IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 25, 2013 Session

ARTIST BUILDING PARTNERS and HOWARD CAUGHRON v. AUTOOWNERS MUTUAL INSURANCE COMPANY

Direct Appeal from the Circuit Court for Davidson County

No. 07C-112 Thomas W. Brothers, Judge

No. M2012-00915-COA-RM-CV - Filed November 21, 2013

This appeal involves a dispute between an insurer and its insured following a fire loss at a

commercial building. The case was resolved by a series of motions for partial summary

judgment. The issues on appeal involve the amount of damages owed by the insurer for the

insured’s lost business income during the period of restoration of the building following the

fire. The insurer relies upon two separate provisions of the insurance policy to argue that its

obligation to pay for lost business income was limited to either six or, at most, twelve

months. The trial court denied the insurer’s motions for partial summary judgment and

granted the motions for partial summary judgment filed by the insured, holding that the

insurer’s obligation to pay was not limited to either a six-month or a twelve-month period.

The insurer appeals. We affirm and remand for further proceedings as may be necessary.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

ALAN E.HIGHERS,P.J.,W.S., delivered the opinion of the Court, in which DAVID R. FARMER,

J., and J. STEVEN STAFFORD, J., joined.

W. Timothy Harvey, Rebecca J. Garman, Clarksville, Tennessee, for the appellant, AutoOwners Mutual Insurance Company

Raymond G. Prince, Nashville, Tennessee, for the appellees, Artist Building Partners and

Howard Caughron
OPINION

I. FACTS & PROCEDURAL HISTORY

Artist Building Partners and Howard Caughron (“Plaintiffs”) owned a commercial

building located at 50 Music Square West in Nashville, Tennessee. The building was

damaged by fire on June 13, 2005. Plaintiffs maintained an insurance policy on the premises

with Auto-Owners Mutual Insurance Company (“Insurer”). In addition to coverage for

damagesto the structure, Plaintiffs’ insurance policy also provided coverage for lost business

income and extra expense incurred during the period of restoration, under certain

circumstances. In other words, the policy provided a form of business interruption

insurance.

1

Insurer did not deny that the damage incurred as a result of the fire was in fact covered

by the policy, and it also conceded that Plaintiffs were entitled to some amount of recovery

for their lost business income. In fact, Insurer made several payments to Plaintiffs for

damages to the building, and for lost business income and extra expense, during the months

after the fire. However, the parties were unable to agree as to the precise sums owed by

Insurer, and Plaintiffs filed this lawsuit on January 11, 2007, to recover additional sums for

damages to the building and for lost business income. Plaintiffs’ complaint alleged that

Insurer had breached the policy of insurance by failing to pay the entire amounts owed for

Plaintiffs’ covered losses. The complaint also alleged that Insurer’s actions constituted a bad

faith refusal to pay, rendering it liable for damages pursuant to Tennessee Code Annotated

section 56-7-105, and constituted unfair or deceptive acts or practices in violation of the

Tennessee Consumer Protection Act (“TCPA”), Tennessee Code Annotated section 47-18-

101, et seq. Plaintiffs sought a judgment for all sums due under the policy, prejudgment

interest, statutory damages for bad faith refusal to pay, and treble damages and attorney’s

fees pursuant to the TCPA.

“The purpose of business interruption insurance is to protect the insured against losses that occur 1

when its operations are unexpectedly interrupted, and to place it in the position it would have occupied if the

interruption had not occurred.” Continental Ins. Co. v. DNE Corp., 834 S.W.2d 930, 934 (Tenn. 1992).

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Shortly after the complaint was filed, an agreed order was entered on March 14, 2007,

which stated that Insurer had invoked the appraisal provision of the insurance policy, and

therefore, the parties agreed that the case would be stayed pending finalization or resolution

of the appraisal proceedings. The policy’s appraisal provision provided, in pertinent part:

a. Appraisal

If we and you disagree on the amount of Net Income and operating expense or

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 Net Income and operating

expense or amount of loss. If they fail to agree, they will submit their

differences to the umpire. A decision agreed to by any two will b[e] binding.

Each party will:

(1) Pay its chosen appraiser; and

(2) 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.

The policy further provided that Insurer would pay for a covered loss within thirty days after

receiving a sworn proof of loss if an appraisal award had been made and the insured had

complied with all of the terms of the coverage part.

Pursuant to the appraisal provision, Insurer submitted three specific questions to the

appraisal panel: (1) the actual cash value of the damages to the building, less reasonable

depreciation; (2) the actual business income loss incurred; and (3) the reasonable time frame

within which the repairs to the building should have been completed. Each of the parties

selected an appraiser, and the two appraisers selected an umpire. The appraiser selected by

Plaintiffs ultimately agreed with the umpire’s decisions, and they submitted a binding

appraisal award on October 16, 2007. The appraisal award stated, in relevant part:

We, the undersigned, have appraised, determined and do hereby establish the

loss and make the following appraisal award, pursuant to and subject to the

terms of the insurance policy:

Value of Building, June 12, 2005:

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$2,250,000.00

Actual Cash Value of the damages to the building less reasonable

depreciation:

$1,627,330.14

Actual business income loss incurred:

$1,060,297.66 (from June, 2005 to April, 2008)

The reasonable time frame within which the repairs to the building

should have been completed:

6 months from date construction begins

Within days of the appraisal award, Plaintiffs sent to Insurer a copy of the appraisal award

and a sworn statement in proof of loss, demanding payment in accordance with the amounts

listed in the appraisal award. One month after the appraisal award was entered, on November

16, 2007, Insurer sent Plaintiffs a check for $322,056.94 in accordance with the appraisal

award for the actual cash value of the damage to the building, as the appraisal award valued

the damage at $1,627,330.14, and Insurer had already made previous payments for the

damage totaling $1,305,273.20. There was no further dispute between the parties as to the

amount owed for the damage to the building after this $322,056.94 payment was made in

November 2007. However, with regard to the amount owed for lost business income, Insurer

paid only a fraction of the amount referenced in the appraisal award. Specifically, the

appraisal award had calculated the “Actual businessincome lossincurred” as “$1,060,297.66

(from June, 2005 to April, 2008).” A small portion of this sum represented extra expense

incurred by Plaintiffs($45,819), for which Insurer had already paid, and therefore the amount

of the award attributable to lost business income was $1,014,478.66. Insurer took the

position that this amount represented the total amount of actual businessincome lossincurred

by Plaintiffs, but that Insurer was only obligated to pay Plaintiffs for lost business income

for a twelve-month period, pursuant to the policy. Therefore, Insurer divided the

$1,014,478.66 sum by a total of 35 months, to reach an average monthly business income

loss of $28,985.10 per month, then it multiplied that figure by twelve months, to determine

that it only owed Plaintiffs for a twelve-month total of $347,821.20 in lost business income.

