458 Mass. 83 (2010)
JENNIFER DiRICO & others[1]
v.
TOWN OF KINGSTON & others.[2]
No. SJC-10628.
Supreme Judicial Court of Massachusetts, Suffolk.
May 4, 2010.
September 21, 2010.
Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.
David H. Abbott (Andrew D. Berman with him) for the plaintiffs.
Jason R. Talerman for town of Kingston & another.
Howard G. Guggenheim, for Thorndike Development Corporation & others, was present but did not argue.
IRELAND, J.
We transferred this case here on our own motion *84 to determine the validity of an amendment to the defendant town of Kingston's (town's) zoning bylaw that created a "smart growth" zoning overlay district (zoning amendment) pursuant to G. L. c. 40R and its enabling regulations, 760 Code Mass. Regs. §§ 59.00 (2005). The plaintiffs, who own and reside on land abutting or near the smart growth zoning district,[3] contend that the zoning amendment is an arbitrary or unreasonable exercise of the town meeting's zoning power because the town "failed to analyze and consider adequately relevant land use planning considerations." The plaintiffs focus on a decrease in the amount of developable land comprising the smart growth zoning district on account of a change in designation of a portion of that land as a "priority habitat" (see note 11, infra) for rare species protected under the Massachusetts Endangered Species Act (MESA), G. L. c. 131A, and its implementing regulations, 321 Code Mass. Regs. §§ 10.00 (2005). Although the town should have revised its figures concerning the amount of developable land comprising the smart growth zoning district, we conclude that its failure to do so did not invalidate the zoning amendment. We therefore affirm the Land Court judge's grant of summary judgment in favor of the defendants and the judgment dismissing the complaint.
1. Statutory and regulatory framework. In 2004, the Legislature enacted legislation entitled "Smart Growth Zoning and Housing Production," which is codified at G. L. c. 40R. See St. 2004, c. 149, § 92. The stated purpose of the statute is "to encourage smart growth and increased housing production in Massachusetts." G. L. c. 40R, § 1. The statute defines "[s]mart growth" as follows:
"Smart growth is a principle of land development that emphasizes mixing land uses, increases the availability of affordable housing by creating a range of housing opportunities in neighborhoods, takes advantage of compact design, fosters distinctive and attractive communities, preserves open space, farmland, natural beauty and critical environmental areas, strengthens existing communities, provides a variety of transportation choices, makes development *85 decisions predictable, fair and cost effective and encourages community and stakeholder collaboration in development decisions."
Id. The Legislature has designated the Department of Housing and Community Development (department) as the regulatory agency charged with administering smart growth development. Id. at § 12. The department has implemented regulations concerning the smart growth program and its operation. 760 Code Mass. Regs. §§ 59.00.
To effectuate smart growth, municipalities are authorized to create so-called "smart growth zoning districts" in "eligible location[s]."[4] G. L. c. 40R, § 3. A smart growth zoning district may be adopted by any city or town as part of its zoning ordinance or bylaw in accordance with the standards set forth in G. L. c. 40A, § 5 (setting forth procedure for adoption or amendment to municipal zoning ordinance or bylaw). G. L. c. 40R, § 3. The smart growth statute requires, among other mandates, that primary residential use be allowed "as of right" in a smart growth zoning district. Id. In addition, a municipality may permit "business, commercial or other uses consistent with primary residential use" in a smart growth zoning district. Id. A comprehensive list of the minimum requirements for a smart growth zoning district appears at G. L. c. 40R, § 6 (a).
It should be understood that a smart growth zoning district is an overlay district that is "superimposed over [one] or more zoning districts in an eligible location, within which a developer may elect to either develop a project in accordance with requirements of the smart growth zoning ordinance or by-law, or develop a project in accordance with requirements of the underlying zoning district." Id. at § 2. Projects developed in accordance with the requirements of a smart growth zoning ordinance or bylaw are to be governed solely by those provisions and "without any reference to the standards or procedures of the [u]nderlying [z]oning that would otherwise be applicable to developments *86 within the same geographic area as the [d]istrict." 760 Code Mass. Regs. § 59.04(1)(1). "Without limitation," the smart growth zoning district ordinance or bylaw "shall set out the dimensional, use, parking, and other standards applicable to [p]rojects within the [smart growth zoning district] including but not limited to height limits, setbacks, lot areas, lot dimensions, unit to lot ratios, floor area ratios, lot coverage ratios, open space ratios, parking ratios, parking locations, and roadway design standards." Id. "Such provisions may change the dimensional and other standards contained in the [u]nderlying [z]oning in order to allow the densities, [a]ffordability,[[5]] mix of uses, and physical character of [p]rojects which are permitted [a]s-of-right...." Id. The ordinance or bylaw "may allow the [a]pproving [a]uthority,[[6]] through the [p]lan [r]eview process, to waive specific dimensional and other standards (other than [a]ffordability requirements) otherwise applicable to a [p]roject." Id.
In providing for smart growth zoning, G. L. c. 40R and 760 Code Mass. Regs. § 59.05 set forth a detailed procedural framework for municipalities and the department to follow. As relevant here, a municipality must first hold a public hearing on whether the provisions of a smart growth zoning ordinance or bylaw shall be adopted by the municipality. 760 Code Mass. Regs. § 59.05(1). Thereafter, a municipality submits its completed application to the department for a preliminary determination of eligibility. Id. at § 59.05(2). The information in the application shall:
"(a) identify and describe the boundaries of the proposed smart growth zoning district;
"(b) identify and describe the developable land area within the proposed smart growth zoning district;

