govinfo:USCOURTS-wiwd-3_25-cv-00448-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WISCONSIN 
  
 
SANDSTONE POINT CONDOMINUMS 
ASSOCIATION, INC., 
 
Plaintiff, 
v. 
 
ERIE INSURANCE COMPANY, 
 
Defendant. 
OPINION and ORDER 
 
25-cv-448-jdp 
 
 
This is an insurance dispute about hail damage.  Plaintiff Sandstone Point 
Condominiums asserts claims against its insurer, defendant Erie Insurance Company , for 
breach of contract and bad faith . The merits of the dispute are not before the court. Rather, 
Erie moves for partial summary judgment on the ground that Sandstone’s breach-of-contract 
claim is untimely. Erie does not seek summary judgment on the bad faith claim. 
It is undisputed that Sandstone filed this lawsuit after the contract’s two-year deadline. 
But Sandstone contends that Erie should be estopped from asserting the deadline or the 
deadline should be tolled because “Erie continued to investigate, evaluate, and adjust 
Sandstone’s claim through and beyond that deadline.” Dkt. 35, at 8. No reasonable jury could 
find that Sandstone has satisfied the standard for estoppel or tolling, so the court will grant 
Erie’s motion for partial summary judgment.  
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UNDISPUTED FACTS 
The following facts are undisputed.1 
On March 2, 2023, there was a hailstorm in Madison, Wisconsin, where plaintiff owns 
two condominium buildings. Sandstone submitted a claim  to Erie for property damage. Erie 
inspected the property and approved replacement of 45 static box/aluminum roof vents at a 
replacement cost value of $3,369. In April 2023, Erie mailed a check to Sandstone.2 
More than a year late r, i n July 2024,  Sandstone hired Miller Public Adjusting to 
conduct a new inspection of the property. In September 2024, Miller concluded that the 
replacement cost value for damage to the property from the hailstorm  was approximately 
$120,000. Miller submitted its findings to Erie and requested reinspection.  Erie denied this 
request, standing by its previous determination. 
In October 2024, Miller sent another email to Erie, raising several questions about its 
determination. One day later, Erie hired Young & Associates Engineering to inspect 
Sandstone’s property. (The parties do not explain why.) After that inspection, in a letter dated 
February 27, 2025, Erie updated its calculation of replacement cost value to $15,181.39  and 
issued a check to Sandstone for the actual cash value. (The parties do not explain why Erie 
changed its calculation, and they do not say what the amount of the check was.) The letter also 
 
1 Erie submitted what it called “supplemental” proposed findings of fact with its reply brief. 
Dkt. 41. The court has disregarded th e supplemental facts  because the court’s summary 
judgment procedures do not allow moving parties to submit a second set of proposed findings 
of fact and because Sandstone did not have an opportunity to respond to Erie’s supplemental 
facts. 
2 Sandstone did not receive the check right away because the address Erie had on file for 
Sandstone was not current. Dkt. 40, ¶¶ 11–12. Sandstone does not say when it received the 
check, but it does not allege that Erie failed to resend it. 
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reminded Sandstone of a policy provision that requires insureds to bring a lawsuit within two 
years of the loss.  
In March 2025, Miller challenged Young’s conclusions in multiple emails, requesting 
“further investigation.” Dkt. 37-11, at 1. The parties do not say in their proposed findings of 
fact whether or how Erie responded to that request.  
On May 5, 2025, Erie sent a letter to Sandstone that included the following statements: 
As you’re aware, we made an Actual Cash Value payment to you 
on March 3, 2025. Your claim file remained open to consider 
payment of the replacement cost holdback. . . . In order for us to 
consider releasing the replacement cost holdback, we’ll need the 
documentation supporting the actual cost incurred to comp lete 
the repairs.  . . . Once received, we will review the information 
submitted to consider issuing payment of the replacement cost 
holdback, up to the actual cost earned. 
. . . I will be closing your file at this time; however, if the repairs 
are completed and the documentation to support those repairs is 
received I will reopen the file, 
Please be advised that nothing in this letter is intended to waive 
any of the terms, conditions or defenses under the policy.   
Sandstone filed this lawsuit on May 6, 2025. 
Sandstone is incorporated in Wisconsin, and its principal place of business is in 
Wisconsin. Dkt. 43. Erie is incorporated in Pennsylvania, and its principal place of business is 
in Pennsylvania.  Id. It is reasonable to infer from Sandstone’s allegations that more than 
$75,000 is in controversy. So the court may exercise jurisdiction under 28 U.S.C. § 1332. 
ANALYSIS 
Erie moves for partial summary judgment on Sandstone’s breach -of-contract claim, 
contending that Sandstone failed to comply with the following provision in the relevant policy: 
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“We may not be sued unless there is full compliance with all the terms of this policy. Suit must 
be brought within 2 years . . . after the ‘ loss’ occurs.” The parties agree that the alleged loss 
occurred on March 2, 2023 (the day of the hailstorm), so the deadline passed on March 2, 
2025, more than two months before Sandstone filed this case . Sandstone contends that Erie 
should be estopped from relying on that deadline or the court should toll the deadline.  
On a motion for summary judgment, the question is whether there are any genuine 
disputes of material fact. Fed. R. Civ. P. 56(a). A factual dispute is genuine if it is based on 
admissible evidence that actually contradicts opposing evidence. See Carroll v. Lynch, 698 F.3d 
561, 565 (7th Cir. 2012). A genuine factual dispute is material if it could make a difference to 
the outcome of the case, or, in other words, a reasonable jury could find for the nonmoving 
party, after drawing all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 
U.S. 242, 248 (1986); Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 314–15 (7th Cir. 2011); 
Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). 
Sandstone does not separate its arguments regarding estoppel and tolling. But they are 
not the same thing, so the court will consider whether Sandstone has raised a genuine dispute 
on either issue. 
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A. Estoppel 
In the context of untimely insurance claims, Wisconsin courts have articulated the 
standard for estoppel in different ways .3 But all of the cases require the plaintiff to show  at 
least one of two things: (1) the insurer induced the insured to delay bringing suit until after 
the deadline; or (2) the insurer engaged in some type of misconduct that would make it 
inequitable to enforce the deadline.  Wisconsin courts have also held that any claim for 
equitable estoppel requires reasonable reliance. See Hester v. Williams, 117 Wis. 2d 634, 645, 
 
3 See Elliott v. Gen. Cas. Co. of Wisconsin, 2011 WI App 155, ¶ 13, 337 Wis. 2d 737, 807 N.W.2d 
33 (nonprecedential) (applying five-element test from State ex rel. Susedik v. Knutson , 52 Wis. 
2d 593, 596 –97, 191 N.W.2d 23 (1971), that requires inequitable conduct and reasonable 
reliance, among other things ); Wieting Funeral Home of Chilton, Inc. v. Meridian Mut. Ins. Co ., 
2004 WI App 218, ¶  23, 277 Wis. 2d 274, 288– 89, 690 N.W.2d 442, 449 (“The test of 
whether a party should be estopped from asserting the statute of limitations is whether the 
conduct and representations of the party against whom estoppel is sought were so unfair and 
misleading as to outbalance the public’s interest in setting a limitation on bringing actions.”); 
Johnson v. Johnson , 179 Wis. 2d 574, 582, 508 N.W.2d 19, 21–22 (Ct. App. 1993) (“[T]he 
elements necessary to apply equitable estoppel include fraud or inequitable conduct by the 
party asserting the statute of limitations and that the aggrieved party failed to commence an 
action within the statutory period because of reliance on the wrongful conduct .”); Heezen v. 
Hartland Cicero Mut. Ins. Co., 63 Wis. 2d 449, 453, 217 N.W.2d 272, 274–75 (1974) (“[T]he 
insurer may be estopped [from asserting a statute of limitations defense] when he wrongfully 
or unjustifiably withholds the policy of insurance from the insured.”); Dishno v. Home Mut. Ins. 
Co., 256 Wis. 448, 452–53, 41 N.W.2d 375, 377 (1950)(“[I]f, by any act or omission of the 
responsible officers and agents of the defendant, the plaintiff should be induced to suspend 
action in the premises, for a given time, such time should not be deemed a part of the twelve 
months to which his right of action is limited by the original contract .”); Fischer v. Harmony 
Town Ins. Co., 249 Wis. 438, 443, 24 N.W.2d 887, 889 (1946) (“[I]f the insurance company, 
by its acts, induces the insured to suspend his proceedings, and delay action on the policy, the 
time elapsing during such delay so caused should not be reckoned as a part of the time limited 
for the bringing of the action.”). 
 
 
 
