govinfo:USCOURTS-ilsd-3_25-cv-00295-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ILLINOIS 
 
ANDREA CISCO, 
 
Plaintiff, 
 
vs. 
 
LIBERTY MUTUAL 
PERSONAL 
INSURANCE COMPANY, 
 
Defendant. 
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Case No. 3:25-cv-295-DWD 
   
MEMORANDUM & ORDER 
DUGAN, District Judge: 
I. INTRODUCTION  
Before the Court are Plaintiff Andrea Cisco’s Motion for Summary Judgment (Doc. 
23) and Defendant Liberty Mutual Personal Insurance Company’s Motion for Judgment 
on the Pleadings (Doc. 24). Both motions address the issue of the other’s compliance with 
the appraisal process under Cisco’s homeowner’s policy. The motions have been fully 
briefed and are ripe for consideration. For the reasons set forth below, both motions will 
be DENIED. 
II. BACKGROUND 
Cisco alleges a residential fire loss that occurred on November 4, 2023. She made 
a demand for appraisal on October 31, 2024.  A dispute followed with Liberty where it 
contended that Cisco had not provided necessary documentation and that the matter was 
not ripe for appraisal. More specifically , the dispute was regarding whether a 
disagreement existed as to t he valuation of “certain item s of personal property” and 
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“additional living expenses.” (Doc. 1, Ex. 1). She pleads that her Policy contains an 
appraisal clause and that, after she dema nded appraisal on October 31, 2024, Liberty 
Mutual failed to timely appoint an appraiser and that an umpire is therefore required. 
(Doc. 1, Ex. 1).  
Liberty filed its motion to dismiss (D oc. 9) under Rule 12(b)(6)  which the Court 
denied after having stricken from consider ation a November 2024 email chain and 
associated factual assertions (Doc. 9-1) beca use, “at most, it provided evidence bearing 
on a defense in the sense that either the post-loss conditions were not satisfied or that no 
“disagreement” existed.” (Doc. 19) The Court then ordered Liberty to file an answer to 
the complaint. It did so but included two affirmative defenses and a “Counterclaim for 
the Appointment of an Appraisal Umpire”. (Doc. 21) It again attaches to its Motion the 
same November 2024 email chain (Doc. 21-2) that it had attached to its Motion to Dismiss. 
(Doc. 9-1) 
Cisco responded to Liberty’s Counterc laim with an affirmative defense of 
estoppel. (Doc. 22). Cisco argues that since Liberty did not timely engage in the appraisal 
process called for under the policy it is estopped from proposing umpire candidates.  
According to Liberty, it complied with its obligations under the policy to nominate 
an appraiser and a slate of umpires. It indica tes that within 15 days of the denial of its 
Motion to Dismiss, it nominated its slate of umpires and within 20 days of the denial, it 
nominated as its appraiser Mark Davis. Still, those nominations occurred approximately 
two years after the fire loss. (Doc. 23, p. 2–4). For its part, Liberty claims that it was not 
required to choose an appraiser or nomina te an umpire until the Court ruled on the 
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Motion to Dismiss because Cisco had not pr oduced necessary documentation of loss. 
(Doc. 28, ¶ 28)1 
III. APPLICABLE LAW 
Federal Rules of Civil Procedure 12(c) allows a party to move for judgment on the 
pleadings “[a]fter the pleadings are closed – but early enough not to delay trial.” Fed. R. 
Civ. P. 12(c). But the applicable analysis dep ends on the function of the motion. A 
challenge to the sufficiency of the complaint mimics in large part a Rule 12(b)(6) motion 
and is likewise governed by the plausibility standard.  Wolf v. Riverport Ins. Co., 132 F.4th 
515, 518- 519 (7th Cir. 2025) (explaining that under Rule 12(c) and Rule 12(b)(6) the factual 
allegations must “raise a right to relief above the speculative level for the suit to proceed 
any further”). But “either party can use Rule 12(c ) motion to dispose of the case on the 
basis of the underlying substantive merits”.  Id. Additionally, a 12(c) motion “also 
provides a vehicle for the defendant to raise several of the defenses enumerated in Rule 
12(b) ―including failure to state a claim upon which relief can be granted ― after the close 
of the pleadings.” Id.  
When a Rule 12(c) motion is made, judgment on the pleadings is proper where no 
disputed issue of material fact remains and “the movant is entitled  to judgment as a 
matter of law.” Nat’l Fidelity Life I ns. Co. v. Karaganis , 811 F.2d 357, 358 (7th Cir. 1987). 
 
