Dylan O’Malley-Joyce et al. v. Travelers Home and Marine Insurance Company

The plaintiffs have not preserved the arguments they assert on appeal. Three of the four arguments they raise were not pled in their underlying Complaint as required by N.H. Superior Court Rule 8. Moreover, none of the plaintiffs’ appeal arguments were raised before the Trial Court thereby precluding that Court from addressing their merits and/or creating a record for appeal. This Court should not address the plaintiffs’ arguments on the merits, as the issues they raise have not been preserved. If this Court addresses the merits of the arguments raised on appeal, the alleged Administrative Rule violations do not apply. Administrative Rule 1002.16(a) and (d) apply to settlement offers not damages resolved in appraisal. Administrative Rule 1002.09 applies to “total loss” claims and the plaintiffs’ home did not incur a “total loss.” The plaintiffs’ assertion that the final appraisal award is not enforceable because the policy’s appraisal clause does not include the word “binding” ignores the policy’s loss payment language, which equates an appraisal award with a final judgment. (App. 36). The Travelers’ policy states it will pay a loss based upon “the filing of an appraisal 1 Plaintiffs’ Appendix is missing pages 5-18 of the Travelers’ Memorandum of Law in support of Summary Judgment. The entire Memorandum along with Exhibit C is attached as an Addendum. The plaintiffs’ Appendix includes Exhibit A (the policy) and B (the demand for appraisal). award” and a decision by any two appraisers “will set the amount of loss”. (App. 36). Travelers’ policy appraisal language follows that mandated by the New Hampshire Legislature in the Standard Fire Policy. Pursuant to RSA 407:22, all fire policies issued in New Hampshire must allow appraisal. It provides: “An award in writing, so itemized, of any 2 when filed with this Company shall determine the amount of actual cash value and loss.” N.H. Rev. Stat. Ann. § 407:22.

Pursuant to RSA 491:8-a, any party opposing summary judgment, “has the burden of contradicting the proponent's affidavits; otherwise the facts stated in them will be deemed admitted for the purpose of the motion. RSA 491:8-a (Supp. 1975); Community Oil Co. v. Welch, 105 N.H. 320, 199 A.2d 107 (1964).” Arsenault v. Willis, 117 N.H. 980, 983, (1977). The plaintiffs did not oppose Travelers’ Motion and they did not contest the supporting Statement of Facts. Accordingly, those facts were deemed admitted for the proceedings before the Trial Court and for this appeal. On appeal, the plaintiffs confirm they “do not contest the facts.” (Brief, p. 4). Instead, they allege four legal arguments, none of which were presented below and three of which were not included in their Complaint. Although errors of law adjudicated by the Trial Court are subject to de novo review that review does not apply to arguments that were not raised and not preserved. New Hampshire Department of Corrections v. Butland, 147 N.H. 676, 679 (2002); Snow v. American Morgan Horse Assoc., 141 N.H. 467, 472 (1996).

It is well-settled law that this Court “will not consider issues raised on appeal that were not presented in the lower court.” Daboul v. Town of Hampton, 124 N.H. 307, 309 (1983)(citing Carburs, Inc. v. A&S Office Concepts, Inc., 122 N.H. 421, 423 (1982)). The plaintiffs failed to provide the Trial Court with an opportunity to address the arguments they now raise on the merits and they failed to provide a record for appellate review. Id. The burden is on the appealing party to demonstrate that the issues on appeal were raised before the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). In essence, the plaintiffs have accused the Trial Court of committing an error of law for its failure to anticipate unknown and unidentified issues plaintiffs have raised for the first time on appeal. Allowing the plaintiffs to seek reversal of the Trial Court based on arguments not presented below precludes this Court from receiving a proper record from which to decide the issues and has the adverse effect of encouraging repeat piecemeal appeals.