2

Because Insurer had previously paid Plaintiffs $221,792 for lost businessincome, it paid only

$126,029.20 more after the appraisal award, maintaining that its payment of $347,821.20

By our calculation, $1,014,478.66 divided by 35 equals $28,985.10 per month, although the parties 2

repeatedly referenced a figure of $28,958.10 per month. This appears to have been a simple typographical

error by the parties, as the correct figure was apparently used to reach the 12-month total of $347,821.20.

Due to our resolution of the issues on appeal, it is not necessary for us to address this discrepancy further. 

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satisfied its obligation under the policy and the appraisal award.

The provision of the insurance policy upon which Insurer relied in support of its

twelve-month argument was found in the policy’s Business Income and Extra Expense

endorsement, which provided, in relevant part:

. . . we will pay for the actual loss of Business Income you sustain due to the

necessary suspension of your “operations” during the “period of restoration”

and necessary Extra Expense you incur during the “period of restoration” that

occurs within 12 consecutive months after the date of the direct physical loss

of or damage to property at the described premises, including personal

property in the open (or in a vehicle) within 100 feet, caused by or resulting

from any Covered Cause of Loss. This is an additional amount of insurance.

On April 16, 2008, Plaintiffs filed a motion for partial summary judgment “limited strictly

to Plaintiffs’ claim for lost business income.” First, Plaintiffs argued that the twelve-month

3

limitation found in the aforementioned provision only applied to the policy’s Extra Expense

coverage, not to the BusinessIncome coverage mentioned near the beginning of the sentence.

In other words, Plaintiffs interpreted the provision to mean that Insurer would pay “for the

actual loss of Business Income you sustain due to the necessary suspension of your

‘operations’ during the ‘period of restoration’” and also for “necessary Extra Expense you

incur during the ‘period of restoration’ that occurs within 12 consecutive months after the

date of the direct physical loss of or damage to property[.]” Alternatively, Plaintiffs argued

that the provision was ambiguous as to whether the twelve-month limitation applied to one

or both types of coverage, and therefore, Plaintiffs argued, the provision should be construed

against Insurer and in favor of coverage. Based upon Plaintiffs’ position that there was no

twelve-month limitation on the recovery of lost business income, Plaintiff further argued that

the appraisal award had established the amount of lost business income to which Plaintiff

was entitled at $1,014,478.66 (or $1,060,297.66 if extra expense was included).

Insurer filed a response to Plaintiffs’ motion for summary judgment, in which Insurer

argued that the policy unequivocally limited recovery to twelve months for not only extra

expense but also lost business income. Insurer relied upon the lack of separating punctuation

in the sentence at issue, and the fact that some other provisions of the policy that treated

business income loss and extra expense differently did so by using a separate paragraph to

address each type of coverage. Aside from its response to Plaintiffs’ motion for partial

summary judgment on this issue, Insurer also filed its own motion for partial summary

The motion stated specifically that it was not directed toward Plaintiffs’ claims for damages to the 3

building, damages for bad faith, or those applicable under the TCPA. 

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judgment, essentially restating its argument that the twelve-month limitation unambiguously

applied to both business income and extra expense coverage. Insurer argued that it had

fulfilled its obligations under the policy by paying Plaintiffs for twelve-months of coverage

after the appraisal award was entered, and it claimed that it did not owe any further sums

under the policy.

Following a hearing on both parties’ competing motions for summary judgment, the

trial court entered an order granting in part the motion filed by Plaintiffs. The trial court

found that the provision at issue was “ambiguous as to whether or not the twelve consecutive

month limitation pertains both to Business Income and Extra Expense or only to Extra

Expense.” The court concluded that “the more reasonable interpretation of the above

provision is that the twelve consecutive month limitation pertains only to Extra Expense.”

Nevertheless, finding an ambiguity at the very least, the trial court held that the provision

must be construed against Insurer and in favor of coverage. The trial court accordingly

entered partial summary judgment in favor of Plaintiffs to the extent that the twelve-month

limitation was held to apply only to Extra Expense and not to Business Income Loss

coverage. Regarding Plaintiffs’ additional contention that the appraisal award had

conclusively established the amount of Plaintiffs’ lost business income as $1,060,297.66, the

trial court denied Plaintiffs’ motion for partial summary judgment, finding that “the extent

of the ‘period of restoration’ under paragraph 4 of the Endorsement at issue is not totally

clear and that, therefore, a question of fact exists.” Insurer’s motion for partial summary

judgment was denied in its entirety.

After the trial court ruled that the twelve-month limitation did not apply to lost

business income, Plaintiffs demanded from Insurer the remaining $712,476.46 in lost

business income that Plaintiffs claimed was due under the appraisal award, in addition to

prejudgment interest. Plaintiffs were granted leave to file an amended complaint, which

generally provided updated information about the amounts paid by Insurer and the amounts

that Plaintiffs claimed were still owing under the policy. In its answer to Plaintiffs’ amended

complaint, Insurer argued, for the first time, that Plaintiffs were actually only entitled to six

months of lost business income, due to the findings of the appraisal panel. Thus, Insurer

claimed that by paying Plaintiffs for twelve months of lost business income after the

appraisal award, it had actually overpaid Plaintiffs, and it asserted a counterclaim for a refund

of one-half of the amount it had previously paid. Insurer also filed a motion for partial

summary judgment based upon these issues. Insurer’s arguments were based upon the

policy’s statement that Insurer would pay “for the actual loss of Business Income you sustain

due to the necessary suspension of your ‘operations’ during the ‘period of restoration[.]’”