1 Liberty Mutual moved to dismiss on thre e related grounds. First, it asserted that the parties are “not at issue on the 
appraisal” because, in Liberty Mutual’s view, there was not yet a cognizable disagreement about the amount of loss. 
(Doc. 9, ¶¶ 7-10). Second, it contended Cisco failed to satis fy her “Duties After Loss” as  conditions precedent, i.e., 
by supplying receipts and other documentation for claimed items and providing records on request. Id. at ¶¶ 17-26 
(quoting Doc. 1, Ex. 1, Policy § 1, Conditions ¶¶ 2(e), 2(f)(2)). Third, relying on Illinois authority, Liberty Mutual 
argued that because Cisco purportedly did not produce the requested informatio n (or otherwise fully comply with 
post-loss obligations), she cannot maintain “any action” on the Policy. Id. ¶¶ 27—34. 
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When a Rule 12(c) motion attempts to resolve a case “on the basis of the underlying 
substantive merits,” courts apply the summary judgment standard and consider only the 
contents of the pleadings. Alexander v. City of Chicago, 994 F.2d 333, 336 (7th Cir. 1993);  
Summary judgment is proper if the movant shows that there is no genuine issue 
as to any material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. 
P. 56(a). “Factual disputes are genuine only if there is sufficient evidence for a reasonable 
jury to return a verdict in favor of the non-moving party on the evidence presented, and 
they are material only if their resolution might change the suit 's outcome under the 
governing law.” Maniscalco v. Simon , 712 F.3d 1139, 1143 (7th Cir. 2013) (citation and 
internal quotation marks omitted). In deciding a motion for summary judgment, the court 
must view the evidence in the light most favorable to, and draw all reasonable inferences 
in favor of, the non-moving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 
965 (7th Cir. 2013) (citation omitted).  “Proper interpretation of an insurance policy, even 
if it is ambiguous, generally presents a ques tion of law that is appropriate for summary 
judgment.” USA Gymnastics v. Liberty Insurance Underwriters, Inc ., 27 F.4th 499, 512 (7 th 
Cir. 2022). See also, Zhao v. State Farm Fire & Casualty Co., 2025 Il. App. (2d) 240723, ¶ 
21 (“The construction of a an insurance contract presents a question of law.”) 
IV. DISCUSSION 
It is readily evident from the record so far developed and presented by the parties 
in support of their respective motions that there are facts so much in dispute that neither 
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a motion for judgment on the pleadings nor a motion for summary judgment should be 
granted. First, the areas of agreement. The policy provides, in relevant part: 
APPRAISAL: If you and we fail to agree on  the amount of loss either may 
demand an appraisal of the loss. In this event each party will choose a 
competent appraiser within 20 days aft er receiving a written request from 
the other. The two appraisers will choose  an umpire. If they cannot agree 
upon an umpire within 15 days, you or we may request that the choice be 
made by a judge of a court of record  in the state where the “residence 
premises” is located.  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 the umpire. A decision agreed to by any two will set the 
amount of loss. 
(Doc. 21-1, p. 16, ¶6). 
 It is also not in dispute that there was a fire that did damage to Cisco’s home and 
personal property. In fact, Liberty has made payments toward some of the loss suffered 
by Cisco. Nevertheless, Cisco, believing that the parties had failed to agree on the amount 
of the loss, made a demand for appraisal in October 2024 and named an appraiser.  It is 
also not in dispute that Liberty chose neither an appraiser nor proposed a slate of umpires 
until 2-3 weeks after this Court ruled on it s Motion to Dismiss in October 2025.  Little 
more is agreed upon. 
 The conflict centers on w hether the Policy’s “Appraisal” provisions were initiated 
such that the parties should select their apprais ers. Cisco says that the parties failed to 
agree on the amount of the loss suffered by her and that is enough to trigger the appraisal 
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provision. Liberty says that it was no t clear in November 2024, that there was a 
“disagreement” between the parties regardin g the total personal  property loss and 
additional living expenses and, therefore, t he appraisal process has not been properly 
initiated. (Doc. 21-2)  
Now Liberty argues that the non-payment of the remaining losses and the refusal 
to select an appraiser was due to Cisco’s failure to comply  with her duties under the 
“Conditions” of the policy. (Doc. 28, p.8, ¶ 8-9) It has pled a counterclaim for the selection of 
an umpire and also posits two affirmative defenses. Affirmative Defense No. 1 alleges that Cisco 
had a duty under the policy to generally provide documentation of loss but she failed to fulfill that 
duty. Liberty’s Affirmative Defense No. 2 alleges that Cisco’s fulfillment of the duty to provide 
