Raymond C. Romeo v. Allstate Property and Casualty Insurance Company.

May 3, 2023
Supreme Court

No. 2022-50-Appeal.
(PC 17-4379)

Raymond C. Romeo :

v. :

Allstate Property and Casualty :
Insurance Company.

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2022-50-Appeal.
(PC 17-4379)

Raymond C. Romeo :

v. :

Allstate Property and Casualty :
Insurance Company.

Present: Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.

OPINION

Justice Goldberg, for the Court. This case came before the Supreme Court

on February 2, 2023, pursuant to an order directing the parties to appear and show

cause why the issues raised in this appeal should not be summarily decided. The

plaintiff, Raymond C. Romeo, appeals from a Superior Court judgment entered in

favor of the defendant, Allstate Property and Casualty Insurance Company

(Allstate).1 For the reasons set forth herein, we vacate the judgment of the Superior

Court.

1
The notice of appeal erroneously provides that the plaintiff is appealing from a
judgment granted in his favor rather than in favor of the defendant.
-1-
Facts and Travel

Although the travel of this case is somewhat muddled and less than smooth,

the underlying facts are straightforward—the parties having submitted a Statement

of Agreed Facts in the Superior Court—which is our starting point. On February 5,

2010, the residence plaintiff owned, located at 10 Shirley Drive in Cranston, Rhode

Island, suffered “a water loss followed by ice and flood.” At the time, the residence

was insured under a Homeowners Policy (the policy) issued by Allstate. The

plaintiff made a claim for the loss under the policy and Allstate made a partial

payment toward the damages. Although the parties agree that the loss was covered

by the terms of the policy, they have been unable to agree as to the extent of the loss

and the cost of remediation.

The policy mandated that, should the parties disagree as to the amount of the

loss, either party could seek appraisal. The pertinent policy provision provides:

“7. Appraisal

“If you and we fail to agree on the amount of loss, either
party may make written demand for an appraisal. Upon
such demand, each party must select a competent and
impartial appraiser and notify the other of the appraiser’s
identity within 20 days after the demand is received. The
appraisers will select a competent and impartial umpire. If
the appraisers are unable to agree upon an umpire within
15 days, you or we can ask a judge of a court of record in
the state where the residence premises is located to select
an umpire.

-2-
“The appraisers shall then determine the amount of loss,
stating separately the actual cash value and the amount of
loss to each item. If the appraisers submit a written report
of an agreement to you and to us the amount agreed upon
shall be the amount of loss. If they cannot agree, they will
submit their differences to the umpire. A written award
agreed upon by any two will determine the amount of loss.

“Each party will pay the appraiser it chooses, and equally
bear expenses for the umpire and all other appraisal
expenses.” (Emphasis omitted.)

According to the parties, plaintiff initially sought to invoke this appraisal provision

within the two-year window (the initial demand for appraisal). Allstate refused to

proceed to appraisal because, it contended, the disagreement involved mixed issues

of both valuation and coverage such that appraisal was not appropriate. As a result,

plaintiff filed suit against Allstate for breach of contract in PC 11-229 (the first

action).2

While the first action was pending, this Court issued its decision in Hahn v.

Allstate Insurance Company, 15 A.3d 1026 (R.I. 2011), which defeated Allstate’s

defense by holding that “unless the insurer denies coverage for the claimed loss and

if the dispute is limited to the amount or extent of the loss, the parties are required

to submit to the appraisal process.” Hahn, 15 A.3d at 1030. In an about-face, based

2
Although the Statement of Agreed Facts provides that “[i]n 2011, plaintiff declined
to pursue the appraisal process and instead filed suit against Allstate for breach of
contract,” in their briefs before this Court, both parties agree that plaintiff initially
demanded appraisal immediately after the loss and Allstate refused to proceed to
appraisal. Only thereafter did plaintiff file suit.
-3-
on Hahn, Allstate took the position that appraisal was a mandatory precondition to

plaintiff’s suit. Allstate filed a motion for summary judgment, arguing that the terms

of the policy required that the dispute be resolved via appraisal and not litigation.

Allstate relied on the following provision of the policy for this contention:

“12. Action Against Us

“No one may bring an action against us in any way related
to the existence or amount of coverage, or the amount of
loss for which coverage is sought, under coverage to
which Section I Conditions applies, unless:
a) there has been full compliance with all policy
terms; and
b) the action is commenced within:
1) two years after the inception of loss or
damage due to fire or other peril covered by
the Rhode Island Standard Fire Policy; or
2) one year after the inception of loss or
damage due to perils other than fire or perils
not covered by the Rhode Island Standard
Fire Policy.”3 (Emphasis omitted.)

