LAW AND PROCEDURE Table of Contents.doc
I. An Introduction to the Appraisal Process
A. Author's Perspective
B. History
i. Legislative and Judicial Developments
C. Appraisal as Distinct from Arbitration
II. Circumstances Warranting Appraisal
A. Disagreement Necessary
B. Appraisal where there are Questions of Liability or Coverage
C. Cost, Time, and Other Considerations
i. Cost
ii. Time Considerations
iii. Other Considerations
iv. Bankruptcy
v. Multiple Policies
D. In Actions Against Agents and Brokers
E. In Actions Involving Third Parties
III. Scope of the Issues Covered by the Appraisal Clause
A. Appraisers May Not Exceed Their Commission
B. Appraisal of "Loss and Value" to Property as well as Economic Loss and Other Claims
C. Valued Policies and a Total Loss
D. Issues of Scope of Loss, Causation, and Coverage
i. Scope or Extent of Loss
ii. Issues of Causation
iii. Issues of Coverage
E. Issues of Bad Faith
F. The Loss Settlement Provision
G. The Suit Against Us Provision
IV. Issues of Waiver and Estoppel
A. Waiver of the Appraisal Provision by Claim Denial, Litigation, or Repair
B. Waiver of Policy Provisions or Defenses to Liability by Submission to Appraisal
C. Reservation of Rights to Litigate Liability
D. Waiver of Right to Participate by Non-appointment or Non-participation
E. Waiver of Breach of Contract Claim by Acceptance of Award
F. Waiver of Objection to Appraisal by Participation
G. Waiver by Failure to Notify of Right to Participate in Mediation
H. Waiver of Right to Object to Appraiser
V. Timing Issues
A. When Appraisal Should Be Demanded
B. Responding to the Demand for Appraisal
C. The Order of Priority Between Appraisal and Litigation
D. Timing of the Award
E. When the Loss is Payable
F. Time to Bring Suit
G. Competing Demands
H. Compliance with Post-Loss Policy Provisions
I. Moving to Set Aside an Award
VI. The Mechanics of Demanding an Appraisal
A. The Demand
B. The Appraisal Agreement
i. Agreement to Appraise
ii. Agreement to Select Umpire
C. Remedies if Appraisal is Wrongfully Refused
D. Failure of Appraisal
VII. The Appraisers
A. Qualifications
B. Disinterested but Permissibly Predisposed
i. Generally
ii. Public Adjusters
iii. Building Damage Estimators
C. Fees
D. Replacement of an Appraiser
E. Liability of an Appraiser
F. Expenses for Consultants Hired by the Appraiser
VIII. The Umpire
A. The Umpire's Qualifications, Duties, and Scope of Authority
i. Qualifications
ii. Duties and Responsibilities
iii. The Umpire's Scope of Authority
B. Fees
C. Written Agreement with the Umpire
D. Court Appointment of the Umpire
E. When to Appoint the Umpire
IX. The Appraisal
A. Generally
B. Consultation Necessary
C. Determining Value
i. Actual Cash Value: The Broad Evidence Rule and Other Formulations
ii. Replacement Value Policies
D. Outside Experts
E. Notice, Adjournments, and Cancellations
F. Hearings and Inspections
X. The Appraisal Award
A. The Appraisal Award Generally
B. Form and Substance of the Award
C. Recovery of Interest Upon the Award
D. The Binding Nature of the Appraisal Award - Setting It Aside
E. Enforcing the Award
F. Recovery of Attorneys' Fees
XI. Mortgagees and Loss Payees
A. When the Award is Binding Upon a Mortgagee
B. Rights of the Mortgagee to Demand Appraisal
C. Borrower as Third-Party Beneficiary
D. Rights of a Loss Payee
E. Rights of Assignees
XII. Appraisal Under the Standard Flood Insurance Policy
A. The Provision
B. Appraisable Issues Under the NFIP Policy
C. Timing Issues
i. Time to Invoke Appraisal
ii. In Relation to Litigation and FEMA Appeal
iii. Time to Pay on an Award
iv. Time to Deny Appraisal
D. Qualifications of the Appraisers and Umpire