The Third Circuit affirmed the district court’s granting of summary judgment to the insurer when the insured submitted replacement cost value of the loss but did not include a determination of depreciation. Kimmel v. Massachusetts Bay Ins. Co., 2026 U.S. App. LEXIS 16569 (3d Cir. June 9, 2026).

A lightning strike downed a tree on the insured’s property, causing extensive damage to the home. The insured had a homeowner’s policy with Massachusetts Bay Insurance Company (MBIC). MBIC denied the claim, determining that much of the claimed damage already existed and that several policy exclusions otherwise barred coverage. The insured filed suit for breach of contract and bad faith.

MBIC moved for summary judgment relying on the policy’s Loss Settlement provision. It stated that MBIC “will pay no more than the actual cash value of the damage until actual repair or replacement is complete.” The parties agreed that actual cash value (ACV) meant replacement cost less depreciation. The insured obtained a repair proposal from a contractor estimating the damage would cost $361,015 to repair. The proposal did not provide an ACV figure and the report failed to depreciate the insured’s property. The insured never undertook the proposed repairs.

Relying on the policy language, MBIC argued that the insured’s failure to provide evidence of ACV meant that the insured had not provided evidence of his damages, an essential element of his contract claim. The district court agreed and granted summary judgment to MBIC. The insured appealed.

The Third Circuit noted that until the insured completed the actual repair or replacement, the policy’s Loss Settlement provision specified that he could only recover ACV. The insured never produced evidence of ACV. He offered an estimate of the cost to repair the damage to his property. Yet the proposal did not include any amount for depreciation nor otherwise attempt to furnish an ACV figure or means of deriving it. Because the insured did not provide evidence establishing an essential element of the breach of contract claim, it failed as a matter of law.

The insured argued that the policy required the policyholder to submit an ACV figure only for personal property claims, not real property claims. This argument, however, was not raised before the district court and was therefore waived.

The district court’s grant of summary judgment to MBIC was affirmed,