Because the plaintiffs did not ask the Trial Court to interpret, as a matter of first impression, whether the language used by Travelers in its policy to describe the binding nature of loss adjustment by appraisal is enforceable, the lower court received no evidence about the policy language drafting history. It likewise received no testimony about the parties’ discussions and/or communications about the finality of the appraisal process. Travelers was precluded from introducing any evidence to rebut the arguments the plaintiffs now raise, as they were never advanced. Allowing the plaintiffs to assert these arguments for the first time on appeal when Travelers is precluded from supplementing the record with additional evidence is unduly prejudicial. Although New Hampshire is a notice pleading state, the plaintiffs’ initial complaint must still “state the general character of the action and put both the court and counsel on notice of the nature of the controversy.” Pike Industries v. Hiltz Constr. 143 N.H. 1, 4 (1998). In this case, the plaintiffs’ complaint did not allege the appraisal process language was unenforceable nor did it allege that Travelers violated Administrative Rules 1002.16(d) or 1002.09 as required by Superior Court Rule 8. The plaintiffs’ attempt to amend their complaint on appeal should be rejected by this Court. In Donald Toy v. City of Rochester, 172 N.H. 443 (2019) the defendant challenged the underlying verdict because the plaintiff’s complaint did not allege the imposition of restrictive covenants violated the conditions of sale. This Court observed that it “is well settled that a defendant is entitled to be informed of the theory on which the plaintiff is proceeding and the redress that the plaintiff claims as a result of the defendant's actions. Porter v. City of Manchester, 151 N.H. 30, 43, 849 A.2d 103 (2004).” Donald Toy, 172 N.H. at 448. This Court found no surprise as the claim had been advanced in the parties summary judgment pleadings. The Court also found the defendant had not timely objected to the evidence. Based upon the record, this Court concluded it saw “no unfairness in the trial court's consideration of the [plaintiff’s] arguments and evidence submitted at trial. Cf. Morancy v. Morancy, 134 N.H. 493, 497-98, 593 A.2d 1158 (1991).” Donald Toy, 172 N.H. at 448.

Unlike the setting in Donald Toy, no party raised any arguments addressing appeal issues I, II, and IV until appeal.2 The plaintiffs’ late assertion of new theories of liability should be excluded just as the defendant’s late assertion of an undisclosed defense was precluded in Welch v. Gonic Realty Trust Co., 128 N.H. 532 (1986). In that case, the defendant argued at trial, for the first time the plaintiff should not recover because he was trespassing at the time of his injuries. This Court concluded it was reversible error to allow the defendant to assert an undisclosed defense that was not in its answer or pretrial statement. Similarly, here, the plaintiffs’ complaint did not allege that the underlying appraisal award should be overturned because it was not binding. The plaintiffs’ complaint also failed to reference Administrative Rule 1002.16(d) or 1002.09. The only Administrative Rule referenced in the Plaintiffs’ lengthy complaint is 1002.16(a)(1). 2 Plaintiffs’ complaint alleged a violation of Administrative Rule 1002.16 (a)(1), however no evidence addressing that alleged rule violation was presented to the Trial Court. (Appeal Issue III).

Travelers had no notice of appeal issues I, II and IV, as they were not contained in the plaintiffs’ Complaint. Thus, in addition to these theories not being a subject of briefing in the court below, neither Travelers nor the Trial Court had reason to anticipate them. As such the plaintiffs’ appeal should be dismissed and/or the summary judgment in favor of Travelers be affirmed because the plaintiffs’ have failed to preserve any of the issues it raises for the first time on appeal.

If this Court should decline to dismiss based on a lack of preservation of the issues, the Court should affirm summary judgment on the merits because the policy language is unambiguous, binding, and enforceable. The plaintiffs ask this Court to reverse the Trial Court’s summary judgment order enforcing the parties’ underlying appraisal award because they maintain Travelers’ appraisal language does not expressly state the award is “binding.” Instead, the Travelers language states that an appraisal decision agreed to by any two, “will set the amount of loss.” This appraisal language immediately follows the policy language that confirms Loss Payment will be made by one of three ways including:

c. There is a filing of an appraisal award with us. (App. 36). The plaintiffs’ challenge to the finality of an appraisal award ignores the policy’s Loss Payment language, which expressly identifies an appraisal award as equivalent to a final judgment and one of three ways a covered loss is adjudicated. The suggestion that appraisal is informative but not binding would eliminate the very basis for invoking appraisal as an informal, less expensive and more expedient process by which to adjudicate a covered loss without court intervention. The absence of the word “binding” in the appraisal clause does not make the appraisal clause language tentative or ambiguous. In fact, the language in the Travelers’ policy, which confirms that a decision by any two appraisers “will set the amount of loss, ” is similar to the language endorsed and required by the N.H. Legislature for every fire loss policy issued in New Hampshire. See RSA 407:22.

Pursuant to RSA 407:22, every fire policy issued in New Hampshire must contain the option of appraisal. The statutorily mandated appraisal language does not state that a decision of any two will be “binding.” Instead, the statutory language in RSA 407:22, much like Travelers’ language, states, “[a]n award in writing, so itemized, of any 2 when filed with this Company shall determine the amount of actual cash value and loss.” N.H. Rev. Stat. Ann. § 407:22 (emphasis added). The plain language used by the Legislature to characterize binding appraisal entirely rebuts the plaintiffs’ position as a matter of law. Beyond the fact that New Hampshire law already supports the binding enforceability of a decision of two appraisers that “sets” or “determines” the amount of an insured loss, (See RSA 407:22), none of the foreign case law cited by the plaintiffs supports a contrary view. For example, in Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142 (Ct. App. Tenn. 2001) a Tennessee Court of Appeals invalidated an appraisal award because it did not comply with state law, not because of the alleged non-binding policy language. Under Tennessee law, a written agreement to submit a matter to arbitration requires the signature of both parties. Tennessee Statute 29-5-302 (a). The insured, however, did not sign the appraisal clause in Merrimack’s policy or the policy application and the Court concluded that pursuant to Tennessee’s statutory law, neither party could require the other to submit to binding arbitration without such signature. The Court of Appeals decision in Batts is not persuasive because New Hampshire has no comparable statute requiring a written agreement signed by the parties before appraisal can be invoked.

The Tennessee Batts Court also found that the appraisers had exceeded their authority. Specifically, the Merrimack homeowner’s policy allowed the appraisers to determine the “amount of the loss, ” but did not authorize the appraisers to determine coverage including whether any particular loss or damage was caused by a covered peril.

The Court noted responsibility for resolving disputes over coverage rests with the Court, not the appraisers. Accordingly, the Court concluded the appraisers had erroneously decided coverage issues when they determined the cause of various damages. In this case, the plaintiffs do not assert the appraisers improperly decided coverage issues in appraisal, and instead dispute solely the amount of loss set by the panel. The Wisconsin Supreme Court decision cited by the plaintiffs does not support their appeal because that Court enforced appraisal language similar to Travelers. Farmers Automobile Ins. Assoc. v. Union Pacific Railway Co., 768 N.W.2d 596 (WI 2009). The appraisal clause in that case stated: The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to an umpire. A decision agreed to be any two will set the amount of loss. 768 N.W.2d at 605 (emphasis added). In Farmers, the insured filed suit prior to the invocation of appraisal. The Wisconsin Supreme Court dismissed the suit without a ruling to allow the appraisal process to proceed. The insured then “sent a letter to Farmers indicating that he would only continue the appraisal process if it was not conducted pursuant to the Policy, and was simply considered part of the mediation process and non-binding.” Farmers Auto. Ins., 768 N.W.2d at 601. The insured confirmed his understanding that appraisal policy language, similar to Travelers, was binding. The carrier refused to modify its policy terms to substitute mediation for binding appraisal and asked the Court to enforce the appraisal agreement. The Court granted the carrier’s motion and the appraisal panel set the value. The insured then moved to vacate and/or modify the binding award. On appeal, the insured argued the appraisal process was not binding, but the Court concluded the insured was “simply wrong” in his assertion. The Court stated, “[t]he text of the [policy] provision clearly provides for an appraisal process that may be invoked by either party and, ‘will set the amount of loss upon its completion.” 768 N.W.2d at 604-605. Thus, the Wisconsin Supreme Court expressly rejected the very arguments raised by the plaintiffs in this appeal. As the Wisconsin Supreme Court noted, appraisals “deserve a more deferential review because the appraisal process is a fair and efficient tool for resolving disputes.... Appraisals also promote finality, are time and cost-efficient and place a difficult factual question – the replacement value of an item – into the hands of those best equipped to answer that question. As a form of alternative dispute resolution, the appraisal process is favored and encouraged.” 768 N.W.2d at 607. The Wisconsin Supreme Court’s decision favors this Court’s affirmance of the summary judgment order in Travelers’ favor.

