UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMIE MCNEAL,

Plaintiff-Appellant,

v.

No. 97-2004

AETNA CASUALTY AND SURETY

COMPANY OF ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Daniel E. Klein, Jr., Chief Magistrate Judge.

(CA-95-3787-WMN)

Submitted: September 29, 1998

Decided: October 26, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas F. DeCaro, Jr., Upper Marlboro, Maryland, for Appellant.

George E. Reede, Jr., V. Timothy Bambrick, NILES, BARTON &

WILMER, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jimmie McNeal appeals the magistrate judge's denial of his motion

to reopen this case.1 Because we find that McNeal has failed to establish good cause for reopening this action, we affirm the magistrate

judge's determination.

On January 30, 1994, a fire damaged a Sizzler restaurant owned

and operated by McNeal. McNeal submitted a claim under his insurance policy to Aetna Casualty & Surety Company of Illinois

("Aetna"). Aetna adjusted this claim directly with the owner of the

real property, Edgewater Partnership ("Edgewater"),2 ultimately paying Edgewater $214,861.26. Dissatisfied with the manner in which his

claim was adjusted, McNeal initiated this suit against Aetna in the

Circuit Court for Baltimore City, Maryland, alleging breach of contract and tortious failure to pay an insurance claim. Shortly thereafter,

Aetna removed the action to federal court, moved for partial summary

judgment, and demanded an appraisal pursuant to the terms of the

appraisal clause in the insurance policy.

In its motion for partial summary judgment, Aetna set forth three

arguments. First, Aetna contended that its adjustment with Edgewater,

rather than McNeal, was appropriate under the insurance policy. Second, Aetna argued that McNeal was not entitled to recovery under the

policy for loss of income because McNeal's lease expired the day of

the fire. Finally, Aetna argued that Maryland does not recognize a

claim for tortious failure to pay an insurance claim. The district court

determined that Aetna's adjustment of the building loss with Edge-

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1 The parties consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C.A. § 636(c) (West 1993 & Supp. 1998).

2 Edgewater leased the property to Tenly Enterprises, Inc., who in turn

subleased the property to McNeal.

 2
water was indeed appropriate, but that McNeal would have the opportunity during the appraisal process to prove that he was entitled to

additional payment. Moreover, the district court found that, despite

the expiration of McNeal's lease, a genuine issue of material fact

existed as to whether McNeal had a reasonable expectation of remaining in business after the fire. Finally, the district court agreed with

Aetna that Maryland does not recognize, as a cause of action, tortious

failure to pay an insurance claim.

Following the district court's rulings, the parties attended an

appraisal hearing. The parties' respective appraisers, as well as the

umpire, unanimously awarded McNeal $76,921. This award constituted payment for the following: $5000 for the building; $69,040 for

business and personal property; $81 for business income; $300 for

exterior signs; and $2500 for valuable papers.

Because Aetna agreed to honor the appraisal, the magistrate judge,

pursuant to District of Maryland Local Rule 111.1, issued a conditional order dismissing the case. However, McNeal, apparently dissatisfied with the amount of the award, filed a timely motion to reopen

the case, arguing that the appraisers had "exceeded their powers." The

magistrate judge denied McNeal's motion, stating that he was "simply

trying to have the Court review the issues that were decided by the

panel [of appraisers] because [McNeal] does not agree with the result."3

McNeal appeals, claiming that the magistrate judge erred in denying

his motion to reopen the case.

Local Rule 111.1 provides, in pertinent part:

When the Court has been notified by counsel that a case has

been settled, the Court may enter an award dismissing the

case and providing for the payment of costs. Such an order

of dismissal shall be without prejudice to the right of a party

to move for good cause to reopen the case within a time set

by the Court if the settlement is not consummated.

Because McNeal filed a timely motion to reopen the case, the only

question is whether he has established the requisite"good cause."

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3 J.A. at 310.

 3
Under Maryland law, in the absence of fraud or mistake, an

appraisal award under the usual appraisal clause in a fire insurance

policy is binding and conclusive on the parties. 4 "The reason for this

doctrine is that an award by [appraisers] is the decision of a tribunal

which the parties themselves have created, and by whose judgment

they have mutually agreed to abide."5 

In the instant case, McNeal claims that the appraisers "exceeded

their power" because they issued an award that did not conform to the

district court's rulings on Aetna's motion for partial summary judgment. First, McNeal contends that the appraisers incorrectly determined that he did not own certain improvements on the premises,

"notwithstanding the language in the Memorandum of the District

Court in response to the motions for summary judgment, to the effect

that certain components of the building were owned by [McNeal] . . .

."6 Second, McNeal argues that the appraisers "exceeded their powers" in determining whether McNeal had the ability to remain in business after the fire. McNeal claims that the district court had

determined that he could recover for lost income if he could prove

that he would have remained in business after the expiration of his

lease. He asserts that he is entitled to a determination on this point in

the district court. We disagree.

While the district court did address these issues in its Memorandum

and Order on Aetna's motion for partial summary judgment, the order

simply noted that McNeal would have the opportunity to present evidence of loss for building damage and loss of income through the

appraisal process. McNeal presented such evidence and, indeed,

received awards for each category. Thus, McNeal has not alleged

errors which warrant overturning the appraisal award. Accordingly,

we hold that McNeal has failed to produce good cause for reopening

the case and we affirm the magistrate judge's order.

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4 Brethren Mut. Ins. Co. v. Filsinger, 458 A.2d 880, 883-84 (Md. Ct.

Spec. App. 1983) (citing Schreiber v. Pacific Coast Fire Ins. Co., 75

A.2d 108, 111 (Md. 1950)).

5 Schreiber, 75 A.2d at 112 (emphasis in original).

6 Appellant's Br. at 11.

 4
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

 5