Table of Contents
An Introduction To The Appraisal Process
Author’s Perspective
History 6
Legislative Judicial
Appraisal as Distinct From Arbitration 21
Circumstances Warranting Appraisal
Disagreement Necessary 41
Appraisal Where There Are Questions
of Liability or Coverage 48
Cost, Time and Other Considerations 58
Cost 58
Time Considerations 60
Other Considerations 62
Bankruptcy 65
Multiple Policies 66
In Actions Against Agents and Brokers 67
In Actions Involving Third Parties 68
Scope of the Issues Covered by The Appraisal Clause
Appraisers May Not Exceed Their
Commission 69
Appraisal of “Loss and Value” to Property as well as Economic Loss and Other Claims
Valued Policies and a Total Loss 82
Issues of Scope of Loss, Causation and Coverage 88
Scope or Extent of Loss 88
Issues of Causation 108
Issues of Coverage 142
Issues of Bad Faith 162
The Loss Settlement Provision 171
The Suit Against Us Provision 173
Issues of Waiver and Estoppel
Waiver of the Appraisal Provision by Claim Denial,
Litigation or Repair 176
Waiver of Policy Provisions or Defenses to Liability by Submission to Appraisal
Reservation of Rights to Litigate Liability 227
Waiver of Right to Participate by Non-appointment
or Non-participation 230
Waiver of Breach of Contract Claim by Acceptance of Award 232
Waiver of Objection to Appraisal by Participation 234
Waiver by Failure to Notify of Right to Participate in Mediation 235
Waiver of Right to Object to Appraiser 240
Timing Issues .
When Appraisal Should Be Demanded 241
Responding to the Demand for Appraisal 279
The Order of Priority Between Appraisal
and Litigation
Timing of the Award 299
When the Loss is Payable 301
Time to Bring Suit 306
Competing Demands 316
Compliance With Post-Loss Policy Provisions 324
Moving To Set Aside An Award 327
The Mechanics of Demanding an Appraisal
The Demand 332
The Appraisal Agreement 336
Agreement to Appraise 336
Agreement to Select Umpire 341
Remedies if Appraisal is Wrongfully Refused
Failure of Appraisal 364
The Appraisers
Qualifications 374
Disinterested but Permissibly Predisposed 401
Generally 401
Public Adjusters 404
Building Damage Estimators 411
Fees 414
Replacement of an Appraiser 420
Liability of an Appraiser 421
Expenses for Consultants Hired by The Appraiser
The Umpire
A] The Umpire’s Qualifications, Duties and Scope of Authority 426
1.Qualifications 426
2. Duties and Responsibilities 434
3. The Umpire’s Scope of Authority 443
B] Fees 449
C] Written Agreement with the Umpire 452
D] Court Appointment of the Umpire 454
E] When to Appoint the Umpire 460
IX The Appraisal
A] Generally 464
B] Consultation Necessary 469
C] Determining Value 476
1. Actual Cash Value: The Broad Evidence Rule
and Other Formulations 476
2. Replacement Value Policies 487
D] Outside Experts 495
E] Notice, Adjournments and Cancellations 498
F] Hearings and Inspections 500
The Appraisal Award
A] The Appraisal Award Generally 510
B] Form and Substance of The Award 513
C] Recovery of Interest Upon The Award 528
D] The Binding Nature of The Appraisal
Award - Setting It Aside 540
E] Enforcing the Award 588
F] Recovery of Attorneys’ Fees 595
XI Mortgagees and Loss Payees
A] When The Award is Binding
Upon a Mortgagee 608
B] Rights of the Mortgagee
to Demand Appraisal 614
C] Borrower as Third-Party Beneficiary 616
D] Rights of a Loss Payee 617
E] Rights of Assignees 619 424
The Appraisal
Generally 464
Consultation Necessary 469
Determining Value 476
Actual Cash Value: The Broad Evidence Rule and Other
Formulations 476
Replacement Value Policies 487
Outside Experts 495
Notice, Adjournments and Cancellations 498
Hearings and Inspections 500
The Appraisal Award
The Appraisal Award Generally 510
Form and Substance of The Award 513
Recovery of Interest Upon The Award 528
The Binding Nature of The Appraisal
Award - Setting It Aside 540
Enforcing the Award 588
Recovery of Attorneys’ Fees 595
XI Mortgagees and Loss Payees
When The Award is Binding Upon a Mortgagee 608
Rights of the Mortgagee to Demand Appraisal 614
Borrower as Third-Party Beneficiary 616
Rights of a Loss Payee 617
Rights of Assignees 619
XII Appraisal Under the Standard Flood Insurance Policy
The Provision 620
Appraisable Issues Under the NFIP Policy 624
Timing Issues 630
Time to Invoke Appraisal 630
In Relation to Litigation and
a FEMA Appeal 6 30
Time to Pay On An Award 631
Time to Deny Appraisal 631
Qualifications of the Appraisers and
Umpire 633
The Proof of Loss 6 35
Non-binding on the Insured 638
APPENDIX A Forms - Index 639
Section Form # Pages
VII. Notice of Petition, Petition Affirmation and Affidavit to Appoint Umpire in the
state of New York 4,5,6, 7 675, 677, 680,
684
IX Appraisal Award 1,2,3,4,5 687, 691, 693,
695, 698
X Jury Instructions- Trial Upon the Insurer’s Refusal to
Submit to Appraisal 1 704
Jury Instructions - Trial Upon the Insured’s Refusal to
Submit to Appraisal 2 707
Complaint seeking to
Set Aside an Appraisal Award 1 709
APPENDIX B Table of Cases 714
APPENDIX C Table of Statutes 781
APPENDIX D Table of Other Authorities 786
APPENDIX E Code of Ethics for Umpires
In Insurance Appraisals
Windstorm Insurance Network, Inc. 789
INDEX 807