On February 27, 2012, Allstate filed an amended answer and a counterclaim,

alleging that it had made a demand for appraisal in accordance with the policy.

According to the counterclaim, plaintiff initially agreed that the claim should

proceed to appraisal before filing suit. Allstate’s counterclaim sought an order from

3
Both parties agree that the provision in Section 12(b)(1) of the policy is applicable
to the present case, requiring that any action against Allstate be filed within two
years of the loss.
-4-
the trial justice declaring that the parties were required to submit the matter to

appraisal.

Allstate’s motion for summary judgment was heard on December 11, 2012.

During the hearing, Allstate urged the trial justice to grant its motion for summary

judgment, arguing that the matter was “required to be submitted to appraisal per the

insurance contract * * *.” The plaintiff agreed that appraisal would be proper as

long as the disagreement as to the amount of the loss could be resolved during the

appraisal process. In short, both parties agreed that the loss was covered, but

disagreed as to the amount of the loss. When asked by the trial justice whether the

amount of the loss was “something that would be analyzed during the appraisal

process,” both parties agreed that it fell within the scope of the appraisal process.

Thus, at the conclusion of the hearing, all parties were in agreement that appraisal

was the proper forum for resolution of the dispute. Based upon this agreement, the

trial justice granted the motion for summary judgment “without prejudice” and

assured plaintiff that “if the appraisal process doesn’t allow you to address [the]

issues, then you can press your case at a later date. I think you’ll have enough time

to do that.” At the time the trial justice granted Allstate’s motion for summary

judgment, two years had already passed from the date of the loss. The plaintiff had

previously demanded appraisal, been rebuffed by Allstate, and filed suit.

-5-
In accordance with his bench decision, the trial justice entered an order on

January 11, 2013 granting Allstate’s motion for summary judgment “without

prejudice.” Final judgment entered thereafter, although that judgment is

inexplicably absent from the record on appeal.4 The plaintiff filed neither a motion

for reconsideration nor an appeal from the judgment.

More than four years later, on March 7, 2017, plaintiff designated an appraiser

and requested that Allstate do the same.5 Allstate responded to plaintiff’s demand

by way of a letter dated May 30, 2017, and refused to appoint an appraiser and move

forward with the appraisal process based upon its assertion that plaintiff’s demand

for appraisal “was not timely filed, in accordance with the requirements of the policy

and, therefore, Allstate will not agree to proceed with appraisal for this loss.”

4
Although we cannot locate a copy of the final judgment in the record on appeal,
despite our thorough review, a docket entry in the first action provides that plaintiff
shall take nothing from defendant and that the action is dismissed on the merits.
Furthermore, during an April 16, 2021 hearing, the trial justice stated that “it does
appear that a judgment was submitted by counsel for Allstate; and the judgment
states that, ‘It’s ordered that the defendant -- that plaintiff’s action against Allstate
Insurance Company be dismissed on the merits.’”
5
Although the policy provides that, after a demand for appraisal is made, “each party
must select a competent and impartial appraiser and notify the other of the
appraiser’s identity within 20 days after the demand is received,” Allstate does not
raise this issue on appeal. Furthermore, there is no evidence in the record as to
whether Allstate selected an appraiser within 20 days after plaintiff’s initial demand
for appraisal was made or after the trial justice granted its motion for summary
judgment in the first action. During a hearing before the trial justice, counsel for
plaintiff confirmed that there was nothing in the record as to any communications
between the parties from 2012 to 2017.
-6-
According to Allstate, this second demand for appraisal was subject to the same

two-year limitation period contained within the policy, which had long since passed,

and plaintiff failed to make a demand within that time period.

The plaintiff sent a response letter to Allstate on June 12, 2017, disagreeing

with Allstate’s new tactic and arguing that the two-year limitation period in the

policy concerned “lawsuits, not demands for appraisal.” The plaintiff noted that the

first action against Allstate was timely filed within the two-year limitation period

and that action was dismissed “without prejudice” with the understanding that the

dispute would proceed to appraisal.

In a brief reply letter, Allstate explained that, after the December 11, 2012

hearing on its motion for summary judgment, plaintiff never “made a demand for

appraisal for more than four years * * *.” Thus, “[u]nder the circumstances,”

Allstate “maintain[ed] its denial of the claim for appraisal * * *.”

The plaintiff commenced the instant action on September 15, 2017. The

complaint sets forth five counts. In count one, plaintiff asks the court to vacate the

judgment entered in the first action. In count two, plaintiff alleges that Allstate

breached the insurance contract by refusing to designate an appraiser and proceed to

appraisal. The plaintiff seeks relief in the form of a judgment ordering Allstate to

designate an appraiser and to complete the appraisal process. The plaintiff also asks

the court, in count three, to declare that Allstate is obligated to resolve the dispute

-7-
via appraisal and order Allstate to comply with that obligation. Count four sounds

in breach of contract for Allstate’s refusal to pay for the loss and for failing to

proceed to appraisal. Lastly, count five alleges insurer bad faith. The bad-faith claim

was severed and stayed by the court on December 18, 2017.6

Thereafter, both parties moved for summary judgment and, on January 9,

2019, a hearing was held on those motions before a different justice of the Superior

Court. The trial justice declined to rule on the motions as to count one, which sought

to vacate the judgment in the first action, explaining that it would be more

appropriate for the trial justice who entered judgment in the first action to address

the motions as to that count.

As to counts two, three, and four, Allstate argued that both the instant case

and the demand for appraisal made in 2017 were not timely filed, as the policy

requires that any action, including a demand for appraisal, be brought within two

years of the date of the loss. Allstate noted that summary judgment was granted in

the first action on December 11, 2012, and asserted that “[p]laintiff never demanded

appraisal until March 7th of 2017.”

The plaintiff responded, arguing that the trial justice in the first action granted

summary judgment without prejudice based upon the understanding that “the sole

6
The order granting the motion to sever and stay the bad-faith count was filed under
the first action and therefore mistakenly docketed in PC 11-229.
-8-
forum in which a disagreement about the nature and extent of the loss would be

resolved is in the appraisal process. So that’s where the [c]ourt said this shouldn’t

be resolved by litigation, it should be resolved by appraisal * * *.” The plaintiff

explained that “[u]nfortunately, it took a long time to get an appraiser who would

undertake [the case].” The plaintiff argued that summary judgment in the first action

was granted in December 2012, at which point the two-year limitation period set

forth by the policy had already lapsed. Therefore, plaintiff asserted, the

understanding that appraisal would go forward after that judgment contradicted

Allstate’s contention that appraisal was time-barred.

The trial justice granted Allstate’s motion for summary judgment as to counts

two, three, and four and denied plaintiff’s motion as to the same. An order reflecting

this decision entered thereafter.

The parties again filed cross-motions for summary judgment as to count one

of the complaint. A hearing was held on April 16, 2021, before the trial justice who

granted the motion for summary judgment without prejudice in the first action. The

trial justice denied plaintiff’s request to vacate the judgment in the first action,

explaining that plaintiff had not filed a motion for reconsideration or a motion to

correct. He also determined that the judgment was not void, nor was there evidence

of inadvertence, surprise, excusable neglect, or fraud. As a result, the trial justice

granted Allstate’s motion for summary judgment as to count one and denied

-9-
plaintiff’s motion as to the same. An order denying plaintiff’s motion and granting

Allstate’s motion was entered.

Allstate filed a motion to dismiss as to the severed, and stayed, insurer

bad-faith count and for entry of judgment in its favor pursuant to Rule 58(a)(1) of

the Superior Court Rules of Civil Procedure. A hearing was held on July 20, 2021,

and the trial justice issued an order granting Allstate’s motion.7 Final judgment

entered for Allstate. This appeal followed.

Standard of Review

“[T]his Court reviews a grant of summary judgment de novo.” Willner v.

South County Hospital, 222 A.3d 1251, 1255 (R.I. 2020) (quoting Ballard v. SVF

Foundation, 181 A.3d 27, 34 (R.I. 2018)). We “apply the same standards as those

used by the trial court.” Hazard v. East Hills, Inc., 45 A.3d 1262, 1268 (R.I. 2012)

(quoting Tavares ex rel. Guiterrez v. Barbour, 790 A.2d 1110, 1112 (R.I. 2002)).

“We will affirm such a decision only if after reviewing the admissible evidence in

the light most favorable to the nonmoving party, we conclude that no genuine issue

of material fact exists and that the moving party is entitled to judgment as a matter

of law.” Broccoli v. Manning, 208 A.3d 1146, 1149 (R.I. 2019) (quoting Prout v.

City of Providence, 996 A.2d 1139, 1141 (R.I. 2010)).

