect. Waterman also
testified he observed hail damage to the "soft metal,
fascia, gutters, air conditioner units, [and] window
engineers from Haag Engineering testified: Robert Danielson
and Richard Herzog. Haag Engineering was retained by
Depositors to inspect the association buildings in December
2012. The firm prepared a report on its findings. Danielson
noted there were nine "hail events" in the
Urbandale area between 2006 and September 2012. Danielson
also noted one building, Building 19, did not have the New
Horizon shingle. The Haag Engineering report states the
appliqué shingles were "generally in poor
condition" but the "three-tab shingles [on Building
19] were generally in good to fair condition with respect to
weathering." Danielson testified he looked for
fractures, punctures, ruptures, bruises, or holes to conclude
a roof was damaged by hail. He did not see signs of that. He
did observe granular loss in the shingles. Herzog testified,
given the weight of the shingles, the hail in the community
would have been of insufficient size to cause
damage. The Haag Engineering report further
stated, of nineteen fractures and punctures on the vinyl
siding, most were either not consistent with hail damage or
not caused by the most recent hail event. Only one, the
report concluded, was consistent with recent hail impact
"as noted by the coincident spatter mark and on an
elevation that was consistent with the most recent hailstorm
2013, a public adjuster, Timothy Barthelemy, assessed the
thirty-six Walnut Creek buildings and made conclusions
similar to Waterman's. Generally, his conclusion was that
hail caused damage to the properties. His team of inspectors
observed nine to eleven hits per square in the area assessed.
He also excluded the appliqué from his assessment.
Barthelemy had conducted "probably 400" appraisals.
Barthelemy testified sometimes hail damage takes "a
winter" to show up in a shingle. Barthelemy also
testified he discussed the damage with Danielson. In
Barthelemy's view, fracture or not, damage existed.
According to Barthelemy, the policy covers "physical
damage or physical loss. So I'm looking for something
that the shingle is physically damaged, and that would be
cosmetic damage." Danielson agreed cosmetic damage is
physical damage. The Haag Engineering report concluded
"[d]ents in the gutters, downspouts, fascia and trim,
window cladding, window screens, and flue caps related to
hail fall were a cosmetic condition that would not
functionally alter the material."
denied most of Walnut Creek's claim on February 13, 2013.
Depositors agreed to pay $124, 656.79 based on small dents to
the "soft metal" items, including fascia, gutters,
and downspouts. Depositors stated damage to windows and air
conditioning units was not covered under the policy. In
August 2013, Walnut Creek filed suit for breach of contract
and a declaratory judgment.
parties' insurance policy provides for appraisal. Walnut
Creek requested appraisal. In July 2014, Walnut Creek moved
for summary judgment and asked the district court to approve
language to be used on the appraisal form. In its summary
judgment ruling in October 2014, the court declined to
approve any language, but sought to "clarify what issues
in this case are determinable by appraisers and which issues
are properly saved for litigation." The court concluded
"[t]he parties may fully litigate whether all
of the loss to the property was a result of a covered event
(here, the hail storm)-in other words, whether the
cause of the damage is covered under the
policy." The court also stated "[t]he appraisers
and umpire must consider what damage was caused by hail, what
damage was not, or damage with which they are unconcerned,
such as normal wear and tear." The appraisal took place
May 5, 2015, only a few weeks before trial.
appraiser, Eric Howell, a property adjuster, also testified.
Howell testified he had concerns about the appraisal umpire,
Larry Roth, because Roth's experience was, in
Howell's view, with fire and water losses, not hail
damage. However, Howell agreed to use Roth as the umpire
because, Howell testified, he believed Roth would be bringing
"an independent engineer experienced in assessing hail
damage" with him. No such person was present at the
appraisal. Howell testified he did not sign off on the
appraisal award form because he "disagreed with what was
being presented as a final number." Howell testified he
was reluctant to stop the appraisal because it had been
rescheduled "a couple times" due to weather and
trial was "right around the corner."
