Seventh Circuit: Arguments Not Raised in Response to Summary Judgment Are Waived; Civil Plain-Error Review Remains Extraordinary

1) Introduction

This appeal arises from a church-fire insurance claim in Indiana. Crothersville Lighthouse Tabernacle Church (“Lighthouse Tabernacle”) carried a property policy with a $2.3 million limit issued by Church Mutual Insurance Company (“Church Mutual”). The policy paid actual cash value (depreciated value) as baseline coverage and promised additional replacement-cost benefits only if the insured actually repaired or replaced the property “as soon as reasonably possible after the loss or damage.”

After the June 2018 fire, the parties disputed replacement-cost estimates (notably the sanctuary ceiling). Church Mutual nevertheless paid substantial undisputed amounts, ultimately totaling nearly $1.7 million. Lighthouse Tabernacle did not begin repair or replacement and sued about two years after the loss for breach of contract and bad faith. Church Mutual moved for summary judgment on a single core theory: the church failed to satisfy the policy’s repair/replace condition for replacement-cost benefits. In opposing summary judgment, Lighthouse Tabernacle contested estimates and adjuster credibility but did not address the contractual-condition argument. The district court granted summary judgment.

On appeal—after a change in counsel—Lighthouse Tabernacle introduced a new legal theory: under two Indiana Court of Appeals decisions, the insurer’s conduct allegedly excused timely rebuilding. The Seventh Circuit’s decision is primarily about appellate preservation: whether this new theory was waived (unreviewable) or forfeited (potentially reviewable only under an exceptionally narrow civil plain-error standard).

2) Summary of the Opinion

The Seventh Circuit affirmed. It held that Lighthouse Tabernacle waived its new argument by failing to raise it in response to Church Mutual’s summary-judgment motion, where the insurer’s legal basis was the church’s noncompliance with the policy’s repair/replace condition. Waiver precluded appellate review.

The court added that even if the argument were merely forfeited, it would still not qualify for civil plain-error review, which is “rare” and available only in “extraordinary circumstances” under the standard articulated in Henry v. Hulett. The case was a “garden-variety insurance dispute,” and alleged attorney underperformance did not create exceptional circumstances; the appropriate remedy for egregious civil-lawyering errors is typically malpractice, not an appellate do-over.

