Automobile Ins. Co. of Hartford, Conn. v. Lloyd

• Decision Date: 17 January 1929
• Docket Number: 1547
• Citation: 273 P. 681,40 Wyo. 44
• Parties: AUTOMOBILE INS. CO. OF HARTFORD, CONN. v. LLOYD [*]
• Court: Wyoming Supreme Court

273 P. 681

40 Wyo. 44

AUTOMOBILE INS. CO. OF HARTFORD, CONN. v. LLOYD ^[*]

No. 1547

Supreme Court of Wyoming

January 17, 1929

ERROR to District Court, Hot Springs County; EDGAR H. FOURT, Judge.

Action by Minnie V. Lloyd against the Automobile Insurance Company of Hartford, Connecticut. Judgment for plaintiff and defendant brings error.

Affirmed.

S. M True and L. H. Sennett, for plaintiff in error.

This is an action to recover on a fire insurance policy. The demanded appraisal of the loss was void. It is well settled that where an appraisal has been demanded by either party to an insurance contract, under which a claim is made for damage no suit can be maintained upon the policy, until such demand has been complied with. Norwich Union v. Rogers, 70 Colo. 290; Cinti Co. v. Hedges, 58 N.E. 804; Williams v. Ins. Co., 122 F. 259; Butler v. Ins Co., 35 So. 33; Goldstein v. Ins. Co., 180 P. 409, 15 L. R. A. (N. S.) 1055 and note, 26 C. J. 416. An award of appraisers may be set aside for fraud. 26 C. J. 425. An umpire and appraiser for assured cannot proceed in making an award, in the absence of the appraiser appointed for the company and without notice to him. Schmidt v. Ins. Co., 81 N.Y.S. 767.

Chester Ingle and Dillon, Ellery and Spencer, for defendant in error.

The insurance company refused to agree upon an umpire, and in fact, abandoned the appraisement proceedings. The notice shows that the request made by plaintiff in error, for an appraisement, was not made in good faith. The only assignments of error discussed in the brief of plaintiff in error are: First: refusal of the court to instruct, that if Johnson had no notice of the meeting of appraisers, the appraisement was void, and second: error in denying insurance company's motion for a directed verdict. The general rule is that matters of appraisal in actions for loss under fire insurance policies are questions for the jury. 26 C. J. 552. If the verdict as found by the jury is sustained by substantial evidence, it is conclusive. Where one of the parties to an appraisal acts in bad faith, it absolves the other party. Ins. Co. v. Bishop, 39 N.E. 1102. Where insurer refuses to admit liability, the insured may bring suit on the policy without prior arbitration. 26 C. J. 431. Delay in admitting or accepting an appraisal, prejudicial to the opposing party waives the right of appraisal. 26 C. J. 430, 544 also. All parties are entitled to notice of the time and place of appraisal. 26 C. J. 422. An appraisal by one appraiser and an umpire, is not vitiated by failure of the other appraiser to attend when properly notified. Society v. Ins. Co., 109 N.E. 384. Failure to agree upon an umpire without fault of insured, permits prosecution of suit without arbitration. 26 C. J. 428, 579. The appraiser appointed by the insurance company was not impartial. He was an habitual appraiser for the insurer, and by appointing him, the company waived all rights as to the provisions of appraisement contained in the policy. Hartford Ins. Co. v. Asher, 100 S.W. 233. A penalty should be imposed under Section 6372, C. S., because of the frivolous nature of this appeal.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an action brought by the plaintiff against the Automobile Insurance Company of Hartford, Conn., hereinafter called the company, to recover on an insurance policy of $ 2,000 issued by the defendant to the plaintiff on March 27, 1926, by which the house of plaintiff in Thermopolis, Wyoming, was insured against fire. The Equitable Loan Association, mortgagee of the premises in question, and who had an interest in the policy, was also made defendant, but its claim was satisfied, by the insurance company paying it the sum of $ 812.30, and that defendant will, accordingly, not be further considered herein. On August 13, 1927, the house in question was partially destroyed by fire. Proof of loss was submitted to the company on September 7, 1927. Some investigation was made on behalf of the insurance company during the month of October, 1927, and George W. Webster, representing the company as an independent adