No. 21-1834

RAILROAD AVENUE PROPERTIES, LLC,

Plaintiff, Appellant,

v.

ACADIA INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Thompson, and Gelpí, Circuit Judges.

James E. Grumbach, with whom Boston Law Collaborative, LLC was on brief, for appellant. Robert J. Maselek, Jr., with whom McDonough Cohen & Maselek LLP was on brief, for appellee.

June 14, 2022 LYNCH, Circuit Judge. Railroad Avenue Properties, LLC ("Railroad") sued Acadia Insurance Company ("Insurance Company")1 for breach of contract to recover additional insurance proceeds for property damage sustained from a fire at one of Railroad's commercial properties ("Building"). The Insurance Company insured the Building and paid Railroad for damages arising out of the fire. Railroad argues that it is entitled to additional payment under the terms of the insurance policy ("Policy") in the form of a depreciation holdback and code upgrade coverage.

The district court granted summary judgment in favor of the Insurance Company, holding that the terms of the Policy were clear and unambiguous, Railroad did not satisfy the Policy's condition precedent for receiving the additional insurance proceeds, and Railroad's failure to perform could not be otherwise

1 In the complaint, Railroad named Acadia Insurance Company ("Acadia") as the purported issuer of the insurance policy. It is undisputed that the insurance policy was actually issued by Tri-State Insurance Company of Minnesota ("Tri-State"). Acadia and Tri-State are both ultimately owned by W. R. Berkley Corporation. On appeal, defendant argues for the first time that it is entitled to judgment as a matter of law because there was never a contract between Railroad and Acadia. Defendant never filed a motion to dismiss due to misnomer and did not argue misnomer as a ground for summary judgment before the district court. This argument is thus waived. See Reyes-Colón v. United States, 974 F.3d 56, 62 (1st Cir. 2020). Further, it is clear that Tri-State had notice of this action against it, and defendant has not shown that any prejudice would result from permitting Railroad to substitute Tri-State for Acadia.

- 2 - excused. R.R. Ave. Props., LLC v. Acadia Ins. Co., No. 19-40155, 2021 WL 4459692, at *4-6 (D. Mass. Sept. 29, 2021).

We affirm.

I. A. Factual Background

Railroad owns commercial buildings in Millbury, Massachusetts, including the Building, which was located at 11 Railroad Avenue. The Insurance Company issued a Commercial Lines Policy, No. ADV 5211789-11, to Railroad for its commercial properties; the Policy was effective from February 26, 2017 to February 26, 2018.

On November 18, 2017, the Building sustained severe fire damage. The Insurance Company retained consultants to assist its investigation of the fire loss and the potential for subrogation claims arising from the fire loss. On December 4, 2017, the Insurance Company determined that no viable subrogation claims existed because the fire was caused by an unidentified arsonist. Given the extent of damage, the building was determined to be a total loss and would need to be rebuilt. On December 11, 2017, the Insurance Company paid Railroad a $25,000 advance payment.

On February 5, 2018, the Insurance Company provided Railroad's public adjuster with an estimate of the building loss. Railroad's public adjuster agreed with