 
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345 N.W.2d 426, 431 (1984); Kornreich v. Town of Cedarburg, 2023 WI App 46, ¶ 9, 409 Wis. 
2d 118, 124, 996 N.W.2d 72, 75; Wosinski v. Advance Cast Stone Co., 2017 WI App 51, ¶ 40, 
377 Wis. 2d 596, 631–32, 901 N.W.2d 797, 815. The burden is on Sandstone to show that 
equitable estoppel should apply. Wieting Funeral Home of Chilton, Inc. v. Meridian Mut. Ins. Co., 
2004 WI App 218, ¶ 23, 277 Wis. 2d 274, 288–89, 690 N.W.2d 442, 449; Johnson v. Johnson, 
179 Wis. 2d 574, 583, 508 N.W.2d 19, 22 (Ct. App. 1993). 
In this case, Sandstone’s position is that estoppel should apply because Erie “continued 
to investigate, evaluate, and adjust Sandstone’s claim through and beyond the contractual 
limitations deadline,” and that Erie’s “conduct would lead a reasonable insured to believe that 
the claim remained in the adjustment process and that litigation was neither necessary nor 
appropriate.” Dkt. 35 at 6. 
An initial problem with Sandstone’s position is that Sandstone does not cite evidence 
that it did rely on anything Erie did or said when choosing to wait until after the deadline to 
file this lawsuit. As already discussed, reliance is an element of an estoppel claim. So that failure 
alone is fatal to Sandstone’s estoppel argument. See Schwetz v. Emps. Ins. of Wausau, 126 Wis. 
2d 32, 38 –39, 374 N.W.2d 241, 244 (Ct. App. 1985), overruled on other grounds by Colby v. 
Columbia Cnty., 202 Wis. 2d 342, 550 N.W.2d  124 (1996). But even if Sandstone rel ied on 
Erie’s conduct or statements, no reasonable jury could find that Sandstone’s reliance was 
reasonable or that Erie engaged in inequitable conduct. 
Sandstone did not cite any cases in which Wisconsin courts considered whether and, if 
so, when an insurer’s ongoing investigation provides grounds for estoppel. But Erie cited several 
cases and the court uncovered others in its own research, which are cited in footnote three.  
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Erie’s best case is Johnson, 508 N.W.2d 19, and Erie cites Johnson numerous times in its 
brief. In that case, the court of appeals affirmed summary judgment for the insurer on the 
ground that the claim was untimely and rejected the insured’s estoppel argument. The insured 
relied on the following facts to try to prove estoppel: (1) when the insured expressed concern 
about running out of time to make a claim, the insurer told him that  he had “plenty of time 
to make a claim”; (2) just before the deadline for filing a claim, the insurer asked the insured 
for authorization to review his medical records; (3) after the statute of limitations had run, the 
insurer requested additional information from the insured and promised to contact him after 
completing its investigation. T he court of appeals concluded that cited  evidence did not 
“indicate that [the parties’] discussions were anything but good faith negotiations toward an 
amicable settlement,” and that “[t]here is no evidence that would indicate that [the insurer] 
strung [the insured] along and then hastily terminated negotiatio ns at the zero hour, leaving 
him insufficient time to commence an action.” Id. at 23.  
Sandstone’s best case is Dishno, in which the supreme court affirmed the lower court’s 
denial of summary judgment, rejecting the insurer’s argument that the claim should be 
dismissed as untimely. The supreme court relied on the following facts: (1) the insurer “invited 
and encouraged” the insured to continue negotiations throughout the limitations period; and 
(2) the insurer never denied the claim during the limitations period but instead “negotiat[ed] 
on solely the issue as to the amount of the loss sustained.” 41 N.W.2d 375, 376–77.
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4 Dishno frames the issue as one of “waiver” rather than estoppel, but later decisions have 
included Dishno in their discussions of estoppel precedent. See, e.g., Elliott, 2011 WI App 155, 
at ¶ 15; see also Berry v. State Farm Fire & Cas. Co., 388 F. Supp. 3d 1063, 1067–70 (E.D. Wis. 
2019). 
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There is some tension between Johnson and Dishno. Johnson states that the insured must 
show “fraudulent or inequitable conduct” and that “[t]here is nothing fraudulent or inequitable 
about engaging in settlement discussions to avoid litigation. ” Johnson, 508 N.W.2d at 23; see 
also Wieting Funeral Home, 2004 WI App 218, at ¶¶ 26-27 (rejecting estoppel argument because 
“nothing in [the insured’s]  conduct indicat [es] a lack of good faith, fraud, or inequitable 
behavior”). Dishno states that the deadline may not be enforced “if the plaintiff should be 
induced to suspend action ” by “any act or omission of the responsible officers and agents of 
the defendant,” and the court concluded that the ongoing settlement talks met that standard. 
41 N.W.2d 375, 376–77; see also Fischer, 24 N.W.2d at 889 (deadline may not be enforced “if 
the insurance company, by its acts, induces the insured to suspend his proceedings, and delay 
action on the policy”). 
 So Johnson and Wieting seem to suggest that a showing a bad faith is required  while 
Dishno and Fischer say nothing about bad faith and focus instead on inducement. Dishno and 
Fischer (decided by the supreme court)  predate by several decades both Johnson and Wieting 
(decided by the court of appeals), but neither Johnson nor Wieting acknowledge Dishno or Fischer. 
This court need not decide whether these cases can be harmonized or whether good 
faith settlement negotiations could ever provide grounds for estoppel because Sandstone’s 
estoppel argument fails even under Dishno and Fischer. Erie did not “invite[]” or “encourage[]” 
Sandstone to continue negotiating  as in Dishno  and Fischer. Rather, Erie promptly decided 
Sandstone’s claim within a few weeks and mailed Sandstone a check. Nothing happened for 
14 months until Sandstone, not Erie, hired a different adjuster. Ev en after the adjuster 
submitted a report favoring Sandstone, Erie declined to change its opinion or open 
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negotiations. It would serve no principle of equity to allow an insured to avoid a deadline by 
unilaterally seeking reconsideration long after the decision was made. 
It is true that Erie conducted a new inspection of Sandstone’s property in October 2024. 
But Sandstone points to no statement by Erie suggesting that it had changed its mind, that it 
wanted to begin settlement talks with Sandstone, or that Sandstone should not pursue 
litigation. Instead, Sandstone points to Erie’s February 27, 2025 letter in which Erie updated 
its calculation of the replacement cost value. But even then, there was no encouragement from 
Erie to continue discussions about Erie’s determination. To the contrary, the letter states that 
Erie’s investigation “was completed” and that a check was enclosed. Dkt.  37-12, at 1, 3. In 
fact, the letter warned Sandstone about the two-year deadline and informed Sandstone that it 
“should not construe any actions taken by Erie up to this point as a waiver of any rights to 
deny coverage” and that Erie was “reserv[ing] all rights available under the policy.” Id. at 3. No 
reasonable insured could construe these statements and conduct as an inducement to delay 
filing a lawsuit.  
Sandstone also relies on Erie’s May 5, 2025 letter stating that Sandstone’s “file 
remained open to consider payment of the replacement cost holdback .” Dkt. 37 -13. But 
Sandstone could not have relied on that letter because it was sent after the deadline had already 
expired in March. See Johnson, 508 N.W.2d at 22. 
 No reasonable jury could find that Erie induced Sandstone to delay bringing suit until 
after the deadline passed or that Erie engaged in some other type of misconduct that would 
make it inequitable to enforce the deadline. 
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B. Tolling 
Wisconsin courts apply equitable tolling “when a party misses a deadline due to factors 
outside the party’s control.” State ex rel. Davis v. Cir. Ct. for Dane Cnty., 2024 WI 14, ¶ 39, 411 
Wis. 2d 123, 138. This principle is most frequently invoked in prisoner litigation when the 
prisoner is unable to comply with a deadline because of delays by prison staff in sending a 
submission to the court. See State v. Zimbal , 2017 WI 59, ¶ 66, 375 Wis. 2d 643, 671, 896 
N.W.2d 327, 340; State ex rel. Nichols v. Litscher, 2001 WI 119, ¶ 32, 247 Wis. 2d 1013, 635 
N.W.2d 292. Sandstone cites no cases in which Wisconsin courts applied this common law 
doctrine to an insurance dispute. Sandstone cites Borgen v. Econ. Preferred Ins. Co., 176 Wis. 2d 
498, 504–05, 500 N.W.2d 419, 421 (Ct. App. 1993) , but that case had nothing to do with 
tolling; the court was interpreting the meaning of the limitations period in Wis. Stat. § 631.83. 
In dicta, the court stated that there was nothing “illogical” about applying a discovery rule to 
a notice-of-loss requirement. 500 N.W.2d at 423. But this case is not about notice -of-loss 
requirements, and, even if the discovery rule applied, it would not help Sandstone because 
Sandstone does not allege that the loss was hidden in this case. 
 Even if the common law doctrine of equitable tolling does apply to insurance cases,  
that standard is not met in this case.  Sandstone has not identified any conduct by Erie that 
prevented Sandstone from filing a timely claim. 
There is a statutory mechanism for tolling certain insurance claims when the parties 
conduct an “appraisal or arbitration procedure prescribed by the insurance policy or by law or 
agreed to by the parties.” Wis. Stat. § 631.83(5). But Sandstone does not contend that there 
was an appraisal or arbitration procedure that met the requirements of the statute , so the 
statute does not apply. 
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Sandstone has not shown that either estoppel or tolling bars Erie from enforcing the 
two-year deadline in the insurance policy . The court will grant Erie’s motion for partial 
summary judgment. 
ORDER 
IT IS ORDERED that defendant Erie Insurance Company’s motion for partial summary 
judgment, Dkt. 30, is GRANTED, and plaintiff Sandstone Point Condominiums Association, 
Inc.’s breach-of-contract claim is DISMISSED. The case will move forward on Sandstone’s bad 
faith claim. 
Entered June 15, 2026. 
BY THE COURT: 
 
/s/ 
________________________________________ 
JAMES D. PETERSON 
District Judge 
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