How do judges appoint an umpire in an appraisal? Most appraisal clauses say words to this effect:
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.
No instructions are provided about the qualifications or process the court should consider to determine how to select an umpire. “Heads, I Win, and Tails You Lose! Can the Umpire to an Appraisal Be Selected By a Coin Toss?” discussed an example of an alternative approach where the policy called for the flip of a coin with greater procedures for that than the standard language provides a judge.
A recent Order from a property insurance case in Louisiana involved this situation where a court had to determine the umpire.1 The relevant facts noted:
Prior to the filing of this lawsuit, the parties selected their initial appraisers when Defendant demanded an appraisal of the loss. Plaintiff designated Matthew Addison as Plaintiff’s appraiser, and Defendant designated Ronald West as its appraiser. After the filing of this lawsuit, Plaintiff designated Mike Deckelman as Plaintiff’s appraiser. The parties’ appraisers were unsuccessful in jointly selecting an umpire in accordance with the Policy. Accordingly, the parties filed the instant Joint Motion to seek appointment of an umpire by the Court.
The parties did not, however, submit proposed a list of proposed umpires with their Joint Motion. Accordingly, the Court ordered the parties to submit separate lists of no more than three candidate umpires and their respective CVs for the Court’s consideration. The Court also informed the parties it was not required to appoint an umpire from those proposed candidates.
As ordered, the parties submitted separate lists of proposed umpires for potential appointment. Plaintiff proposed the appointment of Joel Moore, Cade Cole, or Jeffery Jennings. Defendant proposed the appointment of Bruce Authement, Edward C. Bergeron, or Felix J. Turner. The parties did not submit any additional filings challenging the qualifications of any of the proposed umpires submitted for the Court’s consideration.
The policyholder’s nomination of umpires stated:
1. Joel Moore
Qualifications: Mr. Moore has been appointed by various United States District Courts to serve as Umpire on multiple occasions. He is a certified appraiser and umpire for complex large losses in multiple jurisdictions.
2. Cade Cole
Qualifications: Mr. Cole has been appointed by the United States District Court for Western Louisiana as Special Master for Hurricane Cases. Additionally, he serves as Special Master for Hurricane cases in various state courts throughout Louisiana.
3. Jeffery Jennings
Qualifications: Mr. Jennings has served as umpire for complex large losses in multiple jurisdictions. Mr. Jennings’ extensive background in construction, engineering, insurance claims, and appraisals, makes him unique in his level of expertise as an umpire.
I was particularly interested in the CV of Joel Moore, which indicated that he “coauthored the curriculum for the Certified Insurance Appraiser (CIA) and Certified Insurance Umpire (CIU) professional designation offered through the National Association of Independent Insurance Adjusters and Society of Registered Professional Adjusters.” I was not aware that such an appraisal and umpire certification program existed.
The court made the following selection with the following analysis:
Having reviewed the submission of the parties, the Court will appoint Cade Cole as the appraisal umpire for the purposes of the instant insurance claim dispute. Federal courts ‘routinely have appointed Cade Cole as deputy special master and recognized him as a ‘neutral’ in Hurricane Laura and Hurricane Delta cases.’ Temple Baptist Church of Ruston, Inc. v. Emps. Mut. Cas. Co., No. 21-04324, 2022 WL 17070555, (W.D. La. Nov. 2, 2022)… The Court takes judicial notice of this fact, and finds that ‘Mr. Cole is well-qualified for the position of umpire and so selects him to fulfill that role in this case.’…
If Mr. Cole declines to serve as umpire in this matter, then the Court selects Joel Moore as umpire. His resume demonstrates that he is well-qualified for the position and would likewise serve as a neutral umpire.
As discussed above, although both Mr. Cole and Mr. Moore were proposed by the Plaintiff, the Court has no reason to suggest that both can fulfill this role in a fair, neutral and impartial manner.
In this case, the judge appointed an umpire who had been appointed before as an umpire and as a special master on a number of other cases. My assumption is that the judge believed that Cade was considered fair based on those qualifications.
The interesting choice was Moore, who was selected as the alternative. The policyholder suggested this candidate, who is obviously well credentialed but has significant experience working for insurance companies. His CV listed the following as his accomplishments:
2019 – 2021 National President National Association of Independent Insurance Adjusters (NAIIA)
2019 – 2021 National President Society of Registered Professional Adjusters (RPA)
Member – Louisiana Property and Casualty Insurance Commission
Claims and Litigation Management Alliance (CLM)
Faculty Member – School of Property Claims CLM Claims College
Advisory Council Member – California Earthquake Authority Disaster Preparedness
I am certain that these leadership, experience, and teaching roles must have impressed the judge when comparing Joel Moore’s credentials to the other very fine candidates.
The quest to predict a judge’s choice when selecting an umpire can often feel like trying to guess the winning lottery numbers – it’s anybody’s guess. Doing homework on the court’s past decisions can give you an edge, kind of like studying past lottery numbers, but let’s be honest, it’s still a bit of a shot in the dark.
My considered opinion is that all parties involved in an appraisal should try very hard to put their heads together to agree on someone they both think will be fair. It’s a bit like choosing a movie everyone wants to watch – a delicate balance of interests and preferences. If you don’t, well, brace yourselves. You might just end up with the judicial equivalent of a surprise movie pick – and who knows? You could be watching a courtroom drama, a legal thriller, or even a comedy, depending on whom the judge selects as the umpire. So, it’s probably best to agree on someone beforehand unless you’re feeling particularly lucky or adventurous.
Thought For The Day
The only sure thing about luck is that it will change.