*87 "(c) identify and describe other residential development opportunities for infill housing and the residential re-use of existing buildings and underutilized buildings within already developed areas;
"(d) include a comprehensive housing plan, as set forth in section 8;
"(e) include a copy of the proposed smart growth district ordinance or by-law;
"(f) by narrative and exhibits, establish the elements set forth in section 6 [minimum requirements for smart growth zoning district]."
G. L. c. 40R, § 5. See 760 Code Mass. Regs. § 59.03.
Concerning the identification of the developable land area within the proposed smart growth zoning district, the smart growth statute defines "[d]evelopable land area" as "that area within an approved smart growth zoning district that can be feasibly developed into residential or mixed use development determined in accordance with regulations of the department." G. L. c. 40R, § 2. The statute goes on to specify what is excluded from developable land area. "Developable land area shall not include ... land area that is already substantially developed [or] areas exceeding [one-half] acre of contiguous land that are unsuitable for development because of topographic features or for environmental reasons, such as wetlands." Id. Under the department's regulations, developable land area excludes "[s]ubstantially [d]eveloped [l]and"[7] and "areas exceeding *88 [one-half] acre of contiguous land that are ... rare species habitat designated under [F]ederal or [S]tate law." 760 Code Mass. Regs. § 59.02. The component of developable land area is significant in determining the minimum as-of-right density requirements (housing units) in a smart growth zoning district, see id. at § 59.04(1)(d),[8] and correspondingly, the amount of certain financial incentives awarded to stimulate smart growth. See G. L. c. 40R, § 9; 760 Code Mass. Regs. § 59.06.[9]
On receipt of a municipality's complete application to create a smart growth zoning district, the department "shall make a preliminary determination, before the [m]unicipality votes on its *89 proposed [s]mart [g]rowth [z]oning, whether the application satisfies the approval requirements set forth in [760 Code Mass. Regs. § 59.04(1), concerning mandatory requirements for smart growth zoning]." Id. at § 59.05(2). See G. L. c. 40R, § 4 (a). The department may approve an application, issuing a "[l]etter of [e]ligibility," with or without conditions, or may deny it. 760 Code Mass. Regs. § 59.05(2)(c). See G. L. c. 40R, § 4 (a).
Once a municipality obtains a letter of eligibility from the department, it may vote on the proposed zoning ordinance or bylaw set forth in its application. 760 Code Mass. Regs. § 59.05(3). A municipality "shall make any changes to its [smart growth zoning ordinance or bylaw] and other elements of the application as may have been required by the [d]epartment." Id. The zoning adoption process is the same as under G. L. c. 40A, with the exception that "the local vote [must] occur[] within three years of the date of the [l]etter of [e]ligibility," 760 Code Mass. Regs. § 59.05(3). See G. L. c. 40R, § 3.
Following the local adoption of a zoning ordinance or bylaw for a smart growth zoning district, a municipality must apply to the department for final approval of the smart growth zoning ordinance or bylaw. G. L. c. 40R, § 4 (b). The municipality "shall submit to the [d]epartment proof of such adoption [of the smart growth zoning ordinance or bylaw]." 760 Code Mass. Regs. § 59.05(4). If the department has required any amendments to the smart growth zoning ordinance or bylaw, the municipality's application, or "any other related matter," the municipality's submission "shall confirm that such amendment(s) have been made and incorporated." Id. In addition, if there has been any other change to the smart growth zoning ordinance or bylaw, or to "any other element of the original application, other than changes that the [d]epartment has required in a conditional [l]etter of [e]ligibility, then the [d]epartment may treat the submission as an amendment to the application, and it shall notify the [m]unicipality of its decision to do so in writing." Id. "In such event the [d]epartment shall confirm its final approval within [sixty] days of receipt of the submission, provided that the amended application satisfies all of the approval criteria set forth in 760 [Code Mass. Regs. §] 59.04(1)." 760 Code Mass. Regs. § 59.05(4). Once a municipality has received final *90 approval from the department, it becomes eligible to receive the zoning incentive payment [see note 9, supra] and the letter of approval "shall specify ... the number of [i]ncentive [u]nits and the amount of the [z]oning [i]ncentive [p]ayment that shall be made." Id. at § 59.05(4).
The department's oversight does not end with the issuance of its final approval. Every municipality with an approved smart growth zoning district (or which has filed an application for a proposed smart growth zoning district within the fiscal year) must furnish an annual update, on or before July 31 of each year, to the department. Id. at § 59.07(1). The annual update "shall contain," among other requirements, "[a] list of all [a]pproved and currently proposed [smart growth zoning districts] within the [m]unicipality, with a tabulation for each [smart growth zoning district] of the total land area, the [d]evelopable [l]and area and the [s]ubstantially [d]eveloped [l]and area, the number of [i]ncentive [u]nits, and the amount of [d]evelopable and [s]ubstantially [d]eveloped [l]and zoned at various allowable [a]s-of-right residential densities under the [smart growth zoning ordinance or bylaw]." Id. at § 59.07(1)(a).
"On or before October 1 of each year after the year of approval of a [smart growth zoning] district by the department, the department shall send a smart growth zoning district certificate of compliance to each city or town with an approved district." G. L. c. 40R, § 7 (a). To receive the certificate, a municipality "shall verify within the time specified by the department: (1) that the city or town has adopted an approved smart growth zoning district; (2) that the certification has not been revoked by the department; (3) that the district is being developed in a manner that reasonably complies with the minimum requirements set forth in section 6 for housing density and affordability; [and] (4) that the approving authority has not unreasonably denied plans for projects...." Id. A municipality also must timely submit its annual update. 760 Code Mass. Regs. § 59.07(3). If the department is unable to certify compliance, it shall issue a letter of noncompliance, giving a municipality sixty days to submit proof of compliance or the commencement of remedial measures. Id. If this showing is not satisfactory, the department "shall hold a public hearing subject to chapter 30A ... and may revoke certification." *91 G. L. c. 40R, § 7 (b). See 760 Code Mass. Regs. § 59.07(3). "Any revocation of certification or other sanctions imposed by the department shall not affect the validity of the smart growth zoning ordinance or by-law, or the application of such ordinance or by-law to land, development or proposed development within the smart growth zoning district." G. L. c. 40R, § 7. See also 760 Code Mass. Regs. § 59.07(3). Such action, however, may trigger the suspension of financial incentives to a municipality or the municipality's repayment of financial incentives to the department. 760 Code Mass. Regs. § 59.06(3)(c) and (d).
The department is required to file annual reports to the Legislature, "[n]o later than November 15th of each year." 760 Code Mass. Regs. § 59.07(4). See G. L. c. 40R, § 12. The report, among other mandates, must list the municipalities that have approved smart growth zoning districts or have submitted applications for such a district within the prior year. 760 Code Mass. Regs. § 59.07(4). The report also must set forth the aggregate size of all approved and proposed smart growth zoning districts, including specifying the aggregate total land area, developable land area, and substantially developed land area. Id. The department's report shall contain information concerning the zoning incentive and density bonus payments. Id. Reports are to be made "available to the general public." Id.
2. Background. The material undisputed facts are as follows. The town is a coastal community in southeastern Massachusetts that, in recent years, has experienced unprecedented development pressures. From 1980 to 2000, the town's population grew by sixty per cent, with the majority of development taking the form of single-family residential homes on large lots. In February, 2006, the town was approached by the defendant Thorndike Development Corporation (Thorndike), about the possibility of adopting a zoning amendment that would create a smart growth zoning district on property located less than one-half mile from the Kingston commuter rail station (property). The property consists of 109 acres and includes an excavated sand pit. Thorndike had acquired an option to purchase the property from its owners, the defendants Mary O'Donnell and Robert Moakley, trustees of the O'Donnell Family Realty Trust, and was interested in developing a smart growth development to be *92 called 1021 Kingston's Place (Kingston's Place). Kingston's Place would consist of up to 730 new residential units, 50,000 square feet of retail space, and 250,000 square feet of commercial space.
In February, 2006, the town requested and received a preliminary determination from the department that the property would be in an "eligible location" for smart growth development. In June, 2006, the town submitted its application to the department for its proposed smart growth project. Included in the town's application, as required, was a certification of the amount of developable land in the proposed smart growth zoning district. Specifically, the town's application certified that the proposed smart growth zoning district consisted of 109 acres, of which 69.6 acres (or 63.9 per cent of the district) consisted of developable land. The application also identified that the proposed district included 11.2 acres (or 10.3 per cent) of environmentally constrained land, none of which, at the time, included rare species habitat designated under State or Federal law.
Effective October 1, 2006, the Natural Heritage and Endangered Species Program,[10] issued the twelfth edition of its Natural Heritage Atlas (atlas). Pursuant to the atlas, a substantial portion of the land comprising the proposed Kingston's Place development, possibly as much as fifty per cent, was designated as a priority habitat of State-listed rare species (including the eastern box turtle)[11] and an estimated habitat of rare wildlife.[12]
The town became aware of the atlas designations in November *93 of 2006. Subsequently, the town did not revise its figures contained in its application to the department concerning the developable land area, environmentally constrained land, or total future zoned incentive units in the proposed smart growth zoning district.
On April 4, 2007, the department issued a letter of eligibility to the town, approving the town's application for the creation of the smart growth zoning district and the underlying zoning amendment, with certain conditions. As relevant here, as part of one of the conditions, the department required annual updates to be filed with the department "[o]n or before July 31 of each year . . . containing ... a table indicating the total land area, the [d]evelopable [l]and [a]rea, the [s]ubstantially [d]eveloped [l]and [a]rea, the number of [i]ncentive [u]nits, the amount of [d]evelopable and [s]ubstantially [d]eveloped [l]and zoned for each type of residential use allowed under the [smart growth zoning ordinance or bylaw] for the [smart growth zoning district]."
On April 11, 2007, the zoning amendment was adopted by a vote of the Kingston town meeting. The department granted its final approval of the zoning amendment on August 28, 2007. The town received a zoning incentive payment in the amount of $600,000. In its first annual update to the department, dated July 30, 2008, the town did not revise its figures relating to the developable land area, environmentally constrained land, or total future zoned incentive units.[13]
*94 On November 14, 2007, the plaintiffs filed their original complaint in the Land Court seeking, pursuant to G. L. c. 240, § 14A,[14] to have the zoning amendment invalidated. After various proceedings, the remaining defendants (see note 2, supra) moved for summary judgment on count three of the complaint (the only remaining count), which alleges that the zoning amendment is invalid as an arbitrary and unreasonable exercise of zoning power because the town "failed to analyze and consider adequately relevant land use planning considerations." Specifically, as relevant to this appeal,[15] the plaintiffs claimed that the town failed adequately to consider, and should have informed the department of, the effect of the change in the priority habitat designation to the calculation of developable land for the proposed Kingston's Place development.
In her summary judgment decision, the Land Court judge acknowledged that the town's calculation of the amount of developable land, for summary judgment purposes, was incorrect at the time the department issued its letter of eligibility on April 4, 2007, and when the zoning amendment was adopted by the town meeting on April 11, 2007 (because the atlas containing the priority habitat designation became effective on October 1, 2006). She concluded, however, that the error did not invalidate the zoning amendment. The judge explained that the town's duty to submit its first annual update had not yet arisen when *95 the zoning amendment was adopted by the town, and that thereafter, the motives of the town for failing to update the developable land component of its application, could not be considered by the court. In addition, she did not otherwise find a duty imposed by the smart growth statute or regulations on the town to supplement its application on learning of the rare species priority habitat designation. The judge pointed out that the department's approval is not "the final step for Thorndike in completing its proposed development," and that "many permits [are] still required before Thorndike can begin its project, including permitting processes through which the specific question of impact on endangered species will be vetted." For these reasons, the judge concluded that the plaintiffs had not and could not meet their burden of proving facts that compel a conclusion that the validity of the zoning amendment "is not even fairly debatable," Crall v. Leominster, 362 Mass. 95, 103 (1972). The judge granted the defendants' motion for summary judgment and entered a judgment dismissing the plaintiffs' complaint.
3. Discussion. Smart growth zoning districts must be adopted in accordance with G. L. c. 40A, § 5. G. L. c. 40R, § 3. Whether a smart growth zoning ordinance or bylaw is valid accordingly rests on the settled principles that pertain to zoning ordinances or bylaws enacted under G. L. c. 40A. Under these standards, "[t]he enactment of a zoning bylaw by the voters at town meeting is not only the exercise of an independent police power, it is also a legislative act." Durand v. IDC Bellingham, LLC, 440 Mass. 45, 50 (2003) (Durand). See Opinion of the Justices, 358 Mass. 838, 840 (1971). Consequently, a strong presumption of validity is to be afforded to the challenged bylaw or ordinance. Durand, supra at 51. The presumption "will not normally be undone unless the plaintiff can demonstrate `by a preponderance of the evidence that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety ... or general welfare.'" Id., quoting Johnson v. Edgartown, 425 Mass. 117, 121 (1997). "If the reasonableness of a zoning bylaw is even `fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained.'" Durand, supra, quoting Crall v. Leominster, supra at 101. "Such an analysis is not affected by consideration of the *96 various possible motives that may have inspired legislative action." Durand, supra, and cases cited.
As an initial matter, the term "developable land" expressly excludes "areas exceeding [one-half] acre of contiguous land that are . . . rare species habitat designated under [F]ederal or [S]tate law." 760 Code Mass. Regs. § 59.02. Although a developer may challenge a priority habitat designation under State law, see 321 Code Mass. Regs. § 10.25 (2005), that process has no bearing on the definition of the term "developable land" under the smart growth zoning statute. Thus, for summary judgment purposes, the effect of the atlas designation in this case was significantly to decrease the amount of developable land comprising the proposed smart growth zoning district.
There is no question that the duty of a municipality to identify correctly the amount of developable land in a proposed smart growth zoning district takes on great significance under the statutory and regulatory scheme. As has been mentioned, this component affects the permissible density of a smart growth project, as well as the amount of financial incentives to be given a municipality from State funds. Consequently, throughout the lengthy process to create a smart growth zoning district, information concerning the amount of developable land in a proposed or approved smart growth zoning district, when required, should be, to the best of a municipality's ability, current and correct as of the date of a submission. To conclude otherwise, would render the various statutory and regulatory obligations after the submission of the original application superfluous. We also note the absence of any express requirement to use the figure (concerning the amount of developable land) set forth in the original application in submissions following the original application.
When originally submitted on June, 2006, the town's application, regarding the amount of developable land in the proposed smart growth zoning district, was accurate. Like the Land Court judge, we find no statutory or regulatory mandate imposed on the town to revise its application (concerning the amount of developable land) prior to the department's issuance of a letter of eligibility under 760 Code Mass. Regs. § 59.05(2)(c). The same, however, cannot be said of the town's obligations in connection *97 with seeking final approval for the smart growth zoning district from the department. Pursuant to 760 Code Mass. Regs. § 59.05(4), after a municipality has adopted a smart growth zoning ordinance or bylaw, it is required to notify the department of "all differences between the proposed [smart growth zoning ordinance or bylaw] and the [smart growth zoning ordinance or bylaw] as adopted locally." In addition, a municipality "shall identify" in its submission, "any other changes to the original application." Id. These identification obligations allow the department, if it chooses, to "treat the submission as an amendment to the application," which must satisfy "all of the approval criteria set forth in [760 Code Mass. Regs. § 59.04(1) (pertaining to mandatory requirements for smart growth zoning district)]." 760 Code Mass. Regs. § 59.05(4). We agree with the plaintiffs that this broad regulatory mandate obligated the town to revise its figures concerning the project's developable land area in its submission seeking the department's final approval of its smart growth zoning district. The fact that the town did not on its own cause the figure concerning the amount of developable land to be altered does not matter. When the town learned of an event (the atlas designation) that rendered information in its original application (concerning the amount of developable land) incorrect, a change was necessitated and the town, as the applicant, was obligated to bring that change to the department's attention in its submission seeking the department's final approval. Should the change to the original application be insignificant, the department retains the discretion to go forward and need not treat every change as an amendment. However, that determination is one for the department, and not for the town, to make.
We also agree with the plaintiffs and the Land Court judge that the town, in its annual updates, is obligated to set forth the current figures concerning the amount of developable land in the smart growth zoning district. See 760 Code Mass. Regs. § 59.07(1)(a) (municipality with smart growth zoning district "shall file" annual update with department by July 31 each year that "shall contain ... the [d]evelopable [l]and area"). Moreover, although the town's obligation to file its first regulatory annual update arose after the department's final approval *98 on August 28, 2007, of the smart growth zoning district, in its April 4, 2007, letter of eligibility, the department specifically required as one of its conditions that the town file annual updates "[o]n or before July 31 of each year ... containing ... a table indicating . . . the [d]evelopable [l]and [a]rea...." This condition imposed the duty on the town to file an annual update on or before July 31 of 2007 that contained correct figures as of that date concerning the amount of developable land. Current figures on the developable land area were necessary because duplication of the figures contained in the original application would serve no purpose. For example, inaccurate figures would not assist the department in determining the proper density and corresponding amount of financial incentives to be awarded to the town.
Although we conclude that the town failed to revise its figures concerning the developable land area in accordance with the duties discussed above, we conclude that these omissions are not a basis to invalidate the zoning amendment itself. As relevant to the development of Kingston's Place, the amount of developable land bears on the number of units to be developed and the amount of financial incentives to be paid to the town. When a smart growth project is not being "developed in a manner that reasonably complies with the minimum requirements set forth ... for housing density and affordability," G. L. c. 40R, § 7 (a) (3), because a decrease in the amount of developable land has rendered the density and affordability figures inaccurate, or a town fails to submit its regulatory annual updates, see 760 Code Mass. Regs. § 59.07(3), the department may seek, as recourse, to revoke its certification of the smart growth zoning district. G. L. c. 40R, § 7 (b). See 760 Code Mass. Regs. § 59.07(3). Significantly, a certificate of revocation "shall not affect the validity of the smart growth zoning ordinance or by-law." G. L. c. 40R, § 7 (b). See 760 Code Mass. Regs. § 59.07(3). Thus, the town's omissions do not invalidate the zoning amendment. Rather, the consequence is one of a financial nature, triggering the suspension or repayment of financial incentives awarded to a municipality. See 760 Code Mass. Regs. § 59.06(3)(c) and (d).
Our conclusion does not undermine the purpose of G. L. *99 c. 40R to "preserve[] ... critical environmental areas," G. L. c. 40R, § 1. The zoning amendment creates a smart growth zoning bylaw authorizing a smart growth zoning district in the town. The record demonstrates that the town faced unprecedented development and had a pressing need for additional housing. Thus, the zoning amendment, regardless of how the exact development turns out, served a valid public purpose as well as one of the purposes of the smart growth zoning statute  to create additional housing. The plaintiffs seem to overlook that the zoning amendment is just one component in a lengthy application and approval process. Significantly, the zoning amendment does not function as a permit to develop the land, as relevant here, in derogation of MESA or the Wetlands Protection Act, G. L. c. 131, § 40. As noted by the town, a designation of land as a priority habitat for rare species does not preclude development. To the contrary, the priority habitat designation change serves to impose an additional layer of permitting on the ultimate development in the smart growth zoning district. See 321 Code Mass. Regs. §§ 10.18-10.23 (2005). Specifically, Thorndike will need to apply for a conservation and management permit to build in the designated area and satisfy the requirements of 321 Code Mass. Regs. § 10.23, which are designed to protect the impacted State-listed species.
For these reasons, we agree with the Land Court judge's determinations that the plaintiffs have not proved "facts which compel a conclusion that the question [of the validity of the zoning amendment] is not even fairly debatable," Crall v. Leominster, 362 Mass. 95, 103 (1972), and that the zoning amendment is valid. The judge was correct to grant summary judgment to the defendants and to direct entry of a judgment dismissing the complaint.
Judgment affirmed.
NOTES
[1]  Helen K. Gavin, and Mildred M. Leonardi.
[2]  Mary O'Donnell and Robert Moakley, trustees of the O'Donnell Family Realty Trust; and Thorndike Development Corporation. Prior to the summary judgment proceedings that are the subject of this appeal, a Land Court judge dismissed the complaint against the building inspector and zoning enforcement officer.
[3]  There is no issue of standing before us.
[4]  The smart growth statute defines "[e]ligible locations" as "(1) areas near transit stations . . .; (2) areas of concentrated development ...; or (3) areas that by virtue of their infrastructure, transportation access, existing underutilized facilities, and/or location make highly suitable locations for residential or mixed use smart growth zoning districts." G. L. c. 40R, § 2. See 760 Code Mass. Regs. § 59.04(1)(a) (2005).
[5]  One of the minimum requirements for a smart growth zoning district is that "not less than [twenty] per cent of the residential units constructed in projects of more than [twelve] units ... be affordable, as defined in section [two]." G. L. c. 40R, § 6 (a) (4). See id. at § 2 (defining "[a]ffordable housing").
[6]  An "[a]pproving authority" is "a unit of municipal government designated by the city or town to review projects and issue approvals [for smart growth development projects]." G. L. c. 40R, § 2. See 760 Code Mass. Regs. § 59.02 (2005).
[7]  "Substantially [d]eveloped [l]and" refers to "land within a [d]istrict that is currently used for commercial, industrial, institutional, or governmental use, or for residential use consistent with or exceeding the densities allowable under the [u]nderlying [z]oning, and which does not qualify as [u]nderutilized land...." 760 Code Mass. Regs. § 59.02. "Underutilized [l]and" "means [d]evelopable [l]and within a [d]istrict that would otherwise qualify as [s]ubstantially [d]eveloped [l]and, but which contains land, buildings, and/or structures that are currently underutilized and may potentially be developed, recycled, or converted into residential or [m]ixed-use [d]evelopment. Part or all of a parcel of land shall be considered [u]nderutilized if it is no longer necessary to support the current use, based on factors including but not limited to current and projected employment levels, vacancy rates, and parking demand." Id.
[8]  The smart growth zoning ordinance or bylaw "shall provide for any one or more of the following minimum allowable [a]s-of-right density requirements, as applicable . . .

"1. allowing a density of at least eight units per acre for [d]evelopable [l]and zoned for single-family residential use;
"2. allowing a density of at least [twelve] units per acre for [d]evelopable [l]and zoned for two-and/or three-family residential use; or
"3. allowing a density of at least [twenty] units per acre for [d]evelopable [l]and zoned for multi-family residential use."
760 Code Mass. Regs. § 59.04(1)(d). The zoning may provide for different subdistricts within the smart growth zoning district, with different allowable uses and densities in each subdistrict, so long as each subdistrict satisfies the minimum allowable residential density requirements. See id.
[9]  To encourage smart growth development, the Legislature has established three types of financial incentives for municipalities creating smart growth zoning districts in accordance with statutory and regulatory requirements. See G. L. c. 40R, § 9. The incentives are tied to meeting certain procedural benchmarks. "Within [ten] days of confirmation of approval by the department" that a municipality has adopted an eligible smart growth zoning district, the municipality receives a one-time "zoning incentive payment" that correlates with the number of units of new construction allowed in the smart growth zoning district and "consistent with the [municipality's] comprehensive housing plan." Id. at § 9 (a). In addition, municipalities are eligible for a "density bonus payment" in the amount of $3,000 for each housing unit of new construction that is created in the smart growth zoning district, payable within ten days of submission of proof that a building permit for the unit has issued. Id. at § 9 (b). The last incentive requires that the Executive Office of Environmental Affairs, the Executive Office of Transportation, the Department of Administration and Finance, and the department, when awarding funds, use a discretionary funding methodology that "favors" municipalities having approved smart growth zoning districts. Id. at § 9 (c). See 760 Code Mass. Regs. § 59.06.
[10]  The Natural Heritage and Endangered Species Program is "the program within the Division of Fisheries and Wildlife responsible for the inventory, research, and protection of rare plant and animal species and the maintenance of computerized and manual records of rare species locality information." 321 Code Mass. Regs. § 10.02 (2005).
[11]  A "[p]riority [h]abitat" is "the geographic extent of [h]abitat for State-listed [s]pecies as delineated by the [division of fisheries and wildlife] pursuant to [321 Code Mass. Regs. § 10.12 (2005)]. 321 Code Mass. Regs. § 10.02 (2005). Priority habitats "are delineated based on records of State-listed [s]pecies observed within the [twenty-five] years prior to delineation and contained in the [d]ivisions's [Natural Heritage and Endangered Species Program's] database." Id. "State-listed [s]pecies" refers to "any species on the [S]tate list." Id. The "State-list" "means the Massachusetts list of [e]ndangered, [t]hreatened, and [s]pecial [c]oncern species found at [321 Code Mass. Regs. § 10.90 (2008)]." 321 Code Mass. Regs. § 10.02. Generally, the term "[h]abitat" is defined as "an area which, due to its physical or biological features, protects or provides important elements for the growth and survival of plants or animals such as food, shelter, or living space, and includes without limitation, breeding, feeding, resting, migratory, or overwintering areas. Physical or biological features include, but are not limited to: structure and composition of the vegetation; faunal community; soils; water chemistry and quality; and geologic, hydrologic, and microclimatic factors." Id.
[12]  According to the plaintiffs' expert, a certified professional wetland scientist and consultant, "[e]stimated [h]abitats" under the Wetlands Protection Act, G. L. c. 131, § 40, and its implementing regulations, 310 Code Mass. Regs. § 10.59 (2005), "are a subset of [p]riority [h]abitats that does not include those areas delineated for rare plants or for rare wildlife with strictly upland habitat requirements. Estimated [h]abitats are based on documented occurrences of rare wetlands wildlife observed within the last [twenty-five] years."
[13]  The summary judgment materials containing this information were filed in December, 2008. The record does not contain any information concerning the content of later annual updates. We do not examine materials that were not before the motion judge.
[14]  General Laws c. 240, § 14A, authorizes "[t]he owner of a freehold estate in possession in land [to] bring a petition in the land court against a city or town wherein such land is situated ... for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A ... which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land... or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land...."
[15]  In their complaint, the plaintiffs averred that the town "failed to analyze and consider adequately relevant land use planning considerations including, but not limited to, traffic impacts, the character of the neighborhood, the prevention of blight and pollution of the environment, and the encouragement of the most appropriate use of land throughout the town." The defendants challenged this claim in their summary judgment motion, and based on the voluminous summary judgment record, the Land Court judge agreed with the defendants that the plaintiffs could not sustain their burden of proof on the claim. The plaintiffs do not appeal from this aspect of her decision.


80 F.Supp.2d 948 (2000)
Mahendra D. PATEL and Nila Patel, Plaintiffs,
v.
UNITED FIRE & CASUALTY COMPANY and Commercial Union Midwest Insurance Company, Defendants.
No. 1:98:CV-0323.
United States District Court, N.D. Indiana, Fort Wayne Division.
January 25, 2000.
*949 *950 John F. Lyons, Barrett and McNagny, Fort Wayne, IN, for John F. Lyons, mediator.
Jack E. Roebel, Roebel and Associates, Fort Wayne, IN, Leonard E. Eilbacher, Eilbacher Scott Inc., Fort Wayne, IN for Mahendra D. Patel, plaintiff.
Robert T. Keen, Jr., Calvert S. Miller, Miller Carson Boxberger and Murphy, Fort Wayne, IN, for United Fire & Casualty Company, defendant.
John S. Beeman, Jeffrey R. Oberlies, Leeuw and Doyle, Indianapolis, IN, Patricia J. Pikel, Swift & Finlayson, Fort Wayne, IN, for Commercial Union Midwest Insurance Company, defendant.

MEMORANDUM OF DECISION AND ORDER
WILLIAM C. LEE, Chief Judge.
After their restaurant was destroyed in a fire, Plaintiffs, Mahendra D. Patel and Nila Patel ("the Patels") claimed insurance coverage through the two defendants, United Fire and Casualty Company ("United Fire") and Commercial Union Midwest Insurance Company ("Commercial Union"). When coverage was denied from both sources, the Patels brought this diversity action alleging that United Fire and Commercial Union had each breached their insurance contracts and denied them coverage in bad faith. On August 16, 1999, Commercial Union was dismissed from this case and United Fire remains as the sole defendant.
Before the Court are numerous motions including United Fire's Motions for Partial Summary Judgment, filed on September 1, 1999 and October 15, 1999; Plaintiffs' Motion to Reconsider this court's August 27, 1999 Order; and Plaintiffs' Motion to Certify Questions of State Law, both filed on September 13, 1999. These motions, for the most part, relate to the Patels' claims for emotional damages, consequential damages (such as lost profits), and attorney's fees resulting from United Fire's conduct. In addition to these motions, on January 3, 2000, United Fire filed Motion to Strike portions of the Affidavit of Mahendra Patel. Following this barrage of motions, this court held a status conference on January 12, 2000 and directed United Fire to file a motion in limine, to the extent that it asserted Patel was not a competent witness to testify about his own lost profit damages Given this instruction, the court informed the parties that it would enter an order on all pending motions save United Fire's Motion for Partial Summary Judgment relating to lost profits. This order addresses those pending motions.
For the reasons that follow, the Court will DENY the Patels' Motion for Reconsideration; DENY the Patels' Motion to Certify Questions of State Law; DENY United Fire's Motion for Partial Summary Judgment relating to emotional damages, and DENY United Fire's Motion for Partial Summary Judgment relating to attorney fees. The Court shall hold under advisement United Fire's Motion for Partial Summary Judgment relating to lost profits and United Fire's Motion to Strike the Affidavit of Mahendra Patel.

FACTUAL BACKGROUND
Given that the parties agree that the issues before the court are purely legal ones, only minimal background facts are necessary. The Patels are joint owners of a commercial building utilized as a motel and restaurant in Fort Wayne, Indiana.[1]*951 In the early morning of September 29, 1997, the Patels' restaurant was destroyed by fire, indisputably the result of arson. At the time of the fire, the Patels were the named insureds on a policy issued by United Fire, insuring their motel and restaurant against loss by fire. Additionally, the tenant/operator of the restaurant/motel (Steinhaus) also carried insurance on the premises through its casualty insurance carrier, Commercial Union. After an investigation by the two insurance carriers spanning the course of a year, United Fire notified Mr. Patel, via letter, that it was denying his claim because it believed he (and presumably Mrs. Patel) had intentionally set the restaurant ablaze in violation of the fraud and arson provisions of their policy. United Fire offered the Patels no factual basis for this conclusion.
Subsequently, the Patels initiated the present action wherein they sued United Fire for breach of contract and for breach of its duty of good faith and fair dealing. While this action was pending, the Fort Wayne Police Department arrested an individual on an unrelated arson charge. While in custody, this individual promptly confessed to setting the fire that destroyed the Patels' restaurant. Thereafter, in June 1999, United paid plaintiffs' claim for losses covered under the policy along with interest but refused to pay any consequential damages attributable to the delay in paying the claim or any damages for alleged bad faith.
In this lawsuit, the Patels seek damages for breach of the insurance contract, and for United Fire's alleged bad faith, including consequential damages, emotional damages, punitive damages, and attorney's fees.

APPLICABLE STANDARD
This court has previously articulated to the parties in this case the appropriate standard to be applied on summary judgment and need not enlarge this opinion further by reiterating it herein. See Court's August 27, 1999 Order, pp. 2-3. Cognizant of these standards and recognizing that summary judgment is only appropriate by the very terms of Rule 56(c) where there exists "no genuine issue as to any material facts and ... the moving party is entitled to judgment as a matter of law," the Court now turns to arguments advanced by the parties in the pending motions.

DISCUSSION[2]
More than seven years ago, the Indiana Supreme Court, in Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 520 (Ind.1993), recognized the special relationship between an insurer and the insured and the right of an insured to bring suit, in tort, against an insurer for breach of its duty to act in good faith and deal fairly with an insured. Since the Indiana Supreme Court's decision in Erie, much has been written about the conduct which leads to an insurer's liability for breach of this duty. See First-mark Standard Life Insurance Company v. Goss, 699 N.E.2d 689 (Ind.App.1998); Colley v. Indiana Farmers Mutual Insurance *952 Group, 691 N.E.2d 1259 (Ind.App. 1998); Johnston v. State Farm Mutual Auto. Ins., 667 N.E.2d 802 (Ind.App.1996). Indeed, this court has had recent occasion to examine the subject extensively. See Enright v. Auto-Owners Ins. Co., 2 F.Supp.2d 1072 (N.D.Ind.1998); United Capitol Ins. Co. v. Special Trucks, Inc., 918 F.Supp. 1250 (N.D.Ind.1996).[3] The issues before the court in the present case, however, do not involve whether United Fire's conduct is a breach of the duty, as this will be determined by the trier of fact. Rather, the issues presented are purely damage questions and, for purposes of these motions, the parties assume liability on the part of the insurer.
Before analyzing the particular damages sought by the plaintiffs here, the court acknowledges that both the Indiana Supreme Court, and at least one Indiana appellate panel, have expressly refused to consider the issue of what damages a plaintiff in a bad-faith insurance claim is entitled, see Erie, 622 N.E.2d at 519 ("Neither do we need to decide the precise nature and extent of damages recoverable in such an action."); Goss, 699 N.E.2d at 696 ("... [L]ike our supreme court in Erie, we leave for another day the determination of the precise nature and extent of damages recoverable in such an action."), and thus this court is left with a relatively uncharted sea within which to decide the question posed today.[4]
After the pronouncement in Erie Insurance, an insured who believes an insurance claim has been wrongly denied has two distinct legal theories available, one for breach of the insurance contract and one in tort for breach of the duty of good faith and fair dealing. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 520 (Ind.1993). In this case, the Patels invoked both and seek the following damages:
1. ... damages in the nature of loss of rents from the restaurant building which was destroyed in the subject fire, for that period of delay in the payment of the coverages, but not including the period of reconstruction of the restaurant.
2. ... loss of rental income from [Plaintiffs'] motel operation, which can be proved to have been directly caused by the delay in reconstruction of the motel. For example, plaintiffs had an agreement with the Norfolk & Western Railroad to house their transient train crews, which amounted to 8-10 rooms per night. Norfolk & Western terminated the arrangement, when the on-premises restaurant was lost by fire. Plaintiffs have been unable to restore the restaurant and the former arrangement because of the delay in the settlement of the insurance claim.
3. ... damages for the unavailability of a restaurant during the "delay" period for deprivation of the opportunity sell [sic] the motel and restaurant. At the time of the fire there were ongoing negotiations for sale of the motel and the restaurant. The loss of interest income on the profit in such a sale is readily calculable.
4. ... compensatory damages for emotional and physical stress as a result of the tortious bad-faith adjusting practices of United, including having been accused of being felons in the written denial of their fire claim, and the deprivation of the insurance proceeds.
5. ... attorneys fees
On August 27, 1999, this court, in ruling on United Fire's [First] Motion for Partial *953 Summary Judgment, denied the Patels the right to recover items # 1 through # 3 on their breach of contract claim but left open the possibility that such items would be recoverable at trial on their claim for breach of the insurer's duty of good faith and fair dealing. See August 27, 1999 Order, pp. 9-12. Plaintiffs now request reconsideration of that order and certification of that question to the Indiana Supreme Court pursuant to Ind.App.R. 15(O).[5] United Fire's motions assert that the Patels cannot recover emotional damages, consequential damages, or attorney's fees even if they succeed on their bad faith claim. The court shall first address the plaintiffs' motions, followed by the remaining two motions for partial summary judgment.

1. Plaintiffs' Motion to Reconsider and/or Certify Questions of State Law

"Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (citing In Re Oil Spill, 794 F.Supp. 261, 267 (N.D.Ill.1992)). Indeed, the Seventh Circuit has, in no uncertain terms, described a motion to reconsider as frivolous if it contains no new evidence or arguments of law explaining why the judge should change the original order. See Magnus Electronics, Inc. v. Masco Corp. of Indiana, 871 F.2d 626, 629 (7th Cir. 1989) (A motion to reconsider is frivolous if it contains no new evidence or arguments of law that explain why the [Judge] should change an original order that was proper when made); Cf. Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 559 (9th Cir.1986), cert. denied, 484 U.S. 822, 108 S.Ct. 83, 98 L.Ed.2d 45 (1987) (motion to reconsider with no new evidence is frivolous if district judge previously held that old evidence was insufficient); Brown v. National Bd. of Medical Examiners, 800 F.2d 168, 173 (7th Cir.1986) (motion to reconsider sanctions that merely reproduces the original motion to produce violates Rule 11).
Although plaintiffs styled their motion as one for "reconsideration," they have presented no new evidence or legal arguments explaining why this court should reconsider its prior order relating to their entitlement to consequential damages. Instead, what plaintiffs now suggest is that this court take under advisement their motion to reconsider and certify the issue of their entitlement to consequential damages (for the breach of contract action) and emotional damages (if there is a bad faith finding) to the Indiana Supreme Court.[6] This court shall do neither.
In litigation, expediency must often yield to the rule of law and so it is with the issue of certification here. Utilizing the certification procedure in this case would, no doubt, be both useful and ideal to achieve finality for the parties, avoid a subsequent appeal to the Seventh Circuit, and avert the possibility that this court will wrongly predict the will of the Indiana Supreme Court. Indeed, "[c]ertification is an alternative to prognostication." Todd v. Societe BIC, S.A., 9 F.3d 1216, 1222 (7th Cir.1993). Certification in this case also comports with the public good in that receiving definitive answers on these issues, likely to recur with some frequency in bad faith cases, would prevent future litigation on these same matters and provide great *954 precedential value to Indiana litigants. See Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1395 (7th Cir.1992) (holding that "fact-laden and particularistic" questions are unsuitable for certification since they are unlikely to recur and "lack broad, general significance"). Unfortunately, the damage questions presented here do not meet the standards set out in Indiana's certification procedure and thus, this court must refrain from certifying them.
Under Indiana's certification procedure codified in Ind.App.R. 15(O), this court may only certify questions of law where there is no controlling Indiana Supreme Court precedent and the resolution of the question would be "determinative of the said cause." Ind.App.R. 15(O). Indiana's rule and its "determinative of the said cause" language, is derived from the Uniform Certification of Questions of Law Act of 1967 (the "Uniform Act"), adopted by Indiana in 1971.[7] While Indiana's Supreme Court has not expressly clarified the meaning of the phrase "determinative of the cause," both Indiana cases and the Seventh Circuit interpret it to mean dispositive of the case as a whole. See In re Sandy Ridge Oil Co., Inc., 510 N.E.2d 667, 668 (Ind.1987) ("This cause comes to us as a certified question ... pursuant to Appellate Rule 15(O) which allows certification of a question of Indiana law to this Court when the question is determinative of the case and there is no clear controlling Indiana Supreme Court precedent."); Shirley v. Russell, 69 F.3d 839, 844 (7th Cir.1995) ("Certification is appropriate only when the question of state law will control the outcome of the case."); Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 509 (7th Cir.1998) ("Moreover, an interpretation of the statute by Indiana's highest court will be outcome determinative."); LTV Steel Co., Inc. v. Northwest Engineering & Const., Inc., 41 F.3d 332, 338 (7th Cir.1994) ("Even if the Indiana Supreme Court were to answer LTV's proposed question, it would not be dispositive in this case ..."); see also White v. Edgar, 320 A.2d 668, 677 (Me.1974) ("`Determinative of the cause' is more inclusive than `determinative of the federal merits of the cause.' It encompasses any disposition by which the federal cause is terminated, thus to be `determined.'").[8]
Plaintiffs concede that none of the damage questions at issue are potentially dispositive of the entire case. However, the Patels do raise the point that absent the ability to seek consequential damages for breach of contract they have no damages to support a breach of contract claim and *955 thus, the issue of consequential damages is effectively dispositive of that particular claim. As a result, they urge this court to certify, at a minimum, that question.
Perhaps this argument would have carried more persuasive force had it been made prior to this court's ruling on the issue of consequential damages. Certification is disfavored where the court has previously decided the issue or has already tried the case. See Perkins v. Clark Equipment Co., 823 F.2d 207, 210 (8th Cir.1987) ("Once a question is submitted for decision in the district court, the parties should be bound by the outcome unless other grounds for reversal are present. Only in limited circumstances should certification be granted after a case has been decided."). Moreover, even accepting the Patels' argument that this court's prior ruling forecloses their contract claim, the court remains confined by the rule's language, which anticipates, at the very least, that the question be potentially dispositive of the case.[9]
In concluding the discussion of this issue, the court is mindful of the body of authorities relating to certification which hold that, "[T]he court should be slow to honor a request for certification from a party who chose to invoke federal jurisdiction." Jefferson v. Lead Industries Ass'n, Inc., 106 F.3d 1245, 1248 (5th Cir.1997); See also Schmitt v. American Family Mut. Ins. Co., 161 F.3d 1115, 1117 (7th Cir.1998); Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C.Cir.1988); National Bank v. Pearson, 863 F.2d 322, 327 (4th Cir.1988); Seaboard Sur. Co. v. Garrison, Webb & Stanaland, P.A., 823 F.2d 434, 438 (11th Cir.1987); Colonial Park Country Club v. Joan of Arc, 746 F.2d 1425, 1429 (10th Cir.1984); Cantwell v. University of Mass., 551 F.2d 879, 880 (1st Cir.1977); Santiago v. Sherwin Williams Co., 3 F.3d 546, 548 (1st Cir.1993) ("For reasons that are largely self-explanatory, we have held that `one who chooses to litigate [her] state action in the federal forum (as plaintiff did here) must ordinarily accept the federal court's reasonable interpretation of extant state law rather than seeking extensions via the certification process.'"). Indeed, in Jefferson, the Fifth Circuit recently declined certifying questions of state law, in part because the party requesting certification was the very party who had chosen the federal forum:
Although not alone dispositive, Jefferson's choice of forum cannot be ignored. By filing suit in federal court, Jefferson consciously exercised her option to litigate in either state or federal court when she chose the latter. That her electing to file in federal court might have been done in anticipation of removal by the defendants is of no moment: `[T]he court should be slow to honor a request for certification from a party who chose to invoke federal jurisdiction.'
Id. Here, while not the sole factor considered by this court, the Patels invoked this court's diversity jurisdiction and, in so doing consciously chose to accept this court's interpretation of Indiana law. For them to now attempt to annul that choice of forum because the federal court's interpretation is not to their liking does not comport with the spirit of the certification rule.
This court does not lightly abdicate its mandate to decide issues of state law when sitting in diversity, but in the same vein cases are not to be routinely certified merely because the certification procedure is available. This court agrees with the Fifth Circuit's recent statement that:
As a general proposition we are chary about certifying questions of law, absent a compelling reason to do so; the availability of certification is such an important resource to this court that we will not risk its continued availability by going to that well too often.
*956 Jefferson, 106 F.3d at 1247; see also Boyter v. C.I.R. Service, 668 F.2d 1382, 1385 n. 5 (4th Cir.1981) ("Federal courts should take care not to burden their state counterparts with unnecessary certification requests."); Barnes v. Atlantic & Pacific Life Ins. Co., 514 F.2d 704, 705 n. 4 (advocating much judgment, restraint and discretion in certifying questions). This court shall not approach that well as a matter of course, nor shall it press certification when the certification requirements are not met. Accordingly, both the Plaintiffs' Motion to Certify and the Plaintiffs' Motion to Reconsider are DENIED.

2. United Fire's Motion for Partial Summary Judgment Relating to Emotional Damages

With the certification issue laid to rest, the court turns now to the substance of United Fire's motions for summary judgment. In its second partial summary judgment motion, United Fire seeks a determination that the Patels are not entitled to recover emotional damages as part of their bad faith tort claim, as a matter of law. As noted, Erie Insurance Co. v. Hickman expressly declined to identify the damages recoverable in a bad faith action and provided only the following guidance with respect to the scope of damages for such a cause of action:
Neither do we need to decide the precise nature and extent of damages recoverable in such an action. In tort, all damages directly traceable to the wrong and arising without an intervening agency are recoverable. By contrast, the measure of damages in a contract action is limited to those actually suffered as a result of the breach which are reasonably assumed to have been within the contemplation of the parties at the time the contract was formed. Nonetheless, in most instances, tort damages for the breach of the duty to exercise good faith will likely be coterminous with those recoverable in a breach of contract action.
Erie, 622 N.E.2d at 519. It is from the concluding sentence of this paragraph that United Fire adopts its position that the Patels may not recover emotional damages because such damages are ordinarily not recoverable in a breach of contract action. See United Fire's Reply, p. 5. United Fire also advances three other theories: first, under Indiana law the Patels may not recover emotional damages without first showing a physical injury (i.e., the "impact rule"); second, the intentional tort exception to the impact rule does not apply; and third, even if the intentional tort exception does apply, Indiana case law relating to bad faith does not contemplate the recovery of emotional damages. In response, the Patels assert that they are entitled to recover all damages directly traceable to their tort action including emotional damages and that the intentional tort exception to the impact rule permits them to recover emotional damages under Indiana law. The court shall address each of these arguments in turn.

a. Indiana's "Impact Rule" and the Intentional Tort Exception

Indiana adheres to the traditional "impact rule" for emotional damages. This rule gained its title from "the requirement that there be some physical impact on the plaintiff before recovery for mental trauma will be allowed." Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind.1991). Indeed, under this rule damages for emotional distress may only be recovered by a plaintiff when the emotional injury was accompanied by a physical impact to the plaintiff. Recently, in Conder v. Wood, 716 N.E.2d 432, 434 (Ind.1999), the Indiana Supreme Court recited in detail the nature of the rule:
Indiana had long maintained a rule that damages for emotional distress injury could only be recovered when the injury was accompanied by a physical impact to the plaintiff. Historically referred to as the "impact rule," it required proof of three elements: (1) an impact on the plaintiff; (2) which caused physical injury to the plaintiff; (3) which physical injury, in turn, caused the emotional distress. Put another way, the rule mandated *957 that damages for emotional distress were recoverable only when the distress was accompanied by, and resulted from, a physical injury caused by an impact to the person seeking recovery. Actionable emotional distress had to be the natural and direct result of the plaintiff's physical injury.
Id. (internal citations omitted).
Although this "impact rule" remains the general rule in Indiana, the Indiana Supreme Court in Shuamber created a "modified impact rule" which reformulated the impact rule to permit the recovery of emotional distress damages if "a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person ... without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff." Shuamber, 579 N.E.2d at 456.[10] Thus, Shuamber requires that a plaintiff show that he or she has sustained a "direct impact by the negligence of another" and that he or she has suffered emotional trauma "by virtue of that direct involvement." See Groves v. Taylor, 711 N.E.2d 861, 864 (Ind.App. 1999); Conder, 716 N.E.2d at 434.
In addition to creating the "modified impact rule," the Shuamber court also reconfirmed the exception to the impact rule for intentional torts first set forth in Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991), stating, "Indiana courts have recognized an exception to operation of the impact rule in cases where the defendant's conduct was `inspired by fraud, malice or like motives involving intentional conduct.'" Shuamber, 579 N.E.2d at 454. Under this body of law, recovery for emotional distress may be had in the absence of a physical injury in the case of an intentional tort which would foreseeably provoke an emotional disturbance of the kind normally to be aroused in the mind of a reasonable person. Shuamber, 579 N.E.2d at 454-55; see also Etienne v. Caputi, 679 N.E.2d 922 (Ind.App.1997); Groves, 711 N.E.2d at 863, n. 1. It is this holding which the Patels contend is controlling with respect to emotional damages in this case.

2. Application of the Impact Rule and Intentional Tort Exception

The Patels do not dispute the existence or the theory of the impact rule and the modified impact rule. Rather, the Patels assert that the tort of bad faith is an intentional tort and thus, the impact rule is inapplicable to this case. The Patels' argument on this score is not a novel one. In Firstmark Standard Life Insurance Company v. Goss, 699 N.E.2d 689 (Ind. App.1998), the plaintiff asserted that she was entitled to recover emotional damages on her bad faith claim because her emotional distress was a byproduct of her insurer's breach of its duty of good faith. The Indiana Appellate court explained her argument in this fashion, "[Goss asserts that] by breaching its duty of good faith to [her], Firstmark committed an intentional tort which would foreseeably provoke an emotional disturbance of the kind normally to be aroused in the mind of a reasonable person." Although Goss made this argument, the court did not have occasion to reach the question of whether emotional damages are available in a bad faith action *958 because it concluded as a matter of law that the insurer was not liable for the tort. In explaining this, the court concluded, "Without proving Firstmark violated its duty of good faith, i.e., committed the tort, there is no basis for an award of any damages based upon the tort. Accordingly, like our supreme court in Erie, we leave for another day the determination of the precise nature and extent of damages recoverable in such an action." Id. at 692. Thus, although the argument has been raised before, this court is the first to determine whether it wins the day.
In rebutting the Patels' assertions, United Fire argues that the concept of bad faith is "unintentional" and thus the unintentional actions of an insurer can permit a finding of bad faith. See United Fire's Reply, p. 4. United Fire goes on to note that the intentional tort exception to the impact rule, as reconfirmed by Shuamber, is only applicable to actions "inspired by fraud, malice or like motives involving intentional conduct," Shuamber, 579 N.E.2d at 454, and "[s]uch ill inspired conduct is not a prerequisite to a bad faith claim." United Fire's Reply, p. 4.
Neither party cites to any Indiana authority which holds that the tort of bad faith is an intentional tort. Perhaps this is because the tort of bad faith, as defined in Indiana, is a hybrid cause of action, sharing elements of both a negligence action and one for an intentional tort. From its initial articulation by the Indiana Supreme Court, the tort of bad faith breach of an insurance contract has been characterized by willful, and conceivably even intentional, conduct. Bad faith conduct by an insurer has been described by Indiana courts as more than "poor judgment or negligence" but requires conduct that is evidenced by a "state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will." Colley v. Indiana Farmers Mut. Ins. Group, 691 N.E.2d 1259 (Ind.App.1998); see also Johnston v. State Farm Mut. Auto. Ins., 667 N.E.2d 802, 805 (Ind.Ct.App.1996) (requiring an element of conscious wrongdoing to be present). At the same time, however, insurers are not liable for bad faith if they act "reasonably" in denying coverage or pressing an argument against coverage. See Colley, 691 N.E.2d at 1261 (insurer not liable if it denies liability having a rational, principled basis to do so). This principle of reasonableness sounds in negligence and seemingly embodies negligence principles.
While the bad faith cause of action may commingle the notions of negligence and intentional torts, this court believes, after close examination, that the Indiana Supreme Court would consider the tort more closely aligned with the principles underlying an intentional tort than with those ascribed to negligence.
Under Indiana law, a person may be found to have exhibited the necessary intent for an intentional tort through one of two ways. Under the first method, a plaintiff must show that the tortfeasor acted with a "specific intent," that is where the tortfeasor does something which brings about the exact result desired. Under the second method, the tortfeasor does something which he believes is substantially certain to cause a particular result, even if the tortfeasor does not desire that result. See Shewmaker v. Etter, 693 N.E.2d 608 (Ind.App.1998). As noted previously, Indiana courts require a jury to find that the insurer acted with a state of mind evidencing conscious wrongdoing before it may conclude that an insurer has breached its duty to act in good faith. See Johnston, 667 N.E.2d at 805. Such a finding is akin to the insurer having a specific intent to injure the insured and thus, consciously acting with such a purpose. Therefore, this court holds that the tort of bad faith breach of an insurance contract is an intentional tort under Indiana law. The court further concludes that an insured may recover emotional damages under the intentional tort exception to Indiana's impact rule where the insured has proven bad faith conduct by the insurer.
*959 Support for this conclusion is gleaned from the Indiana Supreme Court's decision in Erie. The Erie court clarified that a cause of action for bad faith breach of an insurance contract was developed to fill a void in the remedies provided to an insured arising from that conduct. See Erie, 622 N.E.2d at 519 (noting that one of the primary factors the court considered was the "return to the rule of no punitive damages in contract cases ..."). Traditionally, contract damages (as this court has already held in this case) were limited to the face value of the insurance policy plus interest. Erie, 622 N.E.2d at 519 (contract damages limited to those actually suffered as a result of the breach). Such a rule, although not expressly recognized in Erie, created an incentive for insurers to refuse payment of even legitimate claims since at most, the assessed damages would equal the limits of the policy plus interest. The reason for recognizing the new tort was to discourage insurers from such behavior and to provide the insured with some bargaining power against an insurer. More importantly, the goal of Erie is to permit plaintiffs in bad faith actions to recover damages beyond those traceable to the contract, including punitive damages. Thus, the Erie court expressly stated that in tort, "all damages directly traceable to the wrong and arising without an intervening agency are recoverable." Erie, 622 N.E.2d at 519. The wholesale inability of a plaintiff to collect compensatory damages such as emotional damages in a bad faith tort action, as defendant urges, thwarts Erie's purpose as well as the public policy behind the Indiana Supreme Court's recognition of the tort.
This court is not alone in either its recognition that the bad faith cause of action is an intentional tort or its conclusion that a finding of bad faith permits an insured to recover all damages, including emotional damages, proximately caused by the insured's conduct. This has long been the law in numerous jurisdictions that have adopted bad faith causes of action.[11]See generally, Shernoff, Gage & Levine, INSURANCE BAD FAITH LITIGATION, § 7.04 (Matthew Bender, 1999); Ashley, BAD FAITH ACTIONS LIABILITY AND DAMAGES, § 8.04 (West, 2d Ed.1997); McCorkle v. Great Atlantic Ins. Co., 637 P.2d 583, 587 (Okla. 1981) (liability for the "intentional tort" of bad faith requires a clear showing that the insurer unreasonably, and in bad faith, withheld payment of the claim of its insured); Chavers v. National Sec. Fire & Cas. Co., 405 So.2d 1, 6 (Ala.1981) (recognizing bad faith as an intentional tort and holding that, "[t]he law will not allow an insurer to wilfully refuse to evaluate or honor a claim with the knowledge that the avowed purpose of the insurance contract was to protect the insured at its weakest and most perilous time of need."); Anderson v. Continental Ins. Co., 85 Wis.2d 675, 271 N.W.2d 368, 374 (1978) (holding that a claim for bad faith is an intentional tort); 145 Wis.2d 573, 427 N.W.2d 427, 432 ("A `bad faith' cause of action has always been considered an intentional tort"); Ring v. State Farm Mut. Auto. Ins. Co., 147 Ariz. 32, 708 P.2d 457, 462 (App.1985) ("In Arizona, a claim against an insurer for bad faith is an intentional tort."); Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (1973) (permitting emotional distress damages in insurance bad faith case); Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 140 (Del.Sup.1997) ("An insurer who acts in bad faith in dealing with a claim may incur liability not only for damages under the policy but for uncovered economic losses of the insured, the insured's emotional distress damages, attorney's fees, and punitive damages."); Ingalls v. Paul Revere Life Ins. Group, 561 N.W.2d 273, 283 (N.D.1997) ("Because *960 a primary consideration in purchasing insurance is the peace of mind and security it will provide, an insured may recover for any emotional distress resulting from an insurer's bad faith."); Ballow v. PHICO Insurance Co., 878 P.2d 672 (Colo.1994) (permitting recovery in bad faith claim based upon traditional tort principles of compensation for injuries actually suffered, including emotional distress.); Universal Life Ins. Co. v. Veasley, 610 So.2d 290 (Miss.1992) ("We have traditionally held that damages for mental anguish and emotional distress cannot be considered in the absence of a finding of an independent intentional tort separate from the breach of contract. Bad faith is considered such an independent tort.")
With this said, the court concludes that Indiana's Supreme Court, if presented with the issue, would hold that an insured injured by the bad faith conduct of an insurer, that is conduct which evidences a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will, is entitled to recover damages based upon traditional tort principles of compensation for resultant injuries actually suffered, including emotional distress. Certainly, as the Indiana Supreme Court noted in Erie, there will be cases where the damages for breach of contract and the tort damages will coincide or overlap. However, in some instances, as in the present case, the insured's allegations of injury as a result of the insurer's bad faith conduct extend beyond those damages which would be traditionally recoverable in a breach of contract action. When such a case arises, this court believes that Indiana's Supreme Court, in accordance with its decision in Erie, would find such damages recoverable, subject to proof (and causation) at trial. This interpretation of Indiana law gives meaning to Erie's statement that "an insured who believes that an insurance claim has been wrongly denied may have available two distinct legal theories, one in contract and one in tort, each with separate, although often overlapping, elements, defenses and recoveries," Erie, 622 N.E.2d at 520 (emphasis added), as well as Erie's recognition that the tort of bad faith leaves an insurer open to the prospect of punitive damages liability. Id. For these reasons, United Fire's motion for partial summary judgment as to emotional damages is hereby DENIED.

3. United Fire's Motion for Partial Summary Judgment Relating to Attorney's Fees

Indiana follows the "American rule," which requires each party to pay its own attorney's fees, absent an agreement, statute, or rule to the contrary. See Mitchell v. Mitchell, 695 N.E.2d 920, 922 (Ind.1998); Kikkert v. Krumm, 474 N.E.2d 503, 504-05 (Ind.1985); Shumate v. Lycan, 675 N.E.2d 749, 754 (Ind.Ct.App.1997), trans. denied. Plaintiffs agree that the general rule in Indiana is the "American rule" but urge this court to hold that (1) an exception to the American Rule applies in bad faith tort cases, or (2) the statutory exception contained in Ind.Code § 34-52-1-1(b)(3) applies. Not surprisingly, defendant disagrees with both these notions, and argues that the plaintiffs are foreclosed from recovering any attorney's fees.[12]
In support of their first contention, i.e. that the Indiana Supreme Court would, if presented with the issue, find an exception to the American Rule where a jury finds bad faith conduct by an insurer, the Patels rely solely on the Indiana Court of Appeals decision in Mikel v. American Ambassador Cas. Co., 644 N.E.2d 168 (Ind.App. 1994).
In Mikel, the insured (Mikel) brought a declaratory judgment action against his insurer after he was denied coverage for an automobile accident involving his newly acquired automobile. Although the insurer initially denied coverage, after the insured filed suit, it reconsidered its position *961 and granted coverage. The insurer, however, refused to pay Mikel's attorney's fees for bringing the declaratory judgment action. Mikel asserted that he was entitled to recover attorney's fees under specific language in his insurance policy which provided that the insurer will pay all reasonable expenses "incurred at [the insurer's] request." The trial court disagreed with Mikel and found in favor of the insurer. On appeal, Mikel reasserted his argument that the language of his policy entitled him to attorney's fees.
After a discussion of the American Rule, the Indiana Court of Appeals held that under the plain and ordinary meaning of "request," it was clear that the insurer did not ask Mikel to incur attorney's fees. In addition, the court looked to case law in other jurisdictions and reaffirmed the principle that "insurers should be able to litigate claims in good faith without liability for their insured's attorney's fees." See Mikel, 644 N.E.2d at 170, fn. 1 & 171. The court then explained:
We hold that when the insured brings an action for a declaration of coverage and prevails, absent a bad faith denial of coverage by the insurer, attorney's fees incurred by the insured in the prosecution of the action are not incurred at the `request' of the insurer. Our holding is consistent with the longstanding rule in Indiana that an insurer may dispute claims in good faith.
Id. at 172.
The Patels contend that the above quoted passage from Mikel implies "that if bad faith is shown, then attorney fees would be awarded by the Indiana courts." See Response, p. 6. Certainly, the Mikel court raises an inference that perhaps if Mikel had alleged bad faith, he would have been entitled to attorney's fees had he prevailed on that claim. However, as this court has noted previously, it is bound only by decisions of Indiana's Supreme court. Mason, 965 F.2d at 1424. While "intermediate appellate court decisions are ... a strong indication of what the state's high court would do," Burleson, 725 F.Supp. at 1491 n. 2, federal district courts are not bound by the decisions of the Indiana Court of Appeals. Rayford, 851 F.Supp. at 1249.
In the present case, Mikel represents a case where, in dicta, an intermediate appellate court creates an inference in favor of the plaintiffs' position that a successful tort action for breach of the insurer's duty of good faith yields an award of attorney's fees. At the same time, however, this opinion reaffirms the general and longstanding principals espoused in Indiana case law that the insurer has an absolute right to dispute and litigate claims in good faith, see Vernon Fire & Casualty Ins. Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173 (1976), and that parties to litigation are required to pay their own attorney's fees. Gavin v. Miller, 222 Ind. 459, 54 N.E.2d 277 (1944). Because these two principles are built upon solid foundation in Indiana law, this court declines to abrogate them without more guidance from Indiana's courts.
Plaintiffs next contend that they are entitled to attorney's fees in this case pursuant to Ind.Code § 34-52-1-1(b)(3), which provides that "In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party ... (3) litigated the action in bad faith." Plaintiffs find support for this assertion in Magistrate Judge Cosbey's recent order in Phaedra Partners, Ltd v. Traveler's Property Casualty Corp., 99-CV-29 (N.D.Ind. April 26, 1999) (slip opinion).
In Phaedra, Magistrate Judge Cosbey denied a motion by the insurer to strike the plaintiff's prayer for attorney's fees from the complaint based upon the exception contained in Ind.Code § 34-52-1-1(b)(3) and the Indiana Supreme Court's holding in Mitchell v. Mitchell, 695 N.E.2d 920, 922 (Ind.1998): "In light of this recent guidance from the Indiana Supreme Court, this Court is reluctant to find the prelitigation conduct alleged in this case  in essence, the Defendant's bad faith failure to comply with its insurance agreement *962 with the Plaintiff  will not, if proven, also meet the legal standard for `litigating in bad faith' as set out in § 34-52-1-1(b)(3)." Id. at 4-5. This court is in agreement with Judge Cosbey's reasoning in Phaedra and shall reiterate that reasoning as it relates to the parties' arguments.
In Phaedra, Judge Cosbey explored the meaning of the phrase "litigated the action in bad faith" in § 34-52-1-1(b)(3) by looking to the Indiana Supreme Court's interpretation of that phrase in Mitchell. Mitchell construed the phrase as follows:
`litigated the action in bad faith' by its terms requires scrutiny of the motive or purpose of the non-prevailing party. More precisely, `bad faith is not simply bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. It is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.'
Mitchell, 695 N.E.2d at 924-25. This standard for liability for attorney's fees is essentially identical to the bad faith standard the Indiana Supreme Court established in Erie for bad faith actions against insurers. Therefore, according to the plaintiffs in Phaedra, a jury determination that the Defendant acted in "bad faith" in denying their claim demonstrates that the Defendant also "litigated in bad faith," opening the door for an award of attorney's fees pursuant to § 34-52-1-1(b)(3).
United Fire takes the same position taken by the defendant in Phaedra, that is, that the word "litigated" in § 34-52-1-1(b)(3) should be read literally, and therefore should only apply to bad faith conduct of a losing party during the litigation process. United Fire further contends that plaintiffs have not alleged that its conduct during the litigation is in bad faith but only that it denied coverage in bad faith. Thus, under United Fire's theory any bad faith finding by a jury applies only to the conduct which formed the underlying basis for this lawsuit (i.e., the Defendant's denial of insurance coverage), and therefore cannot also serve to support liability for attorney's fees under § 34-52-1-1(b)(3).
United Fire's argument, that the phrase "litigated in bad faith" does not encompass pre-litigation conduct, has some surface appeal. The Indiana Supreme Court, however, appears to have signaled a more expansive point of view. Mitchell, 695 N.E.2d at 925. The dispute in Mitchell arose from an agreement between a daughter and her stepmother upon the death of the daughter's father (the stepmother was the father's second wife). The agreement specified that the stepmother was to act in a "prompt and reasonable manner" to search for and produce several items of sentimental value to the daughter. The stepmother did not comply with the terms of the agreement, and the daughter sued for specific performance. The trial court found, inter alia, that the stepmother had willfully and intentionally failed to comply with the agreement, and that her failure to comply with the agreement was "willful, intentional, and in bad faith," and awarded attorney's fees accordingly.
In applying these findings to § 34-52-1-1(b)(3), the Indiana Supreme Court stated: The findings in this case amply illustrate that [the stepmother] acted with "furtive design or ill will" both before and after the suit was filed. Indeed, [the stepmother] does not dispute the trial court's finding that her "failure to comply with the Agreement was ... in bad faith." The trial court's finding meets the statutory legal standard that [the stepmother] "litigated in bad faith."

Mitchell, 695 N.E.2d at 925 (emphasis added). As Judge Cosbey acknowledged in Phaedra, "it is entirely likely that Justice Boehm was not thinking of plaintiff's verdicts in bad faith insurance cases when he penned Mitchell." Phaedra, at 4. Nevertheless, this passage indicates that the stepmother/defendant's "failure to comply with the Agreement"  i.e., the conduct that formed the basis for the lawsuit  also met the statutory legal standard for litigating in bad faith under § 34-52-1-1(b)(3). *963 As a result, Judge Cosbey concluded and, now this court holds, that in the context of a bad faith insurance dispute, an insurer's denial of coverage in bad faith may lead to a conclusion that the insurer litigated the action in bad faith, as that term is contemplated under § 34-52-1-1(b)(3). See Phaedra, at 4.
There is, however, one caveat to the above holding. While § 34-52-1-1(b)(3) provides a vehicle by which an award of attorney's fees may be assessed, the decision of whether to award them, and the amount, lie within the discretion of the trial court, post-trial. Mitchell, 695 N.E.2d at 924 (citing Kahn v. Cundiff, 533 N.E.2d 164, 167 (Ind.Ct.App.1989), adopted on trans., 543 N.E.2d 627, 629 (Ind.1989) (per curiam)). Indeed, Mitchell solicits the trial court's scrutiny of the motive and purpose driving a party's litigation conduct in the course of exercising its discretion under § 34-52-1-1(b)(3). Thus, not every finding of bad faith conduct will necessarily subject an insurer to liability for its insured's attorney's fees.
Because the court finds that plaintiffs may, under certain circumstances, recover attorney's fees under § 34-52-1-1(b)(3), United Fire's Motion for Partial Summary Judgment as to attorney's fees is DENIED.

CONCLUSION
Based on the foregoing, the Patels' Motion for Reconsideration is DENIED; the Patels' Motion to Certify Questions of State Law is DENIED; United Fire's Motion for Partial Summary Judgment relating to emotional damages is DENIED; United Fire's Motion for Partial Summary Judgment relating to attorney fees is DENIED. The court shall take under advisement United Fire's Motion for Partial Summary Judgment relating to lost profits and United Fire's Motion Strike the Affidavit of Mahendra Patel.
NOTES
[1]  As part of their business enterprise, the Patels had leased their building to Steinhaus, an Indiana corporation which planned to utilize the building.
[2]  The court begins its discussion cognizant that under the doctrine espoused in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, a federal court sitting in a diversity action is bound to apply the substantive law of the state which provides the rule of decision in addressing plaintiffs' claims. In this case, the court must predict how the matter before it would be resolved by the highest court in Indiana. Mason v. Ashland Exploration, Inc., 965 F.2d 1421, 1424 (7th Cir.1992); Koval v. Simon-Telelect, Inc., 979 F.Supp. 1222, 1231 (N.D.Ind.1997). "[I]ntermediate appellate court decisions are ... a strong indication of what the state's high court would do." Burleson v. Illinois Farmers Insurance Company, 725 F.Supp. 1489, 1491 n. 2 (S.D.Ind.1989), citing Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern Nat. Insurance, 750 F.2d 619 (7th Cir.1984); Heinhold v. Bishop Motor Exp., Inc., 660 F.Supp. 382 (N.D.Ind.1987). However, in making a determination of how a case would be decided by the Indiana Supreme Court, federal district courts are not bound by the decisions of the Indiana Court of Appeals. Rayford v. Lumbermens Mutual Casualty Company, 851 F.Supp. 1247, 1249 (N.D.Ind.1994); Robinson v. Ada S. McKinley Community Services, Inc., 19 F.3d 359, 363 (7th Cir.1994).
[3]  United Capitol began as a declaratory judgment action which later spawned a second lawsuit by the insured alleging that the insurer litigated the declaratory judgment action in bad faith and breached its duty to act in good faith.
[4]  It is for this very reason that plaintiffs filed their motion to certify questions of Indiana state law to the Indiana Supreme Court pursuant to Ind.App.R. 15(O), discussed infra.
[5]  Ind.App.R. 15(O) provides:

When it shall appear to ... any United States District sitting in Indiana that there are involved in any proceeding before it questions or propositions of the laws of this state, which are determinative of the said cause, and there are no clear controlling precedents in the decisions of the Supreme Court of this state, such federal court may certify such questions or propositions of the laws of this state to the Supreme Court of this state for instructions concerning such questions or propositions of state law which certificate the Supreme Court of this state, by written opinion, may answer.
[6]  Plaintiffs also request the court to certify the question of whether they are entitled to attorneys fees if they prove bad faith.
[7]  In 1995, the Uniform Act of 1967 was revised to read:

The [Supreme Court] of this State may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State.
Despite this broadening revision, Indiana has not adopted the amended Uniform Act. In fact, a current proposal to revise Ind.App.R. 15(O) and recodify it as Ind.App.R. 64 makes it more clear that Indiana requires a certified question to be "determinative of the case." See Proposed Ind.R.App.P. 64 ("[Any federal court] may certify a question of Indiana law to the Supreme Court when it appears to the federal court that a proceeding presents an issue of state law that is determinative of the case and on which there is no clear controlling Indiana precedent.")
[8]  This appears to be what the drafters of the Uniform Law intended when it originally drafted the language "determinative of the cause." See American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts, Official Draft 1969, p. 269 (If a state "should decide that it can answer certified questions only if any answer it gives will end the case, then the certifying judge will understand this and will not certify questions in cases that are not in such a posture."). Under certain circumstances, however, the final opinion of the Indiana Supreme Court on a certified question may not, in effect, dispose of an entire case. Indeed, it is entirely possible that even with an answer from the Indiana Supreme Court, further and extensive proceedings; including even a trial, will be necessary.
[9]  Given the fact that the other damage questions are not determinative of any claim, let alone the "cause," it makes little sense, even assuming this court could certify the consequential damages issue, to certify that question and not the remaining questions, all of which are equally unsettled questions in Indiana.
[10]  In Shuamber, a mother and daughter were involved in an automobile accident in which a younger family member died. Both mother and daughter sustained various physical injuries, but did not seek recovery for emotional trauma arising out of their own physical injuries. Instead, they sought recovery for emotional trauma caused by witnessing the death of a younger family member. As such, the Shuambers were precluded from recovery under the impact rule then in effect. After analyzing the policies supporting the impact rule, the Court concluded that there was "no reason under appropriate circumstances to refrain from extending recovery [to a plaintiff] for emotional distress to instances where the distress is the result of physical injury negligently inflicted on another." Shuamber, 579 N.E.2d at 455.
[11]  When addressing an unsettled issue of state law, the court may be guided by relevant authority of other jurisdictions that have addressed the issue. See Erie Ins. Group v. Sear Corp., 102 F.3d 889, 892 (7th Cir.1996) (where unsettled issue of state law arises, federal court may rely on relevant authority from other jurisdictions in determining what state would do if presented with the issue).
[12]  Notably, neither party spends any time on the facts in their argument; rather, the issue they frame is whether the Patels would ever be entitled to attorney's fees on their claims as a matter of law.