The policy defined the “period of restoration” as follows:“Period of Restoration” means the

period of time that:

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a. Begins with the date of direct physical loss or damage caused by or

resulting from any Covered Cause of Loss at the described premises;

and

b. Ends on the date when the property at the described premises should be

repaired, rebuilt or replaced with reasonable speed and similar quality.

Insurer pointed out that the appraisal award had established “[t]he reasonable time frame

within which the repairs to the building should have been completed” as “6 months from date

construction begins.” Insurer argued that the period of restoration had therefore been

“established at six (6) months by the Appraisal Award.” Thus, according to Insurer, the

appraisal award conclusively established that Plaintiffs were only entitled to recover six

months of lost business income.

Plaintiffs filed a memorandum in opposition to Insurer’s motion along with their own

motion for partial summary judgment on this issue. Plaintiffs basically argued that the

appraisal award did not establish the period of restoration at only six months. According to

Plaintiffs, Insurer was placing too much emphasis on the appraisal award’s use of the words

“6 months” in one section of the award, while ignoring the rest of the language in the award.

As previously noted in this opinion, the signed appraisal award, dated October 2007, stated,

in relevant part:

Actual business income loss incurred:

$1,060,297.66 (from June, 2005 to April, 2008)

The reasonable time frame within which the repairs to the building should have

been completed:

6 months from date construction begins

The second page the umpire prepared, which the parties referred to as the “worksheet” or the

“explanation page,” listed the umpire’s findings in more detail. It listed the “actual business

income loss incurred” as “1,014,478.66 (from June 05 to April 08 – additional 6 months to

complete).” The extra expense cost of $45,819, already paid by Insurer, was added to that

sum to reach the total of $1,060,297.66. Beneath this calculation, the worksheet listed “6

months” as the “reasonable time frame within which the repairs to the building should have

been completed.”

In support of their motion for summary judgment, Plaintiffs submitted the affidavit

of the appraiser whom they had selected for the appraisal panel, Cason Dickinson. Mr.

Dickinson stated that when he agreed with the umpire’s finding as to the reasonable time

frame for repairs, he and the umpire both agreed that the six-month period would run from

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the date of the appraisal award, in October 2007, and end in April 2008. Mr. Dickinson

stated that all three members of the appraisal panel had discussed the reasonable time frame

within which repairs should have been completed, and their respective proposals were listed

on the explanations page that accompanied the appraisal award. Mr. Dickinson said he

initially proposed an eight-month period for completing repairs that would end in January

2009, while the appraiser selected by Insurer proposed a six-month period that would have

ended in May 2006. Thus, according to Mr. Dickinson, none of the three members of the

appraisal panel proposed that repairs should have been completed within six months of the

June 2005 fire loss, or that Plaintiffs would not be entitled to lost business income after that

time. Plaintiffs also submitted in support of their motion for summary judgment a letter that

was obtained during discovery that was written by Insurer’s appraiser after the appraisal

award. In that letter, Insurer’s appraiser referenced the appraisal award and stated,

“apparently, the Umpire believed the delays in renovation were the fault of the insurance

company and not a calculated decision on the part of the Owner.”

In sum, Plaintiffs argued that the “period of restoration” had been clearly established

by the appraisal award, the policy, the affidavit of Plaintiffs’ appraiser, and the letter from

Insurer’s appraiser which acknowledged the umpire’s reasoning. Plaintiffs contended that

reasonable minds could not differ as to the conclusion that the period of restoration ended

in April 2008,six months after the appraisal award. Accordingly, Plaintiffs claimed that they

were entitled to partial summary judgment on the issue of lost business income and a

judgment for $1,060,297.66, less credits for Insurer’s previous payments. Insurer filed a

response to Plaintiffs’ motion, noting the lack of evidence from the umpire regarding her

position, and pointing out that the only explanation submitted by Plaintiffs had come from

Plaintiffs’ own appraiser.

Prior to the hearing on these motions for partial summary judgment (on the alleged

six-month limitation), Insurer filed an amended and supplemental motion in which it asked

the trial court to reconsider its previous ruling, from two years earlier, as to the meaning of

the twelve-month limitation. In support of its motion to reconsider, Insurer submitted the

affidavit of a Research Assistant Professor of Education at Vanderbilt University, Dr. Alene

Hawes Harris, who had prepared a diagram of the sentence at issue and rendered an opinion

as to its meaning. Again, the sentence at issue stated, “we will pay for the actual loss of

Business Income you sustain due to the necessary suspension of your ‘operations’ during the

‘period of restoration’ and necessary Extra Expense you incur during the ‘period of

restoration’ that occurs within 12 consecutive months after the date of the direct physical loss

of or damage to property at the described premises[.]” Dr. Harris opined, “[b]ased upon [her]

expert opinion,” that “the phrase ‘within 12 consecutive months’ properly structured modifies

the noun ‘Business Income’ as well as ‘Extra Expense.’” Therefore, Dr. Harris concluded

that “the phrase ‘within 12 consecutive months’ limits both the ‘Business Income’ and the

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‘Extra Expense.’”

Following a hearing on these motions, the trial court reaffirmed its previous ruling as

to the twelve-month limitation, despite the affidavit of Dr. Harris, finding again that “the

twelve consecutive month provision above is meant to apply only to extra expense and not

to loss of business income.” The trial court denied Insurer’s motion to amend its previous

finding in that regard. With respect to the alleged six-month limitation, the trial court

reserved ruling on the parties’ cross-motions for partial summary judgment, finding that a

contested issue of fact remained as to the umpire’s findings concerning the period of

restoration in the appraisal award. The trial court directed the parties to depose the umpire

as soon as possible.

The umpire, Amy Smith, subsequently submitted an affidavit in which she attempted

to clarify and explain her findings regarding the period of restoration. She also sought a

protective order that would define and limit the scope of her deposition to specific areas of

inquiry, directed at clarifying the appraisal award to the extent that it was ambiguous, and

excluding inquiry as to her opinions, thoughts, or communications that were not contained

in the appraisal award. Umpire Smith noted that there was no allegation of fraud, manifest

mistake, bias, inadequacy or excessiveness of the award, and therefore, she contended that

the scope of inquiry should be limited to that sufficient to permit the court and the parties to

understand the meaning of the appraisal award.

It is not clear from the record whether the trial court ruled on the appraiser’s motion

for a protective order, but the deposition of Umpire Smith did take place on June 14, 2011.