documentation is a prerequisite to bringing suit. (Doc.21, pp. 5-8) Cisco also asserts the affirmative 
defense of estoppel. 
 The Policy’s “Section I – Conditions” requires that the insured prepare an 
inventory of personal proper ty, “attach all bills, receipts and related documents that 
justify the figures in the inventory” and pr ovide Liberty with “records and documents 
[it] requests.” (Doc. 1-1, p. 24). Liberty claims that Cisco di d not comply with requests 
from Liberty to provide documentation, and, as a result, Liberty was unable to verify the 
amount Cisco was claiming. (Doc. 28, p. 8). Li berty goes on to argue that Cisco’s failure 
to abide by her post-loss dut ies and to provide document ation makes proceeding with 
appraisal absurd. (Doc. 28, pp. 9-11, ¶¶ 41-20). 
 Whether there was indeed a disagreement as  to the proper amount of loss raises 
factual issues as well. It appears that t he process of working th rough the claim for a 
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variety of losses was nearing an end but was still on going, at least as to personal property 
losses and living expenses. It is unclear from the record whether Cisco provided the 
documents requested, or whether those that  were provided adequately supported the 
outstanding claims. Correspondence from Liberty suggests that it requested but had not 
yet received certain requested documentation before the claim could be completed. (Doc. 
9-1).  Therefore, as it argues, no disagreement then existed. 
 Further, neither the pleadi ngs standing alone nor the factual record can support a 
summary determination because it is unclear whether there was, in fact, a disagreement 
sufficient to trigger the appraisal process under the policy. Much of what each party seeks 
depends on whether Cisco complied with her  post-loss policy obligations. Liberty’s 
affirmative defenses go directly to that question while its Counterclaim depends entirely 
on whether she fulfilled her duties. Similarly, Cisco’s motion  presupposes the existence 
of a disagreement, and determin ation of whether it existed depends on facts not in the 
record. In short, neither the pleadings nor t he facts contained in the record leave room 
for summary determination.  
Another bar to a summary determination is the activities following Cisco’s refusal 
to name an appraiser. The record reveals what appears to be a possible shift in Liberty’s  
rationale for its refusal to nominate an appraiser. Liberty’s Counsel, James P. DuChateau, 
believes that the Court’s Order denying Liberty’s Motion to Dismiss was a “de facto order 
compelling Liberty Mutual to participate in the appraisal” and pledged that Liberty will 
“follow the letter and spirit of that Court Order.” (Doc. 23-2) It is not clear what about the 
Court’s Order caused that belief because, as noted, that Order addressed whether the 
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Complaint passed 12(b)(6) muster.   Nevertheless, that apparent shift came only after the 
Court ruled on its Motion to Dismiss and , depending on what evidence might be 
developed in that regard might well impact on  the question of whether a valid basis for 
its refusal existed.  
 Further, each side has presented affidav its in support of their positions on the 
motions. The affidavits purport to state cert ain facts. Some facts ar e in conflict.  For 
example, Dan Long, Cisco’s public adjuster , asserts that the claim was “ripe” for 
appraisal. (Doc. 23-1). In contrast, Liberty pr offers the affidavit of Robyn Famiglietti, 
Senior Claims Resolution Specialist for Liberty, who asserts that “Liberty Mutual had not 
been able to reach a determinat ion as to certain portions of  Plaintiff’s additional living 
expenses component of her claim, needing further documentary materials verifying the 
necessity of these claimed expenses.” (Doc. 28-2, ¶ 7).    So, granting either Cisco’s Motion 
for Summary Judgment or Liberty’s  Moti on for Judgment on the Pleadings would 
require the Court to weigh conflicting plead ings, submissions and affidavits of record. 
Neither Rule 12(c) nor Rule 56 allows summary determinations where such conflict exists. 
   
V. CONCLUSION AND DISPOSITION 
Because there are genuine issues of material fact that are disputed, neither Cisco’s 
Motion for Summary Judgment nor Liberty Mutual’s Motion for Judgment on the 
Pleadings should be granted.  
Accordingly, Cisco’s Motion for Summar y Judgment (Doc. 23) is DENIED. 
Likewise, Liberty Mutual’s Motion for Judgment on the Pleadings (Doc. 24) is DENIED.  
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By separate Order the Court will set this matter for Bench Trial and pre-trial 
conference. 
SO ORDERED. 
Dated: September 29, 2026 
 
 
 
       ___________________________ 
       DAVID W. DUGAN 
       United States District Judge 
 
Judge 
Dugan
Digitally signed 
by Judge Dugan 
Date: 2026.09.29 
12:57:09 -05'00'
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