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Date: 10-22-2024
Case Style:
Verstile Roofing, LLC v. Tim Horacek
Case Number:
Judge: Ryan E. Carson
Court: District Court, Buffalo County, Nebraska
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Kearney, Nebraska breach of contract civil litigation lawyers represented Plaintiff and Defendant.
Horacek incurred damage to his roof from a windstorm. Although Horacek requested that his insurance carrier MutualAid eXchange Insurance (MAX) pay for an entire roof replacement, MAX refused on the basis that the windstorm did not cause a total loss requiring a total roof replacement. Instead, MAX offered to pay to replace
half of the roof. Horacek requested proposals from different contractors including Versatile to fix the portion of the roof which MAX had agreed to pay. But rather than provide the requested bid, Versatile proposed to act as an advocate for Horacek to convince MAX to pay for a total roof replacement and then replace the roof with proceeds paid by MAX. Notably, the specific language in Versatile's proposal to Horacek provided that Versatile would "hereby submit specifications and estimates" as follows:
• [Versatile] will do insurance specified repairs for the negotiated RCV Insurance proceeds. [Horacek] is responsible for deductible and any upgrades.
• By signing below, [Versatile] shall be made an advocate/representative on [Horacek's] behalf to the Insurance company. [Versatile] will be able to discuss, correspond, and send/receive directly from the insurance company any documentation regarding the claim.
• If [Versatile] can't get the Insurance carrier to agree to a full roof replacement. This contract will be void and [Horacek] will be released from the contract.
We propose to furnish material and labor - complete in accordance with above specifications for the sum of: (Insurance RCV Allowance).
The agreement also included a penalty clause which provided:
You, the customer, may cancel this binding contract, assuming work has not begun, at any time prior to midnight of the third business day after the date of this transaction. Cancellations occurring after the third day will incur a charge of thirty percent of the full contract amount.
Versatile's representative, Jordan Johnson, and Horacek signed the proposal on June 3, 2022. About a week after Horacek and Versatile executed the proposal, Horacek reached out to Versatile and spoke with Johnson, who indicated that he had been unable to get MAX to approve a full roof replacement. Johnson informed Horacek that Versatile had contacted the insurance adjuster but that the adjuster "would not change his mind on replacing the whole roof and stood by his appraisal of half a roof."
On June 15, 2022, before any work had begun on Horacek's roof, his roof sustained further damage following a hailstorm. Horacek filed a second insurance claim and MAX placed the first claim on hold pending further inspection. Versatile completed its own subsequent inspection of Horacek's roof on June 17. MAX performed its subsequent inspection on June 23.
In July 2022, MAX terminated the first insurance claim for the wind damage and opened a subsequent claim under a new claim number for the hail damage to Horacek's roof. MAX eventually approved the second claim and agreed to pay for a total roof replacement. Versatile submitted a second proposal to Horacek for the roof replacement, but Horacek rejected the proposal and hired a different roofer to replace his roof.
On August 24, 2022, Versatile filed a complaint against Horacek alleging that Horacek had breached their original contract by hiring another contractor to replace his roof and requesting the court award Versatile liquidated damages as agreed by the parties. Versatile asserted that the proposal provided Horacek with a 3-day grace period to withdraw from the contract, but that cancellation after the grace period would result in liquidated damages of 30 percent of the full contract amount. Versatile alleged that because Horacek did not cancel the contract before the 3-day grace period expired, the court should award Versatile $10,564.32 in liquidated damages as provided in the contract. Horacek responded by denying he breached the contract, alleging that the contract became void when Versatile failed to obtain approval from MAX to cover a full roof replacement, which rendered the contract void by its express terms, and that MAX's eventual approval of a total roof replacement was the result of a subsequent hailstorm.
On August 23, 2023, Horacek filed a motion for summary judgment alleging that the undisputed facts demonstrated that Versatile failed to meet the express condition in the contract and that under the terms of the contract, Horacek was released from his obligation to perform. Through affidavits submitted into evidence, in addition to the facts as set forth above, Horacek asserted that the full roof replacement approval did not result from Versatile's actions, but rather because of a subsequent hailstorm. Specifically, in reference to MAX's approval of the total roof replacement, Horacek submitted the affidavit of Jeremy Shewmaker, the claims adjuster for MAX insurance, who asserted, "I would not have been persuaded to approve a full roof replacement based on the damage to the roof at the time [of the first loss], after receiving the engineers' report, as I would defer to their expertise in the matter." Shewmaker's affidavit further asserted that he closed out the first claim for wind damage to the roof, opened a subsequent claim for hail damage, and approved a full roof replacement on the second claim "based on the subsequent hail damage." In furtherance of that approval, Shewmaker asserted:
I do not have any record of ever receiving a bid or speaking to any representatives from [Versatile] for either of [Horacek's] roofing claims in 2022.
The full roof replacement approved in July 2022 was the result of hail damage present after the second roofing claim in 2022 that was not present at the time of my decision for MAX Insurance to only cover a half roof replacement under the first insurance claim.
To rebut this evidence, Versatile offered Johnson's affidavit, which provided in pertinent part that following the June 15, 2022, hailstorm, he completed a second inspection of Horacek's roof. He stated that, "As a result of my June 17, 2022[,] inspection, I was able to get [MAX] to authorize a full roof replacement. Prior to that June 17, 2022[,] inspection, [MAX] only pre-authorized a half roof replacement."
Following the hearing, the district court granted Horacek's motion for summary judgment and dismissed Versatile's complaint with prejudice. Specifically, the court's order found:
There is no dispute that the June 3, 2022[,] proposal expressly provided that if Versatile . . . could not arrange a full roof replacement with the carrier, the contract would be "null and void and . . . Horacek will be released from the contract." Versatile also does not dispute that its employee . . . Johnson represented to [Horacek] approximately one week after the execution of the proposal that the insurance carrier would not change its mind and stood by the appraisal for half of the roof. According to the plain terms of the agreement then, the contract became "null and void" and was terminated at that time. See Coffey v. Planet Grp., Inc., 287 Neb. 834, 841, 845 N.W.2d 255, 262 (2014) ("When the terms of a contract are clear, a court may not resort to rules of construction, and the terms are to be
accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them").
* * *
Versatile Roofing, LLC v. Horacek, A-23-950 (Neb. App. Oct 22, 2024)
Outcome: Judgment in favor of Defendant affirmed on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: