Preview
Electronically Filed
2/26/2024 11:38 AM
Superior Court of California
County of Stanislaus
Bart Barringer CSB #131756 Clerk of the Court
Nicholas J. Loncarich CSB #309097 By: Yukari Williams, Deputy
LAW OFFICES OF BART BARRINGER
2 P.O. Box 3049
Modesto, CA 95353
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Telephone: (209) 544-9555
Facsimile: (209) 544-9875
Email: bbarrinqer@mblaw.com
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Attorneys for Petitioner,
JANICE ADAMS
SUPERIOR COURT OF CALIFORNIA. COUNTY OF STANISLAUS
I0 JANICE ADAMS Case No. CV-24-001542
MEMORANDUM OF POINTS AND
Petitioner, AUTHORITIES IN SUPPORT OF
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PETITION TO APPOINT NEUTRAL
VS.
I3 APPRAISAL UMPIRE
I4 NATIONWIDE MUTUAL INSURANCE
COMPANY, Date: March 28, 2024
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Time: 8:30 a.m.
l6 Respondent Dept: 21
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I. NATURE OF RELIEF SOUGHT
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Respondent, NATIONWIDE MUTUAL INSURANCE COMPANY, is an
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insurance company authorized and licensed to engage in business in the State of
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22 California. Respondent issued to Petitioner a homeowner's insurance policy, Policy
23 Number 7204HR124612, ("Policy"). The Policy covers Petitioner's home located at
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1804 7'" Street, Hughson, CA ("Property"), for losses to Petitioner's dwelling and
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personal property contents contained therein.Pursuant to the terms and conditions
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as set forth in the Policy of insurance, Petitioner has claimed a property loss as a
28 result of an alleged covered event, stemming from flood and water damages which
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6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT
NEUTRAL APPRAISAL UMPIRE
occurred on or about March 7, 2023.
A dispute has arisen between the parties in regards to the amount of the loss
sustained by Petitioner at her Property, the extent of the loss and damages. the
appropriate amount of repair and construction costs. the scope of repairs and
construction required. and validity of damage and repair estimates that have been
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7 exchanged between the parties.
ll. ARGUMENT
A. The Appraisal Clause Provision of the Policy is Valid and Enforceable
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The California Code of Civil Procedure provisions relating to arbitration apply
to appraisals under insurance policies. [Code Civ. Proc., § 1280 (a); Jefferson Ins.
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Co. v. Superior Court, 3 Cal. 3d 398, 401, 90 Cal. Rptr. 608, 475 P.2d 880 (1970);
l4 Appalachian Insurance Co. v. Rivcom Corp, 130 Cal. App. 3d 818, 824, 182 Cal.
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Rptr. 11 (2d Dist. 1982)]
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The Policy contains an Appraisal Clause which provides for a process of
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resolving disputes arising from the amount of any loss incurred by Petitioner, such
l9 as the dispute described above. Specifically, the Policy States:
F. Appraisal
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lf you and we {all to agree 0n the amount of loss. either may demand an appraisal of the
loss, In this event, each part5! will choose a competerxt and impartial appraiser within 2O
2|
days after receiving a written request from the other. The two appraisers will choose an
umpire. If they cannot agree upori an umpire within 15 days. you or we may request that
22 the choice be made by a judge of a conirt of recorci in the state where the "residence
premises." is located. The appraisers will separately set the amount of loss. If the appraisers
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submit a written report of an agreement to us. the amount agreed upon will be the
amount of loss. If they fail to agree. they will submit their differences to the umpire. A
decision agreed to by any two will set the amount of loss'
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Each party will:
1. Pay its own appraiser; and
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2. Bear the other expenses of the appraisal and umpire equally. except that any fees for
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expert witnesses or attorneys will be paid by the party who hires them.
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6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION T0 APPOINT
NEUTRAL APPRAISAL UMPIRE
Neither the umpire nor the appraisers will have a financial Interest that is conditioned on
tho outcome of the specific matter for which they are called lo serve.