7
Although Allstate moved to dismiss count five, the order grants Allstate’s motion
“for the entry of an Order dismissing Count IV * * *.” We deem this a scrivener’s
error.
- 10 -
Analysis

We are confronted with a case in which both parties were in agreement, in

2012, that this insurance coverage dispute should be resolved by way of the appraisal

process. Unfortunately, an appraisal never occurred. After summary judgment

“without prejudice” was granted in the initial action, plaintiff alleges he experienced

difficulty in finding an appraiser who would undertake the appraisal due to the

uniqueness of his house.8 More than four years passed before plaintiff was able to

appoint an appraiser, at which point Allstate asserted that plaintiff was barred from

pursuing his claim because a demand for appraisal was not timely filed.

Allstate claims that the court did not err in granting its motions for summary

judgment in the case before us because plaintiff failed to appoint an appraiser for

more than four years after summary judgment was entered in Allstate’s favor, and,

therefore, it is no longer obligated to proceed to appraisal. Specifically, Allstate

argues that plaintiff’s 2017 demand for appraisal was not timely made pursuant to

the two-year time limitation within the policy, without explicitly setting forth when

this two-year limitation commenced or addressing the inescapable fact that the

8
Counsel for plaintiff explained, before the trial justice, that “[u]nfortunately, this is
a house in which essentially nothing was from Home Depot. There were custom
made bricks from Yorkshire in England. There were custom made tiles from Italy.
There was gumwood similar to what’s in Courtroom 3 that is now illegal to import
because it’s an endangered species of the tropics, so this turned into a complicated
process. * * * Unfortunately, it took a long time to get an appraiser who would
undertake this.”
- 11 -
two-year limitation had already lapsed at the time the 2012 summary judgment

entered after Allstate insisted the case proceed to appraisal.

The plaintiff, on the other hand, claims that the court erred in granting

Allstate’s motions for summary judgment in the case at hand. Specifically, plaintiff

contends that the court erred in concluding that the present case was time-barred.

The plaintiff asserts that he demanded appraisal well within the two-year limitation

set forth in the policy as he “demanded appraisal almost immediately after the

loss”—before initiating the first action in 2011 and well within the two-year time

limitation. Therefore, Allstate’s refusal to proceed to appraisal after he named an

appraiser in 2017 was improper. As a result, plaintiff argues, “[j]ustice requires that

[the] judgment [in the first action] be vacated * * * and the matter proceed to

appraisal.”9 We agree.

“[T]his Court interprets the terms of an insurance policy according to the same

rules of construction governing contracts.” Atmed Treatment Center, Inc. v.

Travelers Indemnity Company, 285 A.3d 352, 360 (R.I. 2022) (quoting Town of

Cumberland v. Rhode Island Interlocal Risk Management Trust, Inc., 860 A.2d

1210, 1215 (R.I. 2004)). “The rights and liabilities of the parties to an insurance

9
The plaintiff also argues that the court erred in failing to apply the doctrine of
judicial estoppel or Rule 60(b)(5) and (b)(6) of the Superior Court Rules of Civil
Procedure. We find it unnecessary to address these arguments because we conclude
that plaintiff’s initial demand for appraisal was not time-barred and controls the
outcome of this case.
- 12 -
contract are to be ascertained in accordance with the terms as set forth therein.”

DiIorio v. Abington Mutual Fire Insurance Company, 121 R.I. 689, 694, 402 A.2d

745, 747 (1979). “Finally, this Court has held that a ‘limitations period in an

insurance policy is a term to which the parties are specifically bound.’” National

Refrigeration, Inc. v. Travelers Indemnity Company of America, 947 A.2d 906, 910

(R.I. 2008) (quoting DiIorio, 121 R.I. at 694, 402 A.2d at 747).

Allstate relies on Chase v. Nationwide Mutual Fire Insurance Company, 160

A.3d 970 (R.I. 2017), National Refrigeration, 947 A.2d 906 (R.I. 2008), and

Machado v. Narragansett Bay Insurance Company, 252 A.3d 1206 (R.I. 2021), to

argue that plaintiff’s demand for appraisal, made in 2017, was not timely.

In Chase, the insured did not demand appraisal until four years after the date

of the loss. Chase, 160 A.3d at 972. The insurer refused to proceed to appraisal

based on its contention that the demand was not timely made. Id. The insured filed

suit and argued that the two-year limitation period did not begin to run until after the

insurer denied its demand for appraisal. Id. at 974. This Court opined that: “As

appealing as this reasoning may be on the surface, it is unavailing because the

insurance contract clearly states that ‘[a]ny action must be started within two years

after the date of loss or damage[,]’ and not from the date that the claim is rejected. *

* * In this case, the casualty loss occurred in June 2010, but the suit was not filed

until four years later, in November 2014.” Id. (emphasis omitted).

- 13 -
Allstate also cites National Refrigeration and Machado for the proposition

that contractual limitation periods apply not only to lawsuits, but also to demands

for appraisal. In National Refrigeration, this Court held that a petition for arbitration

of an appraisal dispute was a legal action subject to the two-year limitation period in

the insurance contract. National Refrigeration, 947 A.2d at 910. In Machado, the

insurance policy provided the insured with 180 days from the date of the loss to file

a claim. Machado, 252 A.3d at 1207. The insured, however, “waited over 600 days

before attempting to invoke the appraisal clause of their insurance policy.” Id. at

1210. This Court concluded that the insured’s “conduct in waiting almost two years

before seeking to invoke the appraisal clause of their homeowners insurance policy”

relieved the insurer of its responsibilities under the insurance policy. Id.

Accordingly, Allstate’s reliance on Chase, National Refrigeration, and

Machado is misplaced. Indeed, unlike the cases Allstate cites, plaintiff in fact made

a timely demand for appraisal, prior to 2017. Both parties have acknowledged in

their representations before this Court that after the loss, which occurred on February

5, 2010, plaintiff demanded appraisal; Allstate refused to proceed to appraisal,

arguing that portions of plaintiff’s alleged loss were not covered by the policy. Only

then did plaintiff instigate suit, sometime in 2011. Because the two-year limitation

period would have ended on February 5, 2012, plaintiff’s original demand for

appraisal and the initial action brought in 2011 were timely, as they fell within the

- 14 -
requisite limitation period. Thus, neither was time-barred. The clock does not begin

to run again.

Furthermore, in the first action, in both its motion for summary judgment and

during a hearing on the same, Allstate urged the trial justice to grant its motion for

summary judgment based on its contention that plaintiff’s claim was required to be

resolved by way of appraisal and not litigation. The plaintiff agreed, during the

hearing on the motion, that appraisal was appropriate. At the conclusion of the

hearing, there was a clear understanding that the appraisal process would be, or

already was, ongoing. As further evidence of this collective understanding, the trial

justice informed plaintiff that “if the appraisal process doesn’t allow you to address

[the] issues, then you can press your case at a later date. I think you’ll have enough

time to do that.” Notably, the trial justice granted Allstate’s motion for summary

judgment “without prejudice”10—for which we are hard-pressed to discern its

meaning and note that there is no precedent in this jurisdiction for such a designation.

Even more significantly, Allstate had filed a counterclaim in the initial action

seeking an order from the trial justice declaring that the parties were required to

submit the matter to appraisal. Thus, Allstate’s assertion, in both its motion for

summary judgment and its counterclaim, that appraisal was required, amounts to a

10
We pause to note that Allstate drafted the order granting its motion for summary
judgment “without prejudice.”
- 15 -
binding judicial admission. See Nye v. Brousseau, 102 A.3d 627, 629 (R.I. 2014)

(“In this case, defendants admitted that all right, title, and ownership in the judgment

parcel belongs to plaintiff, and this judicial admission is binding.”); see also State v.

Rice, 986 A.2d 247, 249 (R.I. 2010) (“‘A judicial admission is a deliberate, clear,

unequivocal statement of a party about a concrete fact within that party’s

knowledge[,]’ which is ‘considered conclusive and binding as to the party making

[it].’”) (quoting 29A Am. Jur. 2d Evidence § 783 at 48, 49 (2008)).

Because we conclude that the plaintiff’s initial demand for appraisal was not

time-barred and because Allstate’s motion for summary judgment in the first action

was granted “without prejudice” and with the clear understanding that the claim

would undergo appraisal, we conclude that the court erred in granting Allstate’s

motion for summary judgment in the present case.

Conclusion

For the reasons set forth in this opinion, we vacate the judgment of the

Superior Court and remand the case to the Superior Court with direction to vacate

the judgment in the first action (PC 11-229) and order the parties to proceed to

appraisal.

Justice Long did not participate.

- 16 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Raymond C. Romeo v. Allstate Property and Casualty
Title of Case
Insurance Company.
No. 2022-50-Appeal.
Case Number
(PC 17-4379)

Date Opinion Filed May 3, 2023

Justices Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Associate Justice Melissa A. Long
Judicial Officer from Lower Court
Associate Justice Luis M. Matos
For Plaintiff:

Peter J. Comerford, Esq.
Attorney(s) on Appeal
For Defendant:

Peter A. Clarkin, Esq.

SU-CMS-02A (revised November 2022)