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The Church went forward with its suit and the trial court granted summary judgment against the Church.
To support its allegation that the Church invoked appraisal during the claims handling process, which was denied by the carrier, the Church pointed out two instances in the claim file where the Church or its public adjuster hinted at appraisal during the claims handling process. Insurance is a heavily regulated industry and everyone who reads our daily blog knows that insurance rules and regulations vary by state and fall under each individual state’s jurisdiction.
In many states, appraisal is very informal and does not take on the form of a truncated trial like arbitration. In Hawai’i, the appraisal award is treated just like a binding arbitration award and a party can move to vacate the award only on the grounds provided under HRS section 658A-23. The leading case on appraisal in Hawai’i as it pertains to property insurance claims is Christiansen v. In Texas the general rule seems to be that either the insurance company or the policyholder may invoke the appraisal clause (before or after suit is filed). First the court looked at prior cases, which indicated that appraisal awards are binding on both parties.
Why shouldn’t this analysis be used in all appraisal contexts, regardless of whether appraisal clauses are imposed by the legislature of various states? I suggest the right to trial by jury be used when trying to set aside bad awards where the carrier invoked appraisal and the award comes back against the policyholder. 1 I have previously blogged about the fact that Texas cases are mixed on the policyholder’s right to maintain a post-appraisal lawsuit on issues of bad faith and Prompt Payment. 4 This is an interesting point because it assumes the policyholder has the ability to negotiate whether his insurance policy contains an appraisal clause. In the property insurance world, appraisal is a commonly used procedure to resolve disagreements over the amount of a loss.
The insured also submits to the insurer the names and addresses of three potential referees. A referee must be disinterested, a resident of the commonwealth, and willing to act as referee. Within ten days of the appointment or selection of the third referee, the referees must meet to hear evidence in the case.
A reference proceeding does not waive any of the insurer’s legal defenses to the claim.
If an award is rendered by the referees in favor of the insured, the insurer and the insured are each liable to the third referee for one half of his or her charges for compensation and expenses. House Bill 79 and Senate Bill 336 would have set up a new regulatory framework regarding the appraisal process and would have added specifics about who could serve as an umpire.
Although the bills did not ultimately make it to the finish line, they got far enough in the process to likely keep this issue in play for next session.
State Farm and Farmers have created new property insurance policy forms which significantly change the rules of appraisal. If the appraisers do not agree on the selection of an umpire within 15 days, they must request selection of an umpire by a judge of a court having jurisdiction.
Compare this simple clause with the two appraisal provisions authored by State Farm and Farmers.
You and we do not waive any rights by demanding or submitting to an appraisal, and retain all contractual rights to determine if coverage applies to each item in dispute.
Departments of insurance should question the need and impact of the proposed language before approving such clauses. Most times, Policyholders and Consumers don’t get intimately familiar with their insurance policies and the provisions until a claim destroys or damages their home or business. House Bill 79 addresses a provision called appraisal, the alternative dispute resolution process that is in some policies. While the appraisal clause goes back over 100 years and was in the standard policies in the early 1900’s In Florida, the trend has been for insurance companies to yank out this policy provision from your insurance contract so policyholders either had to take the dish the insurance company was serving (denial, low ball payment or delay), or file suit.
Some companies have started to add back this appraisal provision to the policies written in Florida. But the question I pose this Sunday morning is whether our legislature is making sure it protects consumers? We have not had a hurricane hit the state in over nine years and memories seem to be fading about those losses.
Also look at the video of the presentation made on Thursday to the Regulatory Affairs Committee.
Generally, absent a statute or enforceable policy provision mandating a different result, an insured should be able to hire an appraiser on a contingent fee basis. If a policy provision precludes an appraiser from working on a contingency fee basis then the policy controls and any appraisal agreement should not contain compensation based upon a contingency. However, if the policy contains no provision regarding how an appraiser is to be compensated, then the answer is less clear. On the flip side though, insurance carriers are looking for any argument to overturn an award that favors the policyholder.
I am certainly not endorsing the insurance company’s position that compensation on a contingent fee basis equals partiality. The homeowners argued that the appraisal process may not be used to resolve coverage issues because that would constitute arbitration which is not allowed in Missouri pursuant to RSMo.
Further, the court found that appraisal may be demanded by either party, but that right is limited to resolve differences in the amount of damages for a covered loss. If you and we fail to agree on the amount of damages as the result of a covered loss, either may demand that the actual cash value and the amount of the loss be set by appraisal. 2 A written agreement to submit any existing controversy to arbitration or a provision in a written contract, except contracts of insurance and contracts of adhesion, to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.
The reasoning was that the policyholder cannot use the difference between what was paid before appraisal and what was awarded in the appraisal as evidence of breach of contract. In June 2015, Judge Boyle of the United State District Court for the Northern District of Texas decided Graber v. On appeal, State Farm argues that Lime Bay breached the insurance contract by filing suit after State Farm invoked the appraisal provision of the contract policy.
State Farm argues that the appraisal provision and the section explaining the prerequisites for legal action should be interpreted together.
The issue the court highlighted that supported this conclusion is that State Farm failed to prove to the policyholder before the suit was filed that State Farm had complied with Florida law requiring it to timely notify the policyholder of its right to participate in a Department of Financial Services mediation process.


Just as I was thinking about Colorado mountains and finishing the booking of my Christmas ski trip to Beaver Creek, the Colorado Department of insurance delivers Bulletin No.
This Bulletin goes a long way towards addressing the concerns I stated and that are very problematic with appraisals. Si les univers paralleles existent, pouvez-vous imaginer un dans lequel la relation entre les humains et les animaux est inversee ? Oracle Insurance created Alamere as a fictional insurance company to demonstrate potential Oracle product uses.
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Philadelphia Indemnity Insurance Company,1 from the Dallas Court of Appeals, is an interesting case. However, neither statement put Philadelphia Indemnity on notice that the Church was making a present demand that the appraisal process set forth in the policy be followed for determining the amount of the loss. Typically, appraisal occurs in California property insurance claims when there is a disagreement on the amount in controversy of the worth of a claim and not in the scope of a claim. The grounds are similar to those in other jurisdictions -- if the award was the product of corruption or fraud, there was partiality or an abuse of power by the arbitrator, the arbitrator refused to consider material evidence, etc.
After the award both parties are generally bound by the award, unless they can prove the award was arrived at as a result of fraud or some other recognized basis for challenging the award. However, the court pointed out those cases were decided before Oklahoma law mandated the inclusion of the appraisal clause. As I said before, even in states where appraisal clauses are not mandated by the legislature, they are no less mandatory for the policyholder. Insurance policies are contracts of adhesion, which means the policyholder has no ability to negotiate any part of his policy. The Senate Bill has not been voted on yet and there are still some possible changes that may occur.
One of the trends of insurance coverage is that new policies are not being written with standard language, where years of case law have interpreted meanings of phrases used by all insurers.
You and we must notify the other of the appraiser selected within twenty days of the written demand for appraisal.
The Farmers appraisal endorsement is written over four pages and even has the American Arbitrations Association appointing the Umpire. My other prediction is these more detailed clauses will lead to more litigation, even after an appraisal award is made. I can guarantee you that the insurers are not writing the new language to help policyholders get full benefits paid quicker and sooner. Georgia doesn’t have a statute addressing whether insurance appraisers can be compensated on a contingency.
Georgia is generally conservative when it comes to appraisal; for example, Georgia disallows the determination of causation in appraisal. However, this is an argument carriers make to the courts and many courts have agreed with the insurance companies. Insureds and their appraisers must consider the benefits and potential downfalls of compensation on a contingent fee basis.
In this event, each party will choose a competent and disinterested appraiser…The appraisers will appraise the loss, stating separately actual cash value and loss to each item. I handled many Ike cases where the carrier had been completely recalcitrant for a year or two before I was hired to file suit.
State Farm Lloyds.3 The facts in Graber are the typical fact pattern in first-party claims. State Farm Lloyds.6 Not only did Cavazos involve the same insurance company as Graber, but near identical facts. State Farm had paid under $10,000 for roof repairs following its investigation and the policyholder claimed that the roof needed to be replaced.
The appraisal concluded and resulted in an additional payment of over $600,000 by State Farm for the Hurricane Wilma damages. Specifically, once State Farm made a written demand for appraisal, Lime Bay was required to participate in the appraisal process before filing suit. Members from The Rocky Mountain Association of Public Insurance Adjusters and Merlin Law Group's Corey Harris met with insurance regulators and insurance company representatives to hammer out changes that are not perfect, but far better than previously in place. Is not a family member or an individual with whom the insured has a personal relationship that could reasonably suggest bias. An appraiser in the appraisal process may not have a direct material interest in the amounts determined by the appraisal process.
The appraiser shall have a continuing obligation to disclose to all parties to the appraisal process any facts the appraiser learns after accepting the appointment that a reasonable person would consider likely to affect the appraisers [sic] interest in the amounts determined by the appraisal process.
The umpire shall have a continuing obligation to disclose to all parties to the appraisal process any facts that the umpire learns after accepting appointment that a reasonable person would consider likely to affect the impartiality of the umpire. Upon reaching an agreed upon value (either through the selected appraisers or an umpire), the insurer shall comply with the clean claim standards found in Colorado Regulation 5-1-14. The scenarios, events, and people depicted herein are fictional, and any similarity to real persons or events are coincidental and unintended.
With Oraclea€™s comprehensive set of solutions, insurance companies can innovate to keep pace with changing demands, simplify their IT, gain operational efficiencies, lower operational costs and enable growth by modernizing and consolidating legacy systems. First, the Church alleged that the carrier breached the policy contract because the Church demanded appraisal during the claims handling process and the carrier refused to appraise.
We conclude the Church has not presented any evidence showing it made a demand for appraisal under the policy. Although appraisal is definitely not an arbitration process, in Hawai’i, the rules of arbitration apply. In California, once an appraisal aware is reached, each side may choose to perfect the award by filing the appropriate documents in court to convert the award into a judgment. First Insurance asserts that because an appraisal process is as binding as is arbitration, the ongoing appraisal process barred the Christiansen’s from filing an action for bad faith pursuant to the strictures of HRS chapter 658 (governing arbitrations and awards).
It is very difficult to set aside an award.1 I was recently asked by a policyholder about setting aside an unfavorable award in Oklahoma. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. So you could argue, without a statute or policy provision on point, that the appraiser can be hired on a contingent fee basis.


Given this consideration it is likely courts would vacate an award where the appraiser was compensated on a contingent fee basis under claims that the appraiser was not impartial. The courts further held that because the policyholder had to prove an independent injury (breach of contract) as a pre-requisite to recovering on extra-contractual claims,2 once the carrier paid the appraisal award and breach of contract was out then all extra-contractual claims were out.
The policyholder filed a claim and State Farm low-balled the policyholder, who had to hire a lawyer and file suit. After paying the appraisal award State Farm moved for summary judgment arguing that payment of the award eliminated all causes of action for Cavazos.
The policyholder filed a civil remedy notice, and stated to State Farm in 2007 it would sue over the damages. Litigation then picked up over confirmation of the award and attorneys’ fees and costs.
The appraiser must disclose to all parties any known facts that a reasonable person would consider likely to affect an appraiser’s interest in the amounts determined by the appraisal process, including any contingency arrangement related to payment of the appraiser.
Appraisers may directly communicate with each other as part of the appraisal process in an effort to reach an agreed upon settlement amount.
That thought may get a chuckle and a nod of the head from many readers of this blog because many spend a great deal of time and thought when choosing just the right unbiased and fair umpire.
The appellate court disagreed and felt that a bad faith case could not be dismissed and that bad faith allegations against an insurer could still be heard.
The rules are different in Oklahoma because the appraisal award is only binding on the party who invoked appraisal.
In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. In April 2012, the property was damaged in a wind and hail storm and the homeowners made a claim for damages done to the driveway, porch, and deck. However, I like to think they are harbingers of a trend toward reasoned opinions, which take into account the real world truths of how some carriers unfortunately handle many claims. The contract does not clearly require the parties to complete appraisal as a condition precedent to filing suit.
Therefore, the important thing to understand from Christiansen is that if the parties agree to appraisal, and an action is pending or filed, then the action must be stayed until completing the appraisal, and an insured's bad faith claim is not referable to appraisal or arbitration so an insured does not waive a bad faith claim by participating in appraisal. This rule was discussed in an interesting case out of the Oklahoma Supreme Court, Massey v.
The court further reasoned and held that the appraisal award is binding on the party who invoked it because appraisal is permissive to him and he chose the appraisal tribunal as his forum. American Family did not find damages so they asked the homeowners if they wanted to go to appraisal. It reminded me of a popular song during my high school days by Nona Hendryx called Transformation.
Interestingly, the court did not automatically dismiss the breach of contract cause of action. The policyholder demanded proof that State Farm had complied with the Florida statutory mediation notification statute before it would participate in the appraisal. State Farm argued that the policyholder was not entitled to have it reduced to a final judgment and there should be no award of fees and costs since the claim was resolved via the contractual process of appraisal.
Then the Church hired lawyers, who filed suit, but before filing suit the Church filed a formal demand for appraisal. However, appraisal is not binding upon the party who did not invoke it because the binding nature of the appraisal award would violate that party’s constitutional right to trial by jury. When the carrier invokes appraisal, especially after the policyholder has filed suit and invoked his right to trial by jury, the policyholder is forced to go to an appraisal he doesn’t want.
American Family then hired someone to draft an estimate of damages and later filed a motion to have an umpire appointed.
The court, and the policyholder, agreed that the policyholder could not use the difference between what State Farm originally paid and what was paid in the award to show breach of contract. If the carrier followed the rules before and after appraisal then there is a basis for dismissing the policyholder’s suit. The policyholder then filed suit against State Farm for breach of contract without first participating in the appraisal process.
Isn’t it a violation of his constitutional right to trial by jury if a bad award comes back and he is stuck with it? Homeowners moved to dismiss the motion and filed counterclaims for breach of contract and vexatious refusal. Judge Boyle granted the judgment on breach of contract, common law bad faith, and some claims under statutory bad faith and DTPA. However, citing Graber, the court found that the policyholder was not barred from litigating his breach of contract claim using other evidence.
However, it is not fair to dismiss every case out of hand simply because, after years of poor claims handling by the carrier, one of the parties invokes appraisal. In states where appraisal clauses are not mandated, but the insurance company inserts an appraisal clause into the contract, then the insurance company has permissively inserted that clause.
If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. The court found a fact issue on causes of action based upon the Texas Prompt Payment Act.4 More importantly, the court held that paying an appraisal award is no defense for the insurance company on Texas Prompt Payment Act damages. The policyholder pointed out that damage in the award was greater than damages initially offered by State Farm. As such, the insurance company should never be able to walk away from an award in favor of the policyholder, even if the policyholder invoked appraisal.
In doing so the court clarified the true holdings in Breshears and Higginbotham,5 and didn’t dismiss all extra-contractual causes of action simply because breach of contract was dismissed.
Setting aside the difference in what was paid, the policyholder argued that State Farm minimized the scope at the beginning of the claim constituted separate evidence of breach of contract and had nothing to do with the difference between what was paid and what was awarded. Having denied the summary judgment on breach of contract, the court also denied summary judgment as to all of the policyholder’s bad faith extra-contractual claims.




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