Thereafter, Insurer served Umpire Smith with a subpoena for “a complete copy of any and

all notes, records, correspondence, and the entire (file) you have regarding the United Artist

Building and your work as the Umpire for [this lawsuit].” Umpire Smith then filed a motion

to quash the subpoena, or in the alternative, for a protective order. She asserted that the

subpoena was unreasonable and oppressive. Umpire Smith noted that the trial court had

ordered that her deposition be taken due to perceived ambiguities in her findings regarding

the period of restoration in the appraisal award. Umpire Smith pointed out that the disputed

issue regarding the period of restoration “was discussed numerous times and in numerous

ways” during her recent deposition. Umpire Smith claimed that she had consistently

explained her position to the parties and/or their attorneys through correspondence, her

affidavit, and again during the deposition. She claimed that her notes, records, and

correspondence in her file were not necessary to further explain the appraisal award’sfinding

as to the period of restoration. Umpire Smith cited the insurance policy’s provision that a

finding of the umpire and appraiser would be “binding,” and she claimed she had already

provided sufficient information for the parties to understand the meaning of the award.

Following a hearing, the trial court granted Umpire Smith’s motion to quash the subpoena,

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finding that its demand for all notes and records “constitutes an oppressive request under the

facts and circumstances presented, is unduly burdensome, and is not reasonably calculated

to lead to the discovery of additional admissible evidence.”

During her deposition, Umpire Smith had agreed that her role as an umpire was

governed by the applicable clauses of the insurance policy. She testified that it was necessary

for her to review at least portions of the insurance policy in order to reach her factual

conclusions as to the values that were submitted to appraisal. She testified that she reviewed

the policy’s provisions regarding the actual business income loss incurred as well as the extra

expense that was associated with business income loss. According to Umpire Smith, she

looked at the policy to see the categories and descriptions of these losses so that she would

understand substantively how to evaluate the factual information before her. As previously

noted, one of the questions submitted to the appraisal process was “the actual business

income loss incurred.” The policy provided that Insurer would pay “for the actual loss of

Business Income you sustain due to the necessary suspension of your ‘operations’ during the

‘period of restoration.’” It defined the “period of restoration” as beginning on the date of

loss and ending “on the date when the property at the described premises should be repaired,

rebuilt or replaced with reasonable speed and similar quality.” Thus, Umpire Smith stated

that determining the “reasonable timeframe within which the repairs to the building should

have been completed” was “part and parcel” of the decision regarding the “actual business

income loss” incurred. Umpire Smith explained that she calculated the actual business

income loss “based on the terms in the policy of what period of restoration meant as I

believed reasonably that I should have answered the question.” Umpire Smith explained that

substantial construction had not begun at the time of the appraisal award, but Plaintiffs had

taken steps to clean up and preserve the structure. She testified that she concluded that the

date when the property should be repaired, rebuilt, or replaced with reasonable speed and

similar quality was April 2008. She testified that it was her opinion that substantial

construction could begin in October 2007, when the appraisal award was made, and that it

could be completed within six months of the date when substantial construction began, which

would be in April 2008. Umpire Smith noted that the appraisal award specifically stated that

actual business income loss was computed as “$1,060.297.66 (from June, 2005 to April,

2008).”

Umpire Smith suggested that the calculation at the bottom of the appraisal award page

that listed six months as the “reasonable time frame within which the repairs to the building

should have been completed” was actually an unnecessary finding because the period of

restoration had already been determined in the context of calculating the actual loss of

business income. She reiterated that the period of restoration was calculated as beginning

with the date of loss in June 2005 and ending in April 2008. Umpire Smith denied any

suggestion that the appraisal award set the period of restoration as six months beginning with

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the date of the fire. She further denied that a comparison of the factual finding in the

appraisal award with the policy’s definition of period of restoration would lead one to

conclude that the period of restoration was six months. Umpire Smith said, “[m]y intent was

that that [six month entry] would be read in connection with the actual business income loss

incurred number. And I tried to set that out on Page 2.” She reiterated that, according to the

appraisal award, repairs could be made within six months of the date of the appraisal award,

because that is when she expected that substantial construction would begin. Accordingly,

she explained, the appraisal award calculated the business income loss from June 2005

through April 2008.

Based upon the deposition testimony of Umpire Smith, Plaintiffs filed a renewed

motion for partialsummary judgment on the issue of lost business income. Plaintiffs claimed

that Umpire Smith’s deposition testimony “entirely corroborate[d]” their previous contention

that both the Umpire and Mr. Dickinson had agreed that the period of restoration began on

the date of loss in June 2005 and ended in April 2008, six months after the appraisal award.

Plaintiffs argued that the appraisal award therefore established Plaintiffs’ actual business

income loss and extra expense at $1,060,297.66, and that they were entitled to a judgment

for that amount, minus previous payments made by Insurer of $393,640.20, for a resulting

judgment of $666,657.46, in addition to prejudgment interest.

Insurer also renewed its own motion for partial summary judgment in light of Umpire

Smith’s deposition testimony. Insurer argued that the appraisal panel was only authorized

to determine the value of the damages incurred, and it argued that the appraisal panel had

impermissibly resolved coverage and liability questions that were beyond the scope of the

appraisal by attempting to determine the period of restoration. Insurer claimed that the

appraisal panel was only authorized to determine the reasonable time frame for completing

repairs, regardless of when and if construction had begun. Insurer asserted that the trial court

was obligated to apply the six-month finding by the appraisal panel to the definition of the

period of restoration, and to find that the period of restoration ended six months after the date

of the fire.

Following a hearing on the renewed motions for summary judgment, the trial court

entered an order granting the Plaintiffs’ motion and denying the motion filed by Insurer. The

trial court based its ruling on the following findings:

1. Under the appraisal clause of the Business Income and Extra Expense

Endorsement a decision as to the amount of loss of business income

agreed to by any two of the three members of the appraisal panel is

binding;

2. In determining the amount of lost business income, the appraisal panel

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necessarily determined the Period of Restoration;

3. Both Plaintiffs’ Appraiser Cason Dickinson and Umpire Amy Smith

agreed that the “Period of Restoration” began on the date of loss, June

13, 2005, and ended six months after the Appraisal Award was signed

on October 16, 2007;

4. Under the appraisal clause of the policy, the agreement by Mr.

Dickinson and Ms. Smith established that the actual business income

loss and extra expense incurred was $1,060,297.[6]6;

5. Plaintiffs are entitled to a judgment for the above sum less $393,640.20

in credits claimed by the Defendant, for a total of $666,657.46[.]

The trial court also found that Plaintiffs were entitled to prejudgment interest on the unpaid

sum of $666,657.46 beginning November 17, 2007, approximately one month after the date

of the appraisal award. The trial court dismissed Insurer’s counterclaim for a refund of six

months of lost business income.

The trial court designated its orders on the various motions for partial summary

judgment as final pursuant to Tennessee Rule of Civil Procedure 54.02 because they

“dispose[d] of the entire breach of contract claim asserted by the Plaintiffs.” Insurer timely

filed a notice of appeal to this Court on January 11, 2012.

On appeal, this Court ruled, in Artist Building Partners v. Auto Owners Mut. Ins.

Co., No. M2012-00157-COA-R3-CV, 2012 WL 6757940 (Tenn. Ct. App. W.S. Dec. 28,

2012), that the trial court’s orders granting partial summary judgment were improvidently

certified as final because Plaintiffs’ claims for bad faith refusal to pay and violation of the

TCPA arose out of the same operative facts and remained pending before the trial court.

Therefore, we dismissed Insurer’s appeal. The Tennessee Supreme Court granted Insurer’s

application for permission to appeal and remanded to the Court of Appeals for

reconsideration. The Supreme Court was “not convinced” that the orders appealed failed to

dispose of an entire “claim” before the trial court, but the Court found that it was not

necessary to resolve that question because the parties agreed that all issues had since been

resolved in the trial court. Thus, the Supreme Court concluded that there was good cause to

suspend the finality requirement of the appellate rules and to remand the case to this Court

for reconsideration.

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II. ISSUES PRESENTED

Insurer presents the following issues for review on appeal:

1. Did the trial court err in holding that the insurance policy's twelvemonth limitation in the Business Income and Extra Expense

endorsement only applied to Extra Expense coverage and not to

Business Income Loss coverage;

2. Did the trial court err by failing to limit the Business Income and Extra

Expense coverage to a six-month period of restoration due to the

appraisal award, and instead finding that Plaintiffs were entitled to

thirty-five months of benefits, awarding Plaintiffs a judgment in the

amount of $1,060,297.66, less $393,640.20 in creditsfor twelve months

of benefits already paid by Insurer; and

3. Did the trial court err in granting Umpire Smith's motion to quash, or

in the alternative, for protective order, thereby denying Insurer the

opportunity to discover and review Umpire Smith's entire file materials

involving this matter as subpoenaed?

For the following reasons, we affirm the decision of the circuit court and remand for further

proceedings as may be necessary.

III. STANDARD OF REVIEW

A motion forsummary judgmentshould be granted only “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “The party seeking the summary

judgment has the burden of demonstrating that no genuine disputes of material fact exist and

that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513

(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.

Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). The

resolution of a motion for summary judgment is a matter of law, which we review de novo

with no presumption of correctness. Martin, 271 S.W.3d at 83.

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IV. DISCUSSION

A. The Alleged Twelve-Month Limitation

Insurer’s first argument on appeal is that the trial court erred in concluding that the

insurance policy did not limit the recovery of lost business income to twelve months. “In

general, courts should construe insurance policies in the same manner as any other contract.”

Lancaster v. Ferrell Paving, Inc., 397 S.W.3d 606, 610 (Tenn. Ct. App. 2011) (citing

American Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 814 (Tenn. 2000)). An

insurance policy must be interpreted fairly and reasonably, giving the language its usual and

ordinary meaning, Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 768 (Tenn. 2006),

and taking the policy language in its plain, ordinary, and popular sense. Hutchison, 15

S.W.3d at 814. We review a trial court's interpretation of contract language de novo with no

presumption of correctness. Lancaster, 397 S.W.3d at 610 (citing Travelers Indem. Co. of

America v. Moore & Assocs., Inc., 216 S.W.3d 302, 305 (Tenn. 2007)).

The provision at issue, found in the policy’s Business Income and Extra Expense

4

endorsement, bears repeating here:

. . . we will pay for the actual loss of Business Income you sustain due to the

necessary suspension of your “operations” during the “period of restoration”

and necessary Extra Expense you incur during the “period of restoration” that

occurs within 12 consecutive months after the date of the direct physical loss

of or damage to property at the described premises, including personal

property in the open (or in a vehicle) within 100 feet, caused by or resulting

from any Covered Cause of Loss.

Simply put, Insurer claims that the phrase “within 12 consecutive months” relates back to

both business income and extra expense. Insurer points to the lack of separating punctuation

between the twelve-month limitation and the words that preceded it. Insurer claims that if

the twelve-month limitation was only meant to apply to extra expense, some effort would

 We note that our research has not revealed any cases interpreting a policy provision identical to 4

the one at issue. Although there are a few Tennessee cases involving business interruption insurance, the

language of the policies in those cases differed from the policy language here, and the cases generally

involved different issues. See, e.g., Continental Ins. Co. v. DNE Corp., 834 S.W.2d 930, 934 (Tenn. 1992)

(“We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your

‘operations’ during the ‘period of restoration’.); Gates v. State Auto. Mut. Ins. Co., 196 S.W.3d 761, 764

(Tenn. Ct. App. 2005) (“We will only pay for loss of Business Income that you sustain during the ‘period

of restoration’ and that occurs within 12 consecutive months after the date of direct physical loss or

damage.”)

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have been made to clearly differentiate between business income and extra expense, such as

the use of separating punctuation or even separate paragraphs. Insurer also points to the

affidavit of Dr. Harris, the professor whom Insurer describes as an “expert in sentence

diagraming.” Dr. Harris provided a diagram of the sentence and opined, “[b]ased upon [her]

expert opinion,” that “the phrase ‘within 12 consecutive months’ properly structured modifies

the noun ‘Business Income’ as well as ‘Extra Expense,’” and therefore the twelve-month

limitation “limits both the ‘Business Income’ and the ‘Extra Expense.’”