This is not a provision providing for or requiring arbitration.
The appraisers and umpire are only authorized to determine the "actual cash value".
replacement cost, or cost to repair the property that is the subject of the claim. They are
not authorized to determine coverage. exclusions. Conditions. forfeiture provisions.
conditions precedent. or any other contractual issues that may exist between you and us.
The appraisal award cannot be user! by either you or us in any proceeding concerning
coverage, exclusions. forfeiture provisions. conditlons precedent. or other contractual
issues. However. once contractual liability i5 admitterl or determined. the appraisal awartl
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is binding upon you and us. This appraisal process and authority granted to the appraisers
and the umpire can only be expanded or modified by written mutual consent signed by
6 yeti and us.
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Appraisal provisions, similar to those set forth above in the Policy of
insurance, have long been recognized and enforced by California courts for at least
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100 years. [Old Sauce/ito Land & Dry-Dock Co. v. Commercial Union Assur. Co., 66
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Cal. 253. 258, 5 P. 232 (1884); Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 737—738
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(C.C.A. 9th Cir. 1937)]
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B. The Court is Authorized to Select an Umpire when the Parties'
M Appraisers are Unable to Agree
l5 Petitioner invoked the Appraisal Clause on October 11, 2023, and Petitioner
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and Respondent have since each made their selections of their own Appraisers.
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However, the designated Appraisers cannot agree on a neutral Umpire, and the
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l9 Appraisal Clause process cannot proceed, and this matter cannot be resolved, until
20 a neutral Umpire is named.
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Courts must enforce the method of selecting arbitrators set forth in an
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insurance contract. Khorsand v. Liberty Mutual Fire Ins. Co., 20 Cal. App. 5th 1028,
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1038, 230 Cal. Rptr. 3d 89 (2d Dist. 2018); Cal. Code Civ. Pro. § 1281.6; Atlas
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25 Plastering, Inc. v. Superior Court, 72 Cal. App. 3d 63, 70, 140 Cal. Rptr. 59 (lst Dist.
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1977). When an agreement provides that each party shall select an appraiser, and
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that the two appraisers shall select a third, that method of selection must be utilized
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6901—PL- MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT
NEUTRAL APPRAISAL UMPIRE
and enforced. Khorsand v. Liberty Mutual Fire Ins. Co., 20 Cal. App. 5th 1028, 1038,
2 230 Cal. Rptr. 3d 89 (2d Dist. 2018).
3
Here, the Court is empowered to appoint a neutral Umpire when the parties
cannot agree, pursuant to the Policy terms and conditions, as well as the legal
authorities described above.
6
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The Appraisal provision in the insurance Policy underlying this action provides
8: a means for the parties to resolve disputes regarding the value of a loss at a lower
cost to the parties than those associated with litigation, and in a manner that will
10
avoid an unnecessary burden on the judicial system. Similarly, the terms of the
Policy concerning the Court's appointment of a neutral Umpire when the parties are
l2
l3 unable to agree provides a means for the parties to resolve such a dispute and
l4 move the matter forward towards a resolution under the Appraisal clause.
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Given the above, petitioner respectfully requests that the Court designate and
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appoint a neutral Umpire to conduct the Appraisal Clause proceedings pursuant to
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the Policy of the parties.
19 ill. PETITIONER'S SELECTION OF UMPIRES
20 In light of the foregoing, Petitioner respectfully submits the following
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individuals for the Court's consideration as neutral Umpire: Troy Willis, Leland
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Coontz, and Corey M. Locke. All three potential umpires are available and qualified
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to perform the arbitration of this Appraisal.
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6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT
NEUTRAL APPRAISAL UMPIRE
DATED: February 26, 2024 LAW OFFICES OF BART BARRINGER
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By
NICH'OLAS J. LONCA'RICH
Attorney for Petitioner
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6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT
NEUTRAL APPRAISAL UMPIRE
Preview
Electronically Filed 2/26/2024 11:38 AM Superior Court of California County of Stanislaus Bart Barringer CSB #131756 Clerk of the Court Nicholas J. Loncarich CSB #309097 By: Yukari Williams, Deputy LAW OFFICES OF BART BARRINGER 2 P.O. Box 3049 Modesto, CA 95353 3 Telephone: (209) 544-9555 Facsimile: (209) 544-9875 Email: bbarrinqer@mblaw.com 5 Attorneys for Petitioner, JANICE ADAMS SUPERIOR COURT OF CALIFORNIA. COUNTY OF STANISLAUS I0 JANICE ADAMS Case No. CV-24-001542 MEMORANDUM OF POINTS AND Petitioner, AUTHORITIES IN SUPPORT OF 12 PETITION TO APPOINT NEUTRAL VS. I3 APPRAISAL UMPIRE I4 NATIONWIDE MUTUAL INSURANCE COMPANY, Date: March 28, 2024 I5 Time: 8:30 a.m. l6 Respondent Dept: 21 _ I7 18 I. NATURE OF RELIEF SOUGHT l9 Respondent, NATIONWIDE MUTUAL INSURANCE COMPANY, is an 20 insurance company authorized and licensed to engage in business in the State of 21 22 California. Respondent issued to Petitioner a homeowner's insurance policy, Policy 23 Number 7204HR124612, ("Policy"). The Policy covers Petitioner's home located at 24 1804 7'" Street, Hughson, CA ("Property"), for losses to Petitioner's dwelling and 25 personal property contents contained therein.Pursuant to the terms and conditions 26 27 as set forth in the Policy of insurance, Petitioner has claimed a property loss as a 28 result of an alleged covered event, stemming from flood and water damages which _1_ 6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT NEUTRAL APPRAISAL UMPIRE occurred on or about March 7, 2023. A dispute has arisen between the parties in regards to the amount of the loss sustained by Petitioner at her Property, the extent of the loss and damages. the appropriate amount of repair and construction costs. the scope of repairs and construction required. and validity of damage and repair estimates that have been 6 7 exchanged between the parties. ll. ARGUMENT A. The Appraisal Clause Provision of the Policy is Valid and Enforceable l0 The California Code of Civil Procedure provisions relating to arbitration apply to appraisals under insurance policies. [Code Civ. Proc., § 1280 (a); Jefferson Ins. l2 13 Co. v. Superior Court, 3 Cal. 3d 398, 401, 90 Cal. Rptr. 608, 475 P.2d 880 (1970); l4 Appalachian Insurance Co. v. Rivcom Corp, 130 Cal. App. 3d 818, 824, 182 Cal. 15 Rptr. 11 (2d Dist. 1982)] i6 The Policy contains an Appraisal Clause which provides for a process of l7 resolving disputes arising from the amount of any loss incurred by Petitioner, such l9 as the dispute described above. Specifically, the Policy States: F. Appraisal 20 lf you and we {all to agree 0n the amount of loss. either may demand an appraisal of the loss, In this event, each part5! will choose a competerxt and impartial appraiser within 2O 2| days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upori an umpire within 15 days. you or we may request that 22 the choice be made by a judge of a conirt of recorci in the state where the "residence premises." is located. The appraisers will separately set the amount of loss. If the appraisers 23 submit a written report of an agreement to us. the amount agreed upon will be the amount of loss. If they fail to agree. they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss' 24 Each party will: 1. Pay its own appraiser; and 25 2. Bear the other expenses of the appraisal and umpire equally. except that any fees for 26 expert witnesses or attorneys will be paid by the party who hires them. //l 27 28 /// _ 2 ... 