Opinion
No. CV 07-4024993S
August 23, 2011
The genesis of this case is water damage as the result of a pipe that burst at the plaintiff's home in Clinton, Connecticut on Saint Patrick's Day, 2005. The plaintiff made a claim under her homeowner's policy of insurance with the defendant, but the parties have been unable to resolve the claim on their own. The policy provides, inter alia, that if the homeowner and insurer "fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, [either party] will request that the choice be made by a judge of the court of record in the state where the resident's premises is located. The appraisers will separately set the amount of loss. If the appraisers 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 the loss."
Nearly two years after the loss, plaintiff's counsel, after concluding that the parties were unsuccessful in adjusting the amount of the loss on their own, wrote to the defendant's adjuster on March 14, 2007, requesting that an appraisal be convened. The plaintiff also filed the instant "application for order to proceed with arbitration."
It is worthy of only passing note that the contract between the parties does not use the word "arbitration." Nevertheless, the appraisal provision recited above clearly falls within the definition of "arbitration": "A mode of settling differences through the investigation and determination, by one or more persons selected for the purpose, of some disputed matter submitted to them by the contending parties for decision and award, in lieu of a judicial proceeding." Ballentine's Law Dictionary, Third Edition (1969) p. 89, quoting Crosby v. State Board of Hail, Ins., 113 Mont. 470, 129 P.2d 99. Thus, the plaintiff's "application for order to proceed with arbitration" is an appropriate way to ask the court to enforce the appraisal procedure set forth in the contract between the parties.
The defendant's principal concern is that it has not been provided with all of the information it feels it needs to make a determination of the amount that should be paid to the plaintiff pursuant to the policy. In particular, it seeks evidence concerning a January 24, 2004 water damage loss which, it contends, may overlap some of the claims being made by the plaintiff in connection with the March 17, 2005 water damage loss. The plaintiff, in turn, contends that it too is still owed discovery materials from the defendant, although she is ready to proceed with the appraisal process with or without those materials already in hand. Several years worth of procedural bickering has thus brought us all the way to August of 2011, some six and a half years after the loss being claimed by the plaintiff and four and a half years after the plaintiff brought the instant lawsuit in which she sought an order to compel the defendant to proceed with the appraisal process.
The language of the contract of insurance is unequivocal. It states that if the parties "fail to agree on the amount of loss, either may demand an appraisal of the loss." Six and a half years after the loss, the parties have continuously failed to agree on the amount. The fact that one reason for the failure to agree is the parties' continuing dispute over which materials should be disclosed to each other in no way detracts from the fact that the dispute over the amount of the loss needs to be decided by the use of the appraisal procedure set forth in the contract. If the two appraisers selected by the parties are not able to resolve any of the preliminary discovery-related issues and/or the ultimate question of the amount of the loss, the umpire provided for in the contract will cast the deciding vote and do so.
For all of these reasons, the application for an order to proceed with "arbitration" is granted. Each party has 20 days from the date of this decision to select a competent appraiser and notify both the court and the other party accordingly. Within 15 days of the selection of the appraisers, the appraisers shall choose an umpire. If they cannot agree upon an umpire within that period of time, either party may request the court to appoint one. Thereafter, the appraisers, and, if necessary, the umpire, will follow the procedures set forth in the contract to determine the amount of the loss. As all aspects concerning the dispute between the parties are now referred to the appraisers and, if necessary, the umpire, the court declines to rule on the motion for order of compliance (#116) or the objection thereto (#117) as these are both matters that are capable of resolution by the appraisers.