Umpire Selection--Can a Neutral Umpire Really Be Selected?

I was in Dallas last Thursday on a hearing to select a "neutral umpire." My opposing counsel is Kristin Cummings. In my preparation for the hearing, I noted that she co-authored a paper, "The Devolution Of Appraisal In Insurance Disputes," regarding current topics on the selection of umpires.

She noted in part:

Historically, appraisal provided a method for an insured and insurer to efficiently resolve a dispute over the amount of a covered loss when both parties agreed about the existence of coverage. It was generally a quick, inexpensive and amicable process.

Unfortunately, that’s no longer the case. The appraisal process has devolved into a nonjudicial dispute resolution process rife with abuse and manipulation by individuals — other than the insured — with a monetary incentive to engage in and prolong the process.

...

Most policies require that each appraiser be “impartial” (sometimes “disinterested”). While appointed appraisers will always attest to their impartiality, the practical reality of appraisals today is that seldom does an appraiser disagree with the position of the party who appointed him.

Not surprisingly, the insured’s appraiser almost always agrees with the insured’s position. Likewise, the insurer’s appraiser almost always agrees with the insurer’s position. Does this mean that the appraisers are not impartial? Not necessarily.

However, it does indicate that appraisers — though perhaps still “impartial” as defined by the policy — are now essentially advocates for their client’s positions in a prelitigation dispute resolution process.

With almost no appraisals resolved by the appraisers themselves, the appointment of an umpire is a virtual certainty. Most policies specify that if the appraisers cannot agree on the amount of loss, they are to work together to agree on an umpire. Historically, there had been a good faith effort by the two appraisers to reach agreement on a neutral umpire. Or, if such agreement couldn’t be reached, they would jointly ask a judge in a local court to appoint an umpire of its choosing.

That has also changed. Now, it’s a race to the courthouse to get a favorable umpire appointed, often unilaterally and without proper notice to the other party. It is not uncommon for a party to file a motion to appoint an umpire without notifying the other side that it intends to do so. In many jurisdictions, a court can grant such a motion before the other side even has had a chance to respond.

As a result, an umpire in a specific dispute is increasingly not a person agreed to by the appraisers but rather the name submitted by one side in its unilateral motion to appoint an umpire. While this appointed umpire might also be “impartial” as defined by the policy, it should not be surprising that the umpire eventually sides with the party who won the race to the courthouse and obtained their appointment. (emphasis added)

I found this paper refreshingly honest; insurance defense attorneys stated their opinion in public rather than for insurance company representatives alone. I have also recently noted appraisal problems in Regulating the Appraisal Industry---Is it Time?, The Current State of Appraisal, and How Mutual Terms Can Prevent Appraisal and Ethics of Appraisers---Just Wishful Thinking?

Is any umpire truly neutral? I am certain that many umpires answer this question with an emphatic "yes."

Yet, this question is asked frequently by attorneys and public adjusters when they ask, "what is so and so like as an umpire?" or "who would you suggest as an umpire in this case?" I usually ask about the case and, especially, the appraisers already selected before answering the question. Then, I do what I expect everybody else does but is afraid to admit, I determine who may be a favorable umpire, weed out those that will probably favor the insurance company, and finally note those who appear neutral. But my answer is always speculation. 

Some umpires are notorious fifty-fifty referees. That is not neutral. That is cowardly.

Some umpires are very knowledgeable about a given area of construction or type of damage. But preconceived bias and opinions are sometimes wrong. It is hard to get a person who knows he is right to admit when he is wrong or that someone else may understand the issue a little better. It is hard to teach humility during appraisal debate.

How did the Dallas judge select the umpire during the hearing? She did the smart thing by not selecting an umpire nominated by either party. Obviously, a party might suggest a panelist with an outcome oriented agenda. By picking one of those nominated, the other side would naturally believe the matter is already lost. The judge appointed a retired judge with experience in appraisals and mediations.

Any randomly selected umpire will have some bias. That is why it is important for parties to have a dialogue before the selection by a court. As the old adage teaches, it is sometimes better to stay with the devil you know.

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Comments (5) Read through and enter the discussion with the form at the end
Don Phillips - April 9, 2013 1:21 PM

Chip:

As usual your post on the always evolving appraisal process was very enlightening. An umpire has no business accepting an appointment if he/she can't answer the question of neutrality in the positive. In fact I believe that a prospective umpire should make all parties aware of anything that may even give the appearance of jeopardizing their neutrality. I would also point out that my experience is most policies don't contain language requiring an appraiser to be impartial. Typically they only require the appraiser to be competent while requiring the umpire to be impartial. I also would say that a good number of the umpire appointments I get are worked out by the two appraisers without requiring my participation. What is rare is getting a unanimous agreement on an award once an umpire is brought in to settle the appraisers differences.

Frank Zigo - April 14, 2013 5:45 AM

Chip,

I think part of the problem with finding a neutral umpire is that umpires also act as appraisers. Just as oil and water don't mix, I don't see how an umpire can state he is unbiased and neutral when his/her next appointment is acting as an appraiser in another case.

I agree with you that some umpires are 50/50, they have no business being umpires, they are more concerned by being chosen the next time by either party.

mikepollak - June 25, 2013 9:13 AM

very good post. as an appraiser, and an umpire, i see this often. sadly, i see too many instances where the umpire is unduly influenced by his/her appraisal position and/or who recommended him. the umpire is to be neutral. a 1 paragraph resume should be submitted for each recommended umpire, including his acquaintancesip and experience with the parties.
just to air a gripe, i should also mention the umpire should ONLY deal with the issues in dispute. the items agreed on already are not his concern. i had an umpire on an auto case who devalued a car for mileage, when the mileage issue was agreed on already by us appraisers.
as far as not being biased, everyone has a prejudice or two. we have to be fair to the item in dispute, not our own egos.

James Reedy - July 3, 2013 10:47 AM

Thank you for your article. Just recently throwing my hat in the umpire arena, I have discovered, when interviewed for selection, I have been rejected because I have no reviews under my belt. I believe an umpire should have enough understanding of the issue to be able to make a valid selection of the appraisals in front of them, enough knowledge of insurance terms and policy to know if the coverage is there and fair. It is not my job to reinterpret the appraisals but to determine which is fair and appropriate. Every interview I have had has been one of explaining their side, before they ask me even what I would charge. Matter of fact that question hasn't been asked yet. I was chairman of a youth football league of over 2000 players, guaranteed was some conflict after each and every game. Yelling was the way the problem was brought to me. I calmly would listen and then tell them I would listen to the other side before making my determination, based on rules set out by the program. I was very good at it and almost every time was thanked by both parties. I am looking forward to being chosen and will continue to read articles like yours to enlighten me.
Thank you,
James Reedy

Contents Claims - August 19, 2013 4:22 PM

Chip,

I just ran into this post while searching for a related topic, so excuse my late post.

Regarding the well written paper by Kristen Cummings, I did note that she indicated that most appraisal clauses require the Appraisers to be "impartial". However, from my experience, I believe that the "impartial" credential is typically reserved for the "Umpire", while the Appraisers must be "disinterested". This is of course in addition to the obvious credential of "competence".

This is noteworthy, as "disinterested" and "impartial" have distinctive meanings, and the sum of those differences actually define the credential of an Appraiser quite well.

Appraisers are to be "disinterested", but not "impartial".

One of the benefits in the Tripartite system in which Appraisal follows is the ability for Appraisers to have some amount of predisposition about the issues/disputes in favor of the parties who appointed them, while maintaining their disinterest.

Regarding the actual substance of your post, referring to the ever increasing importance in Umpire selection and the expanding conscience of the stricter credentials (for good reason) submitted upon Umpires, I cannot really add much to your post other than that I simply concur strongly to what your have written.

Best Regards,

Thomas Di Sieno
Digitory Solutions, Inc.
www.digitorysolutions.net

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