Barthelemy, and Danielson were all present at the appraisal.
Roth served as the umpire on the panel. Walnut Creek selected
James Pierce as its appraiser and Howell served as
Depositors' appraiser. Evidence was presented to the
appraisal panel, including the Haag Engineering report. Five
buildings were inspected as part of the appraisal. The
appraisal panel was aware of Walnut Creek's warranty
appraisal award begins with a declaration of competence and
disinterest signed by both appraisers. It next contains this
The Appraisers and Umpire above-referenced hereby agree and
stipulate that the appraisal herein is limited in scope to
the amount of loss and damage as a result of a hail and
windstorm that occurred on or about August 8, 2012. The award
does not include an evaluation or determination of coverage,
policy exclusions or the relative causation of the same.
award section contains four itemized awards. Each is listed
with a description of the property damaged, a replacement
cost, a depreciation percentage, a depreciation amount, and
an actual cash value. The four items listed are "direct
physical loss roofing, " "matching roofing
(additional), " "siding, gutters, fascia, "
and "air conditioners." The appraisal concludes
with this: "We, the undersigned, pursuant to our
appointment, certify that we have truly, conscientiously and
impartially performed the duties assigned us and have
appraised and determined and do hereby award the following
amount of loss. Minimum of two signatures required."
Pierce and Roth signed the appraisal award. The combined
amount of loss is $1, 467, 830, representing the total
replacement cost for the four property items listed.
trial was held May 27 and 28, 2015. The district court
concluded the appraisal was not binding or conclusive and
dismissed Walnut Creek's claims. This appeal followed.
challenges the timeliness of Walnut Creek's appeal. A
party has thirty days to appeal a final judgment.
See Iowa R. App. P. 6.101(1)(b). Judgment herein was
entered August 19, 2015. Walnut Creek filed a post-judgment
motion on September 3. The post-judgment motion requested
enlargement or amendment pursuant to Iowa Rule of Civil
Procedure 1.904(2) and a new trial pursuant to rule 1.1004.
Such motions may toll the appeal period. See id. The
district court denied those motions in an order issued
December 21. Walnut Creek's notice of appeal followed
within thirty days of that order.
asserts Walnut Creek's appeal is untimely because the
1.904(2) motion was improper. Our supreme court has
repeatedly held only "proper" 1.904(2) motions toll
the appeal period. See, e.g., Hedlund v.
State, 875 N.W.2d 720, 725 (Iowa 2016). Depositors
asserts Walnut Creek's 1.904(2) motion was simply an
improper "rehash" of previous arguments. See
Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa
1998). We disagree. In its ruling on the motions, the
district court issued a "clarification" on
burden-shifting that amounts to an amendment or enlargement
of its previous ruling. Cf. McKee v. Isle of Capri
Casinos, Inc., 864 N.W.2d 518, 526 (Iowa 2015)
("The district court in fact modified [one] aspect of
its original ruling when it acted on McKee's
motion."). Therefore, the 1.904(2) motion was a proper
one and the appeal is timely.
Walnut Creek also brought a motion for new trial. We are
aware of no rule requiring a motion for new trial to conform
to the same propriety requirement as a 1.904(2) motion. Where
the case law refers to a "proper" motion for new
trial, the term "proper" unfailingly either (a)
refers to timeliness or (b) appears in dicta with citations
to 1.904(2) cases. See, e.g., Union Tr. &
Sav.Bank v. Stanwood Feed & Grain, Inc.,
158 N.W.2d 1, 3 (Iowa 1968) (equating "improper"
with "untimely"); In re J.L., 868 N.W.2d
462, 465 (Iowa Ct. App. 2015) (citing string of 1.904(2)
cases). If we were to conclude a motion for new trial must be
"proper" to toll the appeal period, we might find
it need only identify some enumerated basis for new trial.
See Iowa R. Civ. P. 1.1004(1)-(9). The district
court here found two ...