3) Analysis

3.1 Precedents Cited

A. Preservation doctrines: waiver, forfeiture, and the limited availability of civil plain-error review

• Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc): The opinion relies heavily on Henry to clarify the waiver/forfeiture distinction and to state the stringent conditions for civil plain-error review: a party must show “(1) exceptional circumstances exist; (2) substantial rights are affected; and (3) a miscarriage of justice will occur if plain error review is not applied.” This standard frames the court’s alternative holding that, even absent waiver, relief would be unwarranted.
• Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17 (2017): Cited for the Supreme Court’s admonition that “waiver” and “forfeiture” are “not synonymous.” The Seventh Circuit uses Hamer to police imprecise terminology and reinforce that the doctrinal label matters because waiver bars review.
• United States v. Olano, 507 U.S. 725 (1993): Used as the canonical definition of waiver (“intentional relinquishment or abandonment of a known right”) and forfeiture (“mere failure to raise a timely argument”), and to explain that criminal plain-error review is governed by Rule 52(b)—a rule with no broad civil counterpart.
• Ricci v. Salzman, 976 F.3d 768 (7th Cir. 2020): Quoted for the proposition that “we can’t review waived issues at all,” reinforcing the opinion’s bottom-line disposition.
• Bradley v. Village of University Park, 59 F.4th 887 (7th Cir. 2023): Cited for the basic proposition that waiver occurs by failing to raise an argument in the district court, including in a timely fashion.
• Nichols v. Mich. City Plant Plan. Dep't, 755 F.3d 594 (7th Cir. 2014): Central to the outcome. It supplies the specific summary-judgment preservation rule: “The non-moving party waives any arguments … not raised in its response to the moving party's motion for summary judgment.”
• Mahran v. Advoc. Christ Med. Ctr., 12 F.4th 708 (7th Cir. 2021): Reinforces that a party opposing summary judgment must “inform the trial judge of the reasons, legal or factual” why judgment should not enter. The court uses this to show that Lighthouse Tabernacle’s estimate/credibility disputes did not address the dispositive legal condition.
• Fleishman v. Cont'l Cas. Co., 698 F.3d 598 (7th Cir. 2012) and Wheeler v. Hronopoulos, 891 F.3d 1072 (7th Cir. 2018): Cited to justify waiver doctrine’s institutional goals—preventing “two bites at the apple,” encouraging well-developed arguments in the trial court, and conserving judicial resources by avoiding appeals and remands for arguments that should have been raised earlier.
• Johnson v. Prentice, 29 F.4th 895 (7th Cir. 2022): Used for the conceptual grounding of waiver in “fair notice and the proper roles of the trial and appellate courts.”
• Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020) and United States v. Picardi, 950 F.3d 469 (7th Cir. 2020): The appellant argued waiver requires proof of a deliberate strategic decision. The court responds by noting that even a poor strategy is still a strategy; the doctrine does not require evidence counsel consciously evaluated and rejected the omitted argument.
• Soo Line R.R. v. Consol. Rail Corp., 965 F.3d 596 (7th Cir. 2020) and Builders NAB LLC v. FDIC, 922 F.3d 775 (7th Cir. 2019): These cases reject the idea that legal arguments can be withheld and then raised on appeal as “afterthoughts.” They reinforce that even “pure” legal theories must be timely presented to the district court.
• SEC v. Yang, 795 F.3d 674 (7th Cir. 2015), Deppe v. Tripp, 863 F.2d 1356 (7th Cir. 1988), and Link v. Wabash R.R., 370 U.S. 626 (1962): These authorities support the representative-litigation premise that civil parties are generally bound by counsel’s acts/omissions and may seek malpractice remedies. They also help justify why civil plain-error review should be narrower than criminal review.
• In re Under Seal, 749 F.3d 276 (4th Cir. 2014) and Walker v. Groot, 867 F.3d 799 (7th Cir. 2017): Cited to emphasize that civil plain-error review is judicially created and narrowly construed, with only limited rule-based exceptions (e.g., FED. R. CIV. P. 51(d)(2); FED. R. EVID. 103(e)).
• Jackson v. Parker, 627 F.3d 634 (7th Cir. 2010): Supports the proposition that plain-error review is “rarely applied in civil cases,” and that counsel errors alone are not “exceptional circumstances.”
• Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746 (7th Cir. 1993) and Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011): Amcast is invoked by appellant for the notion that appellate courts sometimes review unpreserved pure legal questions; the Seventh Circuit confines that impulse. Richison is used to articulate the proper appellate function—correcting errors on theories presented below, not serving as a “second-shot forum.”
• Lane v. Structural Iron Workers Loc. No. 1 Pension Tr. Fund, 74 F.4th 445 (7th Cir. 2023) and Walker v. Baldwin, 74 F.4th 878 (7th Cir. 2023): Mentioned in a cautionary footnote acknowledging some Seventh Circuit cases blur waiver and forfeiture, which this opinion seeks to disentangle.

B. Substantive insurance decisions invoked by the appellant (and distinguished by the court)

• Rockford Mutual Insurance Co. v. Pirtle, 911 N.E.2d 60 (Ind. Ct. App. 2009): Lighthouse Tabernacle invoked Pirtle to argue that ongoing disputes or insurer conduct can excuse compliance with a replacement-cost repair condition. The Seventh Circuit distinguished Pirtle on its facts: the insurer delayed an actual cash value offer until foreclosure/condemnation pressure made repairs effectively infeasible, placing the insured “in a very bad position to start any repairs.”
• Westfield National Insurance Co. v. Nakoa, 963 N.E.2d 1126 (Ind. Ct. App. 2012): Similarly distinguished: Nakoa involved an insurer that paid nothing—“not the actual cash value of the loss, not replacement cost, nothing at all”— making it “unreasonable and unrealistic” to expect reconstruction. By contrast, Church Mutual paid nearly $1.7 million.

3.2 Legal Reasoning

The court’s reasoning proceeds in a tight sequence:

1. Identify the dispositive ground in the district court: Church Mutual sought summary judgment because the policy conditioned replacement-cost payment on actual repair/replacement “as soon as reasonably possible,” which Lighthouse Tabernacle admittedly did not undertake.
2. Match the preservation rule to the procedural posture: Under Nichols v. Mich. City Plant Plan. Dep't, arguments not raised in the summary-judgment response are waived. The church’s summary-judgment opposition did not engage the condition-precedent issue at all, instead disputing estimates and adjuster credibility—issues irrelevant to whether the condition was satisfied or excused.
3. Reject “no strategy” as an escape hatch: The appellant attempted to recast the omission as mere inadvertence due to poor lawyering. The court held waiver does not require proof of a savvy or even coherent tactical decision; choosing to litigate on certain grounds and omitting others results in waiver of the omitted grounds. A losing or negligent “strategy” is still waiver for purposes of appellate review.
4. Provide an alternative holding on civil plain error: Even assuming forfeiture, Henry v. Hulett makes civil plain-error review exceptional. This case did not present extraordinary circumstances: Church Mutual paid substantial undisputed amounts, and the Indiana cases invoked were factually distinguishable, making the underlying state-law theory at least debatable rather than an obvious miscarriage of justice.
5. Channel remedy for deficient counsel: The court emphasized the civil-litigation premise from Deppe v. Tripp and Link v. Wabash R.R.: parties are bound by chosen counsel, with malpractice (not appellate plain-error correction) as the usual remedy.

3.3 Impact

Although the opinion arises from an insurance dispute, its most durable effect is procedural:

• Sharpened enforcement of summary-judgment issue preservation: The decision underscores that a party must respond to the movant’s legal theory at summary judgment—not merely dispute peripheral facts. If the motion turns on a contractual condition, the response must address enforceability, satisfaction, excuse, waiver/estoppel, or some other legal route around that condition.
• Reduced likelihood of “pure question of law” rescue in civil appeals: The court rejects any “talismanic” exception for legal questions. Litigants should assume that even strong legal authority (state or federal) must be presented in time for the district court to rule on it.
• Reinforcement of the narrowness of civil plain-error review: By treating Henry v. Hulett as controlling and emphasizing the absence of a general civil analogue to Criminal Rule 52(b), the opinion discourages attempts to reframe ordinary civil litigation errors as “plain error.”
• Practical consequences for insurance-coverage litigation: Insureds seeking replacement-cost benefits must anticipate and plead/argue condition-precedent issues early. Where rebuilding has not begun, the insured must develop a record and legal theory explaining why the condition is excused (e.g., insurer prevention, waiver, impossibility) and present it at summary judgment—or risk losing the theory forever on appeal.

4) Complex Concepts Simplified

Replacement cost vs. actual cash value

Actual cash value generally means the value of the property after depreciation (what it’s “worth” in its used condition). Replacement cost generally means what it would cost to repair or rebuild using similar materials, without subtracting depreciation. Many policies treat replacement cost as “holdback” coverage: you get actual cash value first, and you recover the rest only after you actually repair/replace.

Conditions precedent in insurance policies

A condition precedent is a contractual prerequisite: unless it occurs, the insurer’s duty to pay a certain category of benefits does not arise. Here, the policy stated Church Mutual “will not pay” replacement cost unless (1) the property is actually repaired or replaced, and (2) this is done as soon as reasonably possible after the loss.

Waiver vs. forfeiture (appellate preservation)

Forfeiture is failing to raise an argument in time. Waiver is treated as an intentional relinquishment and, in the Seventh Circuit’s civil practice, typically includes selecting some arguments to present at summary judgment while omitting others. The key consequence: waived issues are not reviewed on appeal.

Civil “plain error” review

In criminal cases, Rule 52(b) authorizes reviewing certain unpreserved errors. In civil cases, there is no broad equivalent rule. The Seventh Circuit recognizes only a very narrow, discretionary power to correct plain errors in civil appeals, reserved for “exceptional circumstances” that affect “substantial rights” and would otherwise cause a “miscarriage of justice.”

5) Conclusion