The plaintiffs in this case seem to base their argument solely on the dissent in that case; notwithstanding the dissenting opinion, Wisconsin embraces the notion that such appraisal language firmly establishes that arbitration is binding. Thus, in an unpublished decision, the Wisconsin Court of Appeals in Esser v. Hawkeye-Sec. Ins. Co., 2018 WL 2422652, 917 N.W.2d 233 (Ct. App. WI 2018), later enforced the finality of appraisal language similar to that contained in the Travelers’ policyrelying in part on Farmers Automobile Ins. Assoc. v. Union Pacific Railway Co., 768 N.W.2d 596 (WI 2009). There the policy language stated, “appraisers will separately set the amount of loss.... If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.” Esser v. Hawkeye-Sec. Ins. Co., 917 N.W.2d 233 *4 (Ct. App. WI 2018)(emphasis added).

In Esser, the insured received a $2.7 million appraisal award. Post-award the insured argued they should be allowed to return to appraisal for items not included in the first proceeding. Id. The Court rejected the insured’s argument, noting in part the policy’s loss payment language, which like the Travelers’ policy, equates the issuance of an appraisal award with a final judgment that concludes all matters between the parties. Id. at *6. This Court should likewise find the Travelers’ appraisal language is enforceable, it is binding and it is a final resolution of any damage claims the insureds could have litigated in relation to their water claims. (App. 103, *6). The plaintiffs’ brief next represents that the Federal District Court for the District of Maine “entered a similar order” to that issued by a Louisiana court with respect to the non-binding authority of appraisal. Notably, Louisiana provides the only case cited by the plaintiffs in which a court refused to enforce appraisal language similar to that contained in the Travelers policy. For reasons more fully stated below, the plaintiffs misconstrue the significance of that case. Regardless, contrary to the plaintiffs’ representation, the Maine District Court did not invalidate the appraisal language before it in Musto v. Liberty Ins. Co., 2020 WL 7212989 (D. Me. 2020). Instead, the Musto Court noted that it was premature to decide the issues raised by the plaintiffs in response to a 12(c) Motion for Judgment on the Pleadings. At best, the Court noted there were disputed issues regarding the appraisal process, including the legitimacy of the award due to non-compliance with the policy and the independence of the appraisers. The Court concluded the case was in an “embryonic state” and that the defendant would be free to renew its arguments that the appraisal award was binding in a Motion for Summary Judgment at a later date. The District Court’s decision in Musto did not address whether the appraisal language was binding and does not support the plaintiffs’ allegation that the Travelers’ appraisal language is ambiguous and unenforceable. As noted, the only support cited by the plaintiffs that remotely suggests that an appraisal award may be non-binding is in dicta in an unreported decision issued by a Federal Court for the District of Louisiana. Lewis v. Republic Fire & Cas. Ins. Co., 2016 WL 112732 (W.D. LA. 2016). The Western District Court’s decision was not based on a finding that the appraisal language was non-binding but rather because no umpire had been selected to resolve the appraisers’ differences. Further, the case is factually distinguishable from the one before this Court.

In Lewis, the insured claimed damages following a fire loss. The carrier investigated and issued a payment; however, the insured invoked appraisal. Two appraisers reviewed the loss and executed an appraisal award following which the carrier issued a supplemental payment. Post-appraisal, while doing repairs the insured’s contractor discovered “hidden damage and missing items” totaling $39, 006.49; the estimate was submitted to the insured’s appraiser who then signed off. The carrier refused, however, to consider another supplemental payment and the insured filed suit. The Western District Court concluded that in order to affirm the appraisal award and dismiss the plaintiff’s breach of contract and bad faith claims, it would have to “conclude the appraisal award amount and that the process has been completed; the appraisal award is binding; and the plaintiff’s dwelling damages under the policy are limited to the amount contained in the appraisal award.” 2016 WL 112732 ¶ 5. The Court concluded it could not grant the insurer’s request because it lacked the authority to do so and it could not conclude the appraisal process had been completed. Particularly, the Court found that the two appraisers did not agree to the amount of the loss and, notwithstanding the policy language providing that appraisal differences be submitted to an umpire that was not done. Additionally, the policy did not provide that the court could set the amount loss rather, that was something to be done by appraisal – a process that had not been completed.

Unlike Lewis, the plaintiffs here did not submit a supplemental post-appraisal demand for hidden damages. Although they describe “missing” damage items as hidden in their brief, (15-17) in the Complaint the plaintiffs allege their damages totaling $4, 495 were “missed items not paid for outside of repair costs” as opposed to post-appraisal hidden damages. (App. 96-106). In contrast to the damages in Lewis, all the damages claimed by the plaintiffs here were, or could have been, submitted to appraisal. For instance, the plaintiffs asserted that beginning in mid-December 2017 and during negotiations, prior to appraisal, they “noticed that there were significant aspects of the reconstruction missing from the insurance offers they were receiving. These were pointed out to the adjustor.” (App. 98-99, ¶ 20). The plaintiffs claim they had to point these items out to multiple adjustors on multiple occasions. (App. 99, ¶ 21). The plaintiffs claim the items missing from the Travelers’ estimate caused a wide “disparity between what the insurance company would agree to pay, and the actual cost of doing the work….” (App. 99, ¶ 24). The plaintiffs claim they “continued to point out issues and items that were missing from the Travelers estimates.” (App. 100-101, ¶ 27, 33). All of the plaintiffs’ allegations of missed damages pre-date appraisal. (App. 96-106). The plaintiffs’ Complaint contains no assertion of “hidden” post appraisal damages, rendering the Lewis decision entirely inapplicable to this case. Id. The clear trend in case law it to uphold appraisal clauses such as that involved in this case as binding. For instance, in Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868 (7th Cir. 2000) the Seventh Circuit Court of Appeals rejected an insured’s challenge that Home’s appraisal language was not binding. Home’s policy language, like Travelers’, stated, “the appraisers shall then appraise the loss, stating separately actual cash value, and loss to each item, and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss.” Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 875 (7th Cir. 2000)(emphasis added). The Seventh Circuit found the absence of the word “binding” in the appraisal clause did not render the award unenforceable. Instead, “the strongest indication in Jupiter's policy that the appraisal would be binding can be found in the statement that the appraisal award “shall determine” the amount of the loss.” Jupiter Aluminum Corp. 225 F.3d at 875. Similarly, the Supreme Court of Texas enforced appraisal language that stated “[t]he appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss.” State Farm Lloyds v. Johnson, 290 S.W.3d 886, 888 (Tex. 2009). The Court found that in every property damage claim, “someone must determine the ‘amount of loss, ’ as that is what the insurer must pay. An appraisal clause ‘binds the parties to have the extent or amount of the loss determined in a particular way.’ Like any other contractual provision, appraisal clauses should be enforced.” State Farm Lloyds v. Johnson, 290 S.W.3d 886, 895 (Tex. 2009).

This Court should enforce the binding nature of the parties’ appraisal award as it is the equivalent of a final judgment and/or settlement among the parties. See generally 15 Couch on Insurance Section 213”12 (2020); 2 Ins. Claims & Disputes Section 9:33 (6th ed.).

III. NEW HAMPSHIRE ADMINISTRATIVE RULE INS. 1002.16(d), WHICH

This Court should not review the plaintiffs’ arguments with regard to New Hampshire Administrative Rule Ins. 1002.16(d) as the alleged rule violation was not raised in the Trial Court and was not raised in the plaintiffs’ Complaint. For the first time on appeal, the plaintiffs argue this Court should reverse summary judgment that concluded the plaintiffs’ damages were either not covered under the policy and/or encompassed within the binding appraisal award, because of alleged Insurance Department Rule violations. If the plaintiffs believed such rule violations had occurred, which Travelers disputes, it should have raised them during the course of appraisal or in their complaint as opposed to on appeal.

If this Court addresses the alleged Rule violation on its merits notwithstanding plaintiffs’ failure to preserve the issue for appeal, the Court should reject the plaintiffs’ contention because the Rule simply does not apply. The Rule requires “a provision for coverage of hidden damage” that post-dates “any settlement made based upon an agreement negotiated by an adjuster on behalf of the insurer with a contractor or repairer.” 1002.16(d). Travelers did not reach a settlement with the plaintiffs so there is no requirement that it include a provision to allow for the payment of potential hidden damages. The parties were unable to reach an agreement on the cost of repairs and thus submitted the question to appraisal.