To the contrary, Plaintiffs interpret the endorsement as limiting the Insurer’s

obligation to pay for extra expenses incurred “during the ‘period of restoration’ that occurs

within 12 consecutive months after the date of the direct physical loss,” while obligating the

Insurer to pay for lost business income sustained “during the ‘period of restoration,’” without

further limitation. Plaintiffs point out that the provision uses the verb “occurs,” which, they

claim, indicates an intent to refer to a singular noun. Plaintiffs argue that it would be

grammatically incorrect to state that the Insurer will pay for “Business Income . . . and Extra

Expense . . . that occurs within 12 consecutive months[.]”

The trial court concluded that the aforementioned provision was “ambiguous as to

whether or not the twelve consecutive month limitation pertains both to Business Income and

Extra Expense or only to Extra Expense,” although the court noted that, in the court’s

opinion, “the more reasonable interpretation of the above provision is that the twelve

consecutive month limitation pertains only to Extra Expense.” Based upon its finding of an

ambiguity, the trial court construed the provision against Insurer and in favor of coverage,

and it entered partial summary judgment in favor of Plaintiffs on the basis that the

twelve-month limitation applied only to Extra Expense and not to Business Income Loss

coverage. We agree with the trial court’s conclusion.

Language in an insurance policy is ambiguous if it is susceptible of more than one

reasonable interpretation. Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn. 1993). “Ambiguity

in a contract is doubt or uncertainty arising from the possibility of the same language being

fairly understood in more ways than one.” Mid-Century Ins. Co. v. Williams, 174 S.W.3d

230, 240 (Tenn. Ct. App. 2005) (citing NSA DBA Benefit Plan, Inc. v. Connecticut Gen. Life

Ins. Co., 968 S.W.2d 791, 795 (Tenn. Ct. App. 1997)). “When a provision that purports to

limit insurance is ambiguous, it must be construed against the insurance company and in

favor of the insured.” Gates v. State Auto. Mut. Ins. Co., 196 S.W.3d 761, 764 (Tenn. Ct.

App. 2005) (citing Osborne v. Mountain Life Ins. Co., 130 S.W.3d 769, 773 (Tenn. 2004)).

In other words, “if the disputed provision is susceptible to more than one plausible meaning,

the meaning favorable to the insured controls.” Garrison v. Bickford, 377 S.W.3d 659, 664

(Tenn. 2012) (citing Tata, 848 S.W.2d at 650; VanBebber v. Roach, 252 S.W.3d 279, 284

(Tenn. Ct. App. 2007)).

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In our view, the Business Income and Extra Expense endorsement is susceptible to

more than one reasonable interpretation. It is reasonable to interpret the provision as

obligating the Insurer to pay for “the actual loss of Business Income you sustain due to the

necessary suspension of your ‘operations’ during the ‘period of restoration’” and for

“necessary Extra Expense you incur during the ‘period of restoration’ that occurs within 12

consecutive months after the date of the direct physical loss of or damage to property at the

described premises.” We acknowledge the contrary opinion of the learned professor, Dr.

Harris. However, an insured should not have to resort to retaining an “expert in sentence

diagraming” in order to properly interpret his or her insurance policy. An insurance policy

must be interpreted fairly and reasonably, giving the language its usual and ordinary

meaning. Naifeh, 204 S.W.3d at 768. “[T]he ‘ordinary meaning’ envisioned is the meaning

which the average policy holder and insurer would attach” to the policy language. Swindler

v. St. Paul Fire & Marine Ins. Co., 223 Tenn. 304, 307, 444 S.W.2d 147, 148 (Tenn. 1969);

see also Harrell v. Minnesota Mut. Life Ins. Co., 937 S.W.2d 809, 814 (Tenn. 1996) (noting

that “an insured should not have to consult a long line of case law or law review articles and

treatises to determine the coverage he or she is purchasing under an insurance policy,” and

considering what “the average insured would understand”).

The interpretation urged by Plaintiffs is certainly reasonable and sensible. Therefore,

assuming for the sake of argument that the Insurer’s interpretation is also reasonable, the

provision at issue is ambiguous. As a result, the interpretation favorable to the insured is

controlling. Garrison, 377 S.W.3d at 664. We therefore affirm the trial court’s decision to

grant partial summary judgment to Plaintiffs and to deny Insurer’s motion for partial

summary judgment on the issue of whether the twelve-month limitation applies to lost

business income. Plaintiffs’ recovery of lost business income was not limited to twelve

months.

B. The Alleged Six-Month Limitation

Next, Insurer argues that the trial court erred by failing to limit Plaintiffs’ recovery of

lost business income to a six-month period, which Insurer argues was required by the

appraisal award. The trial court awarded Plaintiffs a judgment in the amount of

$1,060,297.66 (less credits already paid for twelve months of benefits), effectively awarding

Plaintiffs thirty-five months of lost business income from June 2005 to April 2008. Insurer

argues that Plaintiffs are only entitled to recover $173,910.60, representing six months of lost

business income.

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The relevant findings by the appraisal panel were as follows:

Actual business income loss incurred:

$1,060,297.66 (from June, 2005 to April, 2008)

The reasonable time frame within which the repairs to the building should have

been completed:

6 months from date construction begins

The attached worksheet or explanation page broke down the $1,060,297.66 figure into

$45,819 in extra expense, plus $1,014,478.66 in lost business income, with the notation,

“from June 05 to April 08 – additional 6 months to complete.”

The trial court granted Plaintiffs’ motion for partial summary judgment with regard

to this issue, finding that: (1) the policy provided that a decision by the appraisal panel as to

the amount of lost business income would be binding; (2) the appraisal panel necessarily

determined the Period of Restoration in determining the amount of lost business income; (3)

the appraisal panel found that the “Period of Restoration” began on the date of loss, June 13,

2005, and ended six months after the Appraisal Award was signed on October 16, 2007; and

(4) the appraisal award established the actual business income loss and extra expense

incurred was $1,060,297.66.

Insurer’s arguments on appeal regarding this issue are contradictory. First, Insurer

argues, basically, that the appraisal award could not and did not establish the applicable

“period of restoration” as defined by the policy. According to Insurer, “the Appraisal

Award’s simple statement of the actual business income loss does not negate the terms of the

Policy which limit the coverage of business income loss to only that incurred during the

‘period of restoration.’” Insurer claims that the appraisal panel was only authorized to value

the damages incurred by Plaintiffs, or, in other words, to calculate the total damages incurred

by Plaintiffs through the date of the appraisal award. Insurer points out that Umpire Smith

testified during her deposition that she read and interpreted the insurance policy and

determined the “period of restoration” in the context of determining the “actual business

income loss” incurred by Plaintiffs. Insurer claims that determining the “period of

restoration” constituted an issue of coverage and liability, and therefore, the appraisal panel’s

determination of this issue “went beyond the scope of the Appraisal and beyond Umpire

Smith’s authority.” Insurer cites Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 152

(Tenn. Ct. App. 2001), where the Court stated:

An appraiser's authority is limited to the authority granted in the insurance

policy or granted by some other express agreement of the parties. The

appraisal clause in Ms. Batts's homeowners policy islimited to determining the

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“amount of the loss”—the monetary value of the property damage. It does not

vest the appraisers with the authority to decide questions of coverage and

liability, and there is no evidence that Merrimack and Ms. Batts agreed

independently to give this authority to Messrs. Keys, Horton, and Ward.

Without evidence of some agreement by the parties, there is no legal or factual

basis for concluding that the appraisers were empowered to decide coverage

questions.

Based upon the Court’s statement in Merrimack, Insurer argues that the appraisal panel in

this case had no authority to determine the period of restoration, as it was a coverage issue

that was not subject to the appraisal process. According to Insurer, “Umpire Smith’s

statements, opinions, and interpretations of the policy provisions are irrelevant and should

not be considered by this Court as they go beyond the scope of her authority as an umpire.

It is not for the Umpire to decide what constitutes the ‘Period of Restoration.’”

The second half of Insurer’s argument regarding this issue directly contradicts the

first. After arguing that the appraisal panel exceeded its authority in determining the period

of restoration, and that we should ignore its finding as to the applicable period of restoration,

Insurer goes on to argue that the trial court erred “by failing to properly limit the Business

Income and Extra Expense Endorsement loss coverage to the six month period of restoration

established by the appraisal.” (Emphasis added). Insurer relies upon the section of the

appraisal award establishing the “reasonable time frame within which the repairs to the

building should have been completed” as “6 months from date construction begins.” Insurer

argues that the period of restoration “ended six months after the date of loss as the Appraisal

Award confirms the property could have been repaired within six months.” Insurer claims

that “the ‘period of restoration’ . . . has been established at six (6) months by the Appraisal

Award.”

We reject both of these arguments by Insurer. First of all, we find that the appraisal

panel did not exceed its authority in determining the applicable period of restoration. As

noted in Merrimack, the appraisal panel’s authority was “limited to the authority granted in

the insurance policy or granted by some other express agreement of the parties.” Here, the

insurance policy provided that if the Insurer and the insured disagreed as to “the amount of

loss,” then either party could demand an appraisal of the loss, and a decision by the panel as

to the amount of loss would be binding. The insurance policy provided that Insurer would

pay for “the actual loss of Business Income you sustain due to the necessary suspension of

your ‘operations’ during the ‘period of restoration,’” with the “period of restoration”

beginning on the date of loss and ending “on the date when the property at the described

premises should be repaired, rebuilt or replaced with reasonable speed and similar quality.”

After Insurer and Plaintiffs were unable to agree as to the amount of lost business income

-18-
owed by Insurer, Insurer demanded an appraisal, and Insurer specifically submitted the

following issues to the appraisal panel: “the actual business income loss incurred” and “the

reasonable time frame within which the repairsto the building should have been completed.”

Substantial construction had not begun at the time of the appraisal award. The appraisal

panel concluded that repairs could be completed “6 months from date construction begins.”

It therefore calculated Plaintiffs’ lost business income from the date of the loss until six

months after the October 2007 appraisal award, thereby establishing that the period of

restoration would end in April 2008. These determinations by the appraisal panel did not

exceed the scope of its authority. Pursuant to the insurance policy, the panel was authorized

to make a binding determination as to “the amount of loss,” and the parties expressly agreed

to submit to the appraisal panel the issue of the “the actual business income loss incurred.”

Moreover, the parties expressly agreed that the appraisal panel would decide, not only the

value of the loss, but “the reasonable time frame within which the repairs to the building

should have been completed.” These determinations necessarily included a determination

of the applicable period of restoration.

Essentially, Insurer is arguing that the appraisal panel was not authorized to determine

the period of restoration in calculating the “actual business income loss incurred,” while at

the same time arguing that the panel’s determination as to the “reasonable time frame” for

repairs should be interpreted as a conclusive determination of the period of restoration.

However, Insurer places too much emphasis upon the six-month period and ignores the fact

that the appraisal panel determined that the repairs should have been completed by six

months from the date of the appraisal award, or April 2008. Insurer cannot cherry-pick from

isolated portions of the appraisal award in order to suggest that the appraisal panel made a

finding that contradicts other portions of the award. This is especially true when Umpire

Smith and Appraiser Dickinson clearly testified that the appraisal award established the

period of restoration as ending in April 2008, not six months from the date of the June 2005

fire loss. Simply put, the appraisal award’s finding that the reasonable time frame for repairs

was six months from the date construction begins did not equate to a finding that the period

of restoration was six months from the date of the fire. The appraisal panel found that,

considering the circumstances existing at the time of the appraisal award in October 2007,

a reasonable time frame for the completion of repairs was six months, assuming that

substantial construction could begin immediately. The appraisal panel apparently made the

determination that it would take six months to complete repairs considering the

circumstances that had occurred up to that point, such as cleaning of the fire damage and

stabilization of the building. The appraisal panel clearly did not find that substantial

construction could have begun on the date of the fire, or that the building could have been

completely repaired within six months of the fire. It is undisputed that after the fire, Insurer

placed restrictions on Plaintiffs’ ability to alter the state of the building for a period of time

due to the possibility of a subrogation claim regarding the cause of the fire. It is also obvious

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from these proceedings that Insurer did not pay the entire amount it owed for the property

damage loss until after the appraisal award, some two years after the fire. The appraisal

panel clearly took into account the circumstances as they existed at the time of their decision

when finding that the period of restoration should end in April 2008. On appeal, Insurer

points to various facts about the timeline of events after the fire in support of its position as

to when the repairs should have reasonably been completed. These facts are irrelevant at this

stage of the proceedings, however, as the parties expressly agreed that the appraisal panel

would decide “the reasonable time frame within which the repairs to the building should have

been completed.” The appraisal panel found that repairs should have been completed by

April 2008, and that decision was binding.

In sum, the appraisal panel made a binding determination that the reasonable time

frame within which the repairs to the building should have been completed was by April

2008, and that the actual loss of business income incurred by Plaintiffs during that period was

$1,060,297.66. There is no genuine issue of material fact as to the appraisal panel’s findings

or the binding nature of its decision. Accordingly, we find that the trial court properly

granted partial summary judgment to Plaintiffs on the issue of whether the recovery of lost

business income was limited to a six-month period pursuant to the appraisal award.

Furthermore, the trial court properly denied Insurer’s motion for summary judgment and

appropriately dismissed Insurer’s counterclaim relative to this issue. Plaintiffs’ recovery of

5

lost business income was not limited to six months.

In their appellee’s brief, Plaintiffs pointed out that Insurer had not raised any issue on appeal 5

regarding the propriety of the trial court’s award of prejudgment interest, and therefore, Plaintiffs considered

the issue waived. In its reply brief, Insurer argued, for the first time, that the trial court erred in granting

prejudgment interest. Insurer argued that its challenge to the trial court’s grant of summary judgment

“automatically includes an argument that the pre-judgment interest awarded to Plaintiffs was improper[.]”

However, Insurer’s initial appellate brief was 51 pages in length, and it only mentioned the term prejudgment

interest once, in its statement of facts, where it noted that interest was awarded. We agree with Plaintiffs and

hold that Insurer waived any argument regarding the propriety of awarding prejudgment interest by failing

to raise it as an issue in its initial brief. “A reply brief is a response to the arguments of the appellee. It is not

a vehicle for raising new issues.” Owens v. Owens, 241 S.W.3d 478, 499 (Tenn. Ct. App. 2007) (citing

Tenn. R. App. P. 27(c); Denver Area Meat Cutters & Employers Pension Plan v. Clayton, 209 S.W.3d 584,

594 (Tenn. Ct. App. 2006)). “A reply brief is limited in scope to a rebuttal of the argument advanced in the

appellee's brief.” Clayton, 209 S.W.3d at 594. It would be fundamentally unfair to permit an appellant to

advance new arguments in the reply brief, as the appellee may not respond to a reply brief. Id. This concern

is especially true here, where Plaintiffs justifiably concluded that Insurer was not advancing a particular

argument on appeal and simply noted the reason why it had not presented an argument regarding that issue.

-20-
C. The Motion to Quash

Finally, Insurer argues that the trial court erred in granting Umpire Smith’s motion to

quash the subpoena, thereby precluding Insurer from obtaining Umpire Smith’s entire file

related to this case. “The decision of the trial court in discovery matters will not be reversed

on appeal unless a clear abuse of discretion is demonstrated.” Benton v. Snyder, 825 S.W.2d

409, 416 (Tenn. 1992) (citing Paine v. Ramsey, 591 S.W.2d 434, 436 (Tenn. 1979)). “An

abuse of discretion occurs when the trial court (1) applies an incorrect legal standard, (2)

reaches an illogical or unreasonable decision, or (3) bases its decision on a clearly erroneous

assessment of the evidence.” State v. Mangrum, 403 S.W.3d 152, 166 (Tenn. 2013) (citing

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). “In determining whether the

trial court abused its discretion, an appellate court ‘should presume that the [trial court's]

decision is correct and should review the evidence in the light most favorable to the

decision.’” Mayfield v. Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012) (quoting Gonsewski

v. Gonsewski, 350 S.W.3d 99, 105-106 (Tenn. 2011)). Under this standard, we will uphold

the trial court's determination, irrespective of our inclination to decide the issue differently,

so long as the trial court's decision is within the range of acceptable alternatives. Tait v. Tait,

207 S.W.3d 270, 275 (Tenn. Ct. App. 2006).

Tennessee Rule of Civil Procedure 45.07 allows a trial court to quash a subpoena if

it is unreasonable and oppressive. Pippin v. Pippin, 277 S.W.3d 398, 403 (Tenn. Ct. App.

6

2008). Here, the trial court granted Umpire Smith’s motion to quash on the basis that “the

additional discovery sought by [Insurer], in the form of all notes and records of the Umpire

as demanded in the Subpoena . . . constitutes an oppressive request under the facts and

circumstances presented, is unduly burdensome, and is not reasonably calculated to lead to

the discovery of additional admissible evidence.” Considering the fact that Umpire Smith

had already provided deposition testimony and an affidavit to clarify the alleged ambiguity

in the appraisal award, we cannot say that the trial court abused its discretion in finding that

it would be unreasonable and oppressive to require Umpire Smith to produce her entire file,

including all notes, records, and correspondence regarding the case. According to the

appraisal provision of the insurance policy, the parties agreed that a decision by any two

members of the appraisal panel would be “binding.” The trial court permitted limited

discovery regarding the alleged ambiguity in the award, and we find no error in its

Rule 45.07 was amended effective July 1, 2013. According to the 2013 advisory commission 6

comment, the amendment “eliminates the necessity for a non-party [witness] to file a motion to quash or

modify a deposition subpoena for testimony or subpoena for production of documentary evidence,” and it

“adopts the procedure under Fed. R. Civ. P. 45(c)(2)(B), permitting the subpoenaed non-party to serve a

written objection on the party or attorney designated in the deposition subpoena. . . . The burden is shifted

to the party issuing the subpoena to file a motion to compel.” The trial court granted the motion to quash

in this case in 2011, so the 2013 amendment is not applicable for purposes of our analysis.

-21-
discretionary decision to prevent further discovery of the appraisal umpire’s entire file

containing her notes, records, and correspondence.

V. CONCLUSION

For the aforementioned reasons, we affirm the judgment of the circuit court and

remand for further proceedings as may be necessary. Costs of this appeal are taxed to the

appellant, Auto-Owners Mutual Insurance Company, and itssurety, for which execution may

issue if necessary.

ALAN E. HIGHERS, P.J., W.S.

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