6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION T0 APPOINT NEUTRAL APPRAISAL UMPIRE Neither the umpire nor the appraisers will have a financial Interest that is conditioned on tho outcome of the specific matter for which they are called lo serve. This is not a provision providing for or requiring arbitration. The appraisers and umpire are only authorized to determine the "actual cash value". replacement cost, or cost to repair the property that is the subject of the claim. They are not authorized to determine coverage. exclusions. Conditions. forfeiture provisions. conditions precedent. or any other contractual issues that may exist between you and us. The appraisal award cannot be user! by either you or us in any proceeding concerning coverage, exclusions. forfeiture provisions. conditlons precedent. or other contractual issues. However. once contractual liability i5 admitterl or determined. the appraisal awartl 5 is binding upon you and us. This appraisal process and authority granted to the appraisers and the umpire can only be expanded or modified by written mutual consent signed by 6 yeti and us. 7 Appraisal provisions, similar to those set forth above in the Policy of insurance, have long been recognized and enforced by California courts for at least 9 I 100 years. [Old Sauce/ito Land & Dry-Dock Co. v. Commercial Union Assur. Co., 66 10 Cal. 253. 258, 5 P. 232 (1884); Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 737—738 l2 (C.C.A. 9th Cir. 1937)] l3 B. The Court is Authorized to Select an Umpire when the Parties' M Appraisers are Unable to Agree l5 Petitioner invoked the Appraisal Clause on October 11, 2023, and Petitioner 6 and Respondent have since each made their selections of their own Appraisers. l7 However, the designated Appraisers cannot agree on a neutral Umpire, and the l8 l9 Appraisal Clause process cannot proceed, and this matter cannot be resolved, until 20 a neutral Umpire is named. 2| Courts must enforce the method of selecting arbitrators set forth in an 22 insurance contract. Khorsand v. Liberty Mutual Fire Ins. Co., 20 Cal. App. 5th 1028, 23 1038, 230 Cal. Rptr. 3d 89 (2d Dist. 2018); Cal. Code Civ. Pro. § 1281.6; Atlas 24 25 Plastering, Inc. v. Superior Court, 72 Cal. App. 3d 63, 70, 140 Cal. Rptr. 59 (lst Dist. 26 1977). When an agreement provides that each party shall select an appraiser, and 27 that the two appraisers shall select a third, that method of selection must be utilized 28 -3- 6901—PL- MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT NEUTRAL APPRAISAL UMPIRE and enforced. Khorsand v. Liberty Mutual Fire Ins. Co., 20 Cal. App. 5th 1028, 1038, 2 230 Cal. Rptr. 3d 89 (2d Dist. 2018). 3 Here, the Court is empowered to appoint a neutral Umpire when the parties cannot agree, pursuant to the Policy terms and conditions, as well as the legal authorities described above. 6 7 The Appraisal provision in the insurance Policy underlying this action provides 8: a means for the parties to resolve disputes regarding the value of a loss at a lower cost to the parties than those associated with litigation, and in a manner that will 10 avoid an unnecessary burden on the judicial system. Similarly, the terms of the Policy concerning the Court's appointment of a neutral Umpire when the parties are l2 l3 unable to agree provides a means for the parties to resolve such a dispute and l4 move the matter forward towards a resolution under the Appraisal clause. l5 Given the above, petitioner respectfully requests that the Court designate and l6 appoint a neutral Umpire to conduct the Appraisal Clause proceedings pursuant to l7 the Policy of the parties. 19 ill. PETITIONER'S SELECTION OF UMPIRES 20 In light of the foregoing, Petitioner respectfully submits the following 21 individuals for the Court's consideration as neutral Umpire: Troy Willis, Leland 22 Coontz, and Corey M. Locke. All three potential umpires are available and qualified 23 to perform the arbitration of this Appraisal. 24 25 /// 26 /// 27 /// 28 _4_ 6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT NEUTRAL APPRAISAL UMPIRE DATED: February 26, 2024 LAW OFFICES OF BART BARRINGER 2 3 By NICH'OLAS J. LONCA'RICH Attorney for Petitioner 7 I0 l2 l3 l4 l5 16 l7 I8 l9 20 2| 22 23 24 25 26 27 28 -5- 6901-PL- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO APPOINT NEUTRAL APPRAISAL UMPIRE