Additionally, contrary to the representations by appellate counsel, the plaintiffs did not assert a “hidden damage” claim in their Complaint. Rather, as noted, plaintiffs claim that during the adjustment process in December 2017, Travelers missed “significant aspects of the reconstruction” in their estimates. The plaintiffs identified these omissions to the adjuster. (App. 99, ¶ 20). The plaintiffs claimed their home had many custom features that “Travelers failed and/or refused to take into consideration during their review process.” (App. 99, ¶ 22). For instance, the insured alleged she had to point out the measurement of her cabinets, as they were not standard to ensure appropriate pricing. (App 99, ¶ 23). This course of conduct, according to the plaintiffs, resulted in a disparity between what Travelers was willing to pay and the actual cost of doing the work. (App. 99, ¶ 24). After receiving Travelers’ estimates the “plaintiffs continued to point out issues and items that were missing from the Travelers estimates.” (App. 100, ¶ 27). The plaintiffs asserted, “Travelers has refused to pay the total actual value of the claims, even after the Plaintiffs demonstrated missed items and inaccurate costs in the Travelers estimates.” (App. 101, ¶ 33)(emphasis added). Finally, they claimed, “Travelers engaged in unfair settlement practices when it continuously left items off its estimates after receiving supporting evidence from the Plaintiff/Insureds…” (App. 103, ¶ 49). The plaintiffs’ Complaint confirms they seek repair costs identified during the claims process, which Travelers refused to pay. These missed repair costs were not described as “hidden” in their Complaint and to re-characterize them on appeal as such is inappropriate. Absent an allegation in their Complaint for “hidden” damages the plaintiffs’ reliance on Insurance Rule 1002.16(d) and the cases cited in argument II of plaintiffs’ brief are misplaced. Because a violation of Rule 1002.16(d) is wholly unsupported by the facts in the record, the plaintiffs’ argument must fail. IV. NEW HAMPSHIRE ADMINISTRATIVE RULE INS. 1002.16(a)(1),

The plaintiffs did allege that Travelers’ recommended contractors were not conveniently located or known in the area and this might be construed as raising a violation of Ins. Rule 1002.16(a)(1) in plaintiffs’ Complaint. (App. 100, ⁋28).

Significantly, however, the plaintiffs did not raise this alleged Rule violation with the Trial Court and thus it is not preserved for appeal. Even if this Court were to determine that the issue was somehow preserved, which Travelers denies, summary judgment should still be affirmed. As noted previously, Rule 1002.16 applies to “every settlement offer” made by the insurer. Ins. R. 1002.16(a). Although Travelers’ attempted to resolve this loss prior to appraisal, the plaintiffs refused its offers and the claims were not resolved until the February 2019 appraisal award. (App. 119). If the plaintiffs disputed the ability of the contractors retained by Travelers to perform the repairs, their recourse was to present estimates from their own alternative local contractors in appraisal.

Because the plaintiffs failed to contest the appraisal process and instead simply dispute the amount of the award, this Court should presume the appraisal panel acted in accordance with all applicable Insurance Regulations, including any obligation that repairs be made by a competent and conveniently located contractor for the dollar award rendered. Bean v. Red Oak Mgt. Inc., 151 N.H. 248 (2004)(appellate court would assume that evidence supported the trial court when the moving party failed to provide a record for appeal.). Again, because the plaintiffs never raised this issue in the Trial Court below, this Court should affirm the Trial Court’s decision because the undisputed record does not establish a violation.

Also for the first time on appeal, the plaintiffs claim that Travelers violated Insurance Rule 1002.09(b). (Issue IV). This alleged rule violation is not contained within the plaintiffs’ Complaint. Nor did the plaintiffs raise this argument in response to Travelers’ Motion for Summary Judgment and thus it is not preserved for appeal. Daboul v. Town of Hampton, 124 N.H. 307, 309 (1983)(citing Carburs, Inc. v. A&S Office Concepts, Inc., 122 N.H. 421, 423 (1982)).

If this Court were to review this argument on its merits, affirmation of summary judgment is appropriate because the rule simply does not apply. The Rule’s preface itself confirms that it applies when the insureds property has been “determined to be a total loss.” The plaintiffs’ Complaint does not allege a total loss; rather, the pleadings allege water loss damage that partially impacted their home. Cf. Nicolaou v. Vermont Mut. Ins. Co., 155 N.H. 724 (2007)(general discussion of total loss policy provision).

The Trial Court’s decision should be affirmed on appeal. The plaintiffs’ appeal arguments were not set forth in their Complaint or in response to Travelers’ Motion for Summary Judgment. The plaintiffs should not be allowed to raise legal and factual challenges to the appraisal process for the first time on appeal. The entirety of the record on appeal consists of the Travelers’ evidence and argument in support of summary judgment in its favor. There being no contrary evidentiary record establishing either an issue of disputed fact or law, summary judgment should be affirmed on its merits.

I hereby certify that a copy of the within was this day served via electronic submission through the Court’s electronic filing system upon R. James Steiner, Esquire.