United States Court of Appeals

For the First Circuit

No. 23-1531

B.R.S. REAL ESTATE, INC.,

Plaintiff, Appellant,

v.

CERTAIN UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO POLICY 

NUMBER QMF1760087; QUAKER SPECIAL RISK; LAMARCHE ASSOCIATES, 

INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Kayatta, Lipez, and Gelpí,

Circuit Judges.

Nicole M. Labonte, with whom Law Offices of Richard Palumbo, 

LLC was on brief, for appellant.

William A. Schneider, with whom Richard R. Hennessey and 

Morrison Mahoney LLP were on brief, for appellees.

August 12, 2024
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KAYATTA, Circuit Judge. This appeal arises out of a 

dispute over the amount of an insurance award owed to B.R.S. Real 

Estate, Inc. for water damage to its commercial warehouse. B.R.S. 

challenges the appraisal decision issued by a panel of two partyappointed appraisers and a neutral umpire. B.R.S. also contends 

that the district court erred in granting summary judgment on its 

claim that defendants breached the terms of the insurance contract 

by refusing to pay B.R.S. $141,787.33 in withheld depreciation. 

For the following reasons, we affirm the district court's judgment 

and decline to vacate the appraisal award. 

I.

On review of the district court's decision on summary 

judgment, we accept the facts in the light most favorable to B.R.S.

as the nonmoving party and draw all reasonable inferences on its 

behalf. See Ciarametaro v. City of Gloucester, 87 F.4th 83, 85 

(1st Cir. 2023). 

B.R.S. owns a commercial property located at 820-

824 Main Street, West Warwick, Rhode Island (the "Property"). From 

1974 to 1994, the Property housed a grocery store. It then sat 

vacant until 2017, when B.R.S. entered into a commercial lease 

with DC 88 Express, Inc., to convert the building into a grocery 

warehouse. 

B.R.S. insured the Property under a policy (the 

"Policy") issued by Certain Underwriters at Lloyd's, London and 
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managed by Quaker Special Risk (collectively, the "Insurers"). In

2018, the pipes at the Property froze and burst, causing extensive 

damage to the building. B.R.S. filed a claim for insurance 

coverage under the Policy, invoking its "Loss Payment" provision, 

pursuant to which: 

In the event of loss or damage covered by this 

Coverage Form, at [the Insurers'] option, [the 

Insurers] will either:

(1) Pay the value of lost or damaged property; 

[or]

(2) Pay the cost of repairing or replacing the 

lost or damaged property . . . .

The Policy's "Valuation Condition" specified that the Insurers 

would "determine the value of Covered Property in the event of 

loss or damage . . . [a]t actual cash value as of the time of loss 

or damage." 

B.R.S. retained Douglas Soscia of RI Adjusting Services

as its public insurance adjuster for the claim. The Insurers 

retained Rebecca Girouard from LaMarche Associates as their loss 

adjustment investigator.

With the Insurers' consent, B.R.S. hired a contractor to 

perform initial remediation work on the Property. After initial 

remediation was completed, the Insurers sent engineers from The 

Vertex Companies, Inc. ("Vertex") to inspect the Property and draw 

up an estimate for the total value of the loss claim. On behalf 
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of the Insurers, Girouard issued a preliminary replacement cost 

estimate of $165,846.49 plus remediation expenses of $23,196.28. 

Soscia responded on behalf of B.R.S. with an estimate totaling 

$464,505.03. The Insurers then issued a $141,027.11 payment to 

B.R.S., which reflected the undisputed portion of the claim.

With the parties unable to reach an agreement as to the 

remaining amount, B.R.S. demanded an appraisal under the terms of 

the Policy, which provided that:

If [the Insurers] and [B.R.S.] disagree on the 

value of the property 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 value of the 

property and 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. 

The Insurers requested time before the appraisal to 

evaluate the electrical portion of B.R.S.'s claim. B.R.S. agreed 

and Soscia followed up with an additional estimate for repairs, 

bringing B.R.S.'s total claim to $1,168,624.12. Girouard advised 

Soscia that she would also have to review this supplemental 

estimate, and hired James Boudreau, a building consultant working 

for Vertex, to assess the additional claims. 
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B.R.S. then sent a second demand for an appraisal, to 

which the Insurers acquiesced. The Insurers chose Boudreau as 

their appraiser, and B.R.S. chose John Zarlenga of Adrien & Son. 

Neither party voiced any objections to these selections at that 

time. Zarlenga and Boudreau then selected William Monahan of 

Monahan & Associates, P.C. to serve as the umpire. 

Following an inspection by the appraisers and a series 

of back-and-forths between Soscia and Girouard, the umpire,

Monahan, and the Insurers' appraiser, Boudreau, signed on to an 

appraisal award on August 15, 2019 as follows: 

• $445,010.48 for replacement cost loss;

• Minus $92,746.51 for withheld 

depreciation;

• For a total actual cash value loss of 

$352,263.97;

• Plus additional coverage of $10,000 for 

increased cost of construction. 

Zarlenga did not sign the award. The Insurers then issued a 

supplemental payment to B.R.S. for $208,736.86.

Soscia subsequently notified defendants that the initial 

appraisal award failed to account for the replacement cost value 

of certain materials and appliances. Monahan then issued an 

amended award as follows:

• $516,067.89 for replacement cost loss; 

• Minus $141,787.33 for withheld 

depreciation; 

• For a total actual cash value loss of 

$374,280.56; 
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• Plus additional coverage of $10,000 for 

increased cost of construction. 

Boudreau signed the amended award; Zarlenga again did not. On 

March 16, 2020, the Insurers issued a final payment for $34,516.59 

to B.R.S. This brought the total amount paid by the Insurers to 

B.R.S. to $384,280.56, the value of the appraisal award less 

depreciation, plus $10,000 in additional construction costs.

At some point in early 2020, B.R.S. sent an 

"Invoice/Letter of Completion" to the Insurers advising that 

Soscia Construction, Ltd. had "completed the first phase (rough) 

and the second phase required for [] repair" of the Property. It 

gave a "total estimate for the repairs" of $975,000, $650,000 of 

which was "due through phase 2." B.R.S. argued that this invoice 

triggered the Insurers' obligation to pay the $141,787.33 in 

withheld depreciation under the amended appraisal award. The 

Policy did indeed call for the payment of the full replacement 

cost without any deduction for depreciation, but only subject to 

the following conditions:

[The Insurers] will not pay on a replacement 

cost basis for any loss or damage:

(1) Until the lost or damaged property is 

actually repaired or replaced; and

(2) Unless the repairs or replacement are made 

as soon as reasonably possible after the loss 

or damage.
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So the Insurers did not owe B.R.S. the withheld depreciation unless 

and until B.R.S. actually repaired or replaced the Property. 

B.R.S. argues that it satisfied this condition precedent 

when it sent the Insurers the invoice from Soscia Construction

showing that it had completed the first two phases of repair on 

the Property. When Girouard met with Soscia to confirm that the 

Property had indeed been repaired, however, she found that the 

main level of the Property had been converted to a laundromat. 

The Insurers thereby declined to pay the withheld depreciation, 

arguing that the Policy only obligated them to pay on a 

"Replacement Cost" basis if B.R.S. actually replaced the Property 

with other property of similar use. 

B.R.S. filed suit against defendants in Rhode Island 

state court. The complaint alleged that the appraisal award was 

invalid because Boudreau was not an "impartial" appraiser as 

required by the Policy, and stated four causes of action: 

(1) petition for a complete, proper, and impartial appraisal; 

(2) breach of contract for failing to appoint an impartial 

appraiser and for subtracting the value of depreciation from the 

final award amount; (3) declaratory judgment that B.R.S.'s "full" 

claim is covered; and (4) unfair claims settlement practices and 

bad faith for use of a biased appraisal process and reliance upon 

an invalid appraisal award. 
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Defendants removed the case to federal court and moved 

to confirm the appraisal award. The court denied the motion 

without prejudice, explaining: "This matter is not ripe for 

adjudication. Discovery has not yet taken place. This mat[t]er 

cannot be decided in the infancy stage of this litigation. The 

Plaintiff's complaint, which the Court considers true for purposes 

of this motion, states a valid and plausible claim upon which 

relief could be granted." The court also denied defendants' 

subsequent motion for reconsideration. 

In due course, defendants filed a motion for summary 

judgment and to confirm the appraisal award. The court granted 

summary judgment for defendants. B.R.S. Real Est., Inc. v. Certain 

Underwriters at Lloyd's, London, 682 F. Supp. 3d 204 (D.R.I. 2023). 

It concluded that, on the record before it, no reasonable jury 

could conclude that Boudreau was an impermissibly biased appraiser

or that Monahan was an incompetent umpire. Id. at 208-12. This 

appeal follows.

II.

B.R.S. first contends that the law-of-the-case doctrine 

precluded the district court from granting defendants' renewed 

motion to confirm the appraisal award. "The law-of-the-case 

doctrine generally provides that 'when a court decides upon a rule 

of law, that decision should continue to govern the same issues in 

subsequent stages in the same case.'" Musacchio v. United States, 
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577 U.S. 237, 244-45 (2016) (quoting Pepper v. United States, 562 

U.S. 476, 506 (2011)). And so, B.R.S. argues, having denied 

defendants' previous motions to confirm the arbitration award, the 

district court could not then grant the renewed motion on summary 

judgment. 

But the district court based its previous denials on the 

fact that "[d]iscovery ha[d] not yet taken place" and therefore 

the issue was "not ripe for adjudication." It noted that the 

complaint, "which the Court consider[ed] true for purposes of" the 

motions, "state[d] a valid and plausible claim upon which relief 

could be granted." In contrast, discovery had concluded when the 

Insurers later filed their renewed motion to confirm the appraisal 

award in conjunction with their motion for summary judgment. And 

the district court correctly applied the summary judgment standard 

in its decision, asking whether there remained any "genuine dispute 

as to any material fact" and whether defendants were "entitled to 

judgment as a matter of law." B.R.S. Real Est., Inc., 682 F. Supp. 

3d at 206 (quoting Fed. R. Civ. P. 56(a)). In short, the district 

court's first ruling merely held that the complaint's allegations 

made it plausible that the yet-to-be-evidenced facts might support 

a ruling for B.R.S., while the subsequent ruling held that the 

evidence that was actually supplied turned out not to provide that 

support.
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III.

B.R.S. next argues that the district court erred in 

declining to vacate the appraisal award based on Boudreau's 

preexisting business relationship with the Insurers, which B.R.S. 

claims rendered him an impermissibly partial appraiser. 

In challenging the appraisal award, B.R.S. faces an 

uphill battle. Rhode Island state law grants "arbitration 

awards . . . a strong presumption of validity given the 'strong 

public policy in favor of the finality of arbitration awards.'" 

Pierce v. R.I. Hosp., 875 A.2d 424, 426 (R.I. 2005) (quoting 

Prudential Prop. & Cas. Ins. Co. v. Flynn, 687 A.2d 440, 441 (R.I. 

1996)). Under Rhode Island law, a court "must make an order 

vacating [an arbitration] award . . . [w]here there was evident 

partiality or corruption on the part of the arbitrators, or either 

of them." R.I. Gen. Laws § 10-3-12(2).1 "[E]vident partiality" 

exists where "a reasonable person would have to conclude that an 

arbitrator was partial to one party to the arbitration." V.S. 

Haseotes & Sons, L.P. ex rel. Bentas v. Haseotes, 819 A.2d 1281, 

1285 (R.I. 2003) (quoting Aetna Cas. & Sur. Co. v. Grabbert, 590 

A.2d 88, 96 (R.I. 1991)). It "requires a showing of more than an 

1 The Rhode Island Supreme Court has clarified that an 

appraisal process involving two party-appointed appraisers and a 

disinterested umpire is in substance an arbitration proceeding, 

and therefore subject to the same standards of review. See

Waradzin v. Aetna Cas. & Sur. Co., 570 A.2d 649, 650 (R.I. 1990).
- 11 -

appearance of bias but less than actual bias." Id. (quoting 

Grabbert, 590 A.2d at 96). The party challenging the award "bears 

'[t]he burden of proving facts that would establish a reasonable 

impression of partiality.'" Id. (quoting Taylor v. Delta Electro 

Power, Inc., 741 A.2d 265, 267 (R.I. 1999) (per curiam)). 

B.R.S. points out that the Insurers had previously 

retained Boudreau to appraise the Property and assess B.R.S.'s 

supplemental claims. It argues that Boudreau's familiarity with 

the Property, as well as his earlier work with the Insurers, biased

him during the appraisal process. But B.R.S. knew well before the 

appraisal began that the Insurers had previously retained Boudreau 

to reinspect the Property. And Rhode Island's highest court has 

expressly refused to "adopt a procedure in which a losing party 

may make a post-decision challenge to an arbitrator's neutrality 

based upon information that, with the exercise of diligence, ought 

to have been discovered before the proceedings commenced." 

Haseotes, 819 A.2d at 1286. So, too, here, B.R.S. cannot debut 

its challenge to Boudreau post-decision.

B.R.S. next takes aim at the credentials of the umpire, 

Monahan. It argues that because Monahan is a lawyer without 

specific construction knowledge or an understanding of what is 

required to repair a commercial building like the Property, he was 

not a "competent" umpire under the terms of the Policy. Nor, 

B.R.S. adds, would a competent umpire have "permitted" Girouard 
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and Soscia to be so heavily involved in the appraisal process, 

treating the process as a "free for all" settlement between the 

parties. 

The simple rejoinder is that, once again, B.R.S. seeks 

a redo based on information that it had before the appraisal was 

undertaken. Indeed, B.R.S.'s appointee helped pick the umpire. 

That B.R.S. now claims to have second thoughts provides no basis 

for challenging the award.

The longer rejoinder is that in the context of insurance 

awards, "it is not essential to competency that an arbitrator be 

an expert qualified to determine the submitted matters from 

personal knowledge and examination without the aid of the other 

evidence." 15 Couch on Insurance § 211.27 (3d ed. 2024). Instead, 

"an attorney, otherwise qualified, may act as an appraiser . . . 

even though he or she is not a contractor or architect." Id. By 

all standards, then, Monahan was fully capable of serving as an 

umpire for the parties' insurance dispute. Neither does B.R.S. 

cite to any authority beyond their say-so that allowing Soscia and 

Girouard to be involved in the appraisal process was improper or 

otherwise led to an award that "substantially prejudiced" the 

rights of any party. See R.I. Gen. Laws § 10-3-12(3). In sum, 

B.R.S.'s challenge to the umpire on his conduct is too little and 

too late.
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IV.

B.R.S. separately argues that the district court erred 

in granting defendants' motion for summary judgment on its claim 

for breach of contract and breach of the implied duty of good faith 

and fair dealing.2 We review de novo a district court's grant of 

a motion for summary judgment. Nantucket Residents Against 

Turbines v. U.S. Bureau of Ocean Energy Mgmt., 100 F.4th 1, 12 

(1st Cir. 2024). We affirm if we agree that "there is no genuine 

dispute as to any material fact" and defendants are therefore 

"entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 

Because under Rhode Island Law "the implied covenant of good faith 

and fair dealing does not create an independent cause of action

but must be connected to a breach-of-contract claim," we dispose 

of both claims simultaneously. Premier Home Restoration, LLC v. 

Fed. Nat'l Mortg. Assoc., 245 A.3d 745, 750 (R.I. 2021) (cleaned 

up) (quoting Ferreira v. Child & Fam. Servs., 222 A.3d 69, 76 (R.I. 

2019)). 

B.R.S. contends that the Insurers violated the terms of 

the Policy when they refused to pay the $141,787.33 in withheld 

depreciation listed in the amended award. Recall that the Policy

2 The Policy's appraisal clause establishes only the 

procedure by which the Insurers and B.R.S. will resolve 

disagreements about the value of the lost property, and does not 

apply to disputes over the Insurers' obligation to pay under the 

terms of the Policy.
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required the Insurers to pay the replacement cost of the Property 

including any costs for depreciation once B.R.S "actually repaired 

or replaced" the Property. B.R.S. argues that the receipt from 

Soscia Construction showing that the first two phases of 

construction had been completed on the Property satisfied this 

"actually repaired" requirement, thus triggering the Insurers' 

obligation to pay the withheld appreciation as assessed in the 

amended appraisal award. 

The Policy, though, further provided that the Insurers: 

[W]ill not pay more for loss or damage on a 

replacement cost basis than the least of[:]

(1) The Limit of Insurance applicable to the 

lost or damaged property;

(2) The cost to replace 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 actually spent that is 

necessary to repair or replace the lost or 

damaged property.

By the time Soscia sent the Insurers the invoice for repair work 

on the Property, the Insurers had already paid B.R.S. $384,280.56 

on its insurance claim. At summary judgment, B.R.S. presented no 

evidence showing that "the least of" the three replacement-cost 

bases rang in at more than this sum. Most fatal to B.R.S. is the 

third such basis -- the amount "actually spent" to repair or 
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replace the Property. At summary judgment, B.R.S. offered as 

evidence three checks made out to Soscia Construction for repair 

work on the Property: two for $5,218.42, and one for $187,863.18. 

That comes to a total of $198,300.02, far less than the $384,280.56 

already paid by the Insurers. As for the $975,000 invoice from 

Soscia Construction, the repair work turned the Property into a 

laundromat rather than a grocery space.3 That precludes B.R.S. 

from claiming those expenditures as the cost to replace the 

Property with other property "[u]sed for the same purpose."4 

V.

We therefore affirm the judgment of the district court. 

3 The invoice, moreover, does not show that B.R.S. actually 

paid Soscia Construction anything close to $975,000 -- only that 

Soscia Construction charged B.R.S. that amount. 

4 B.R.S. offers no evidence that it would have cost more than 

the Insurers paid to have replaced the property with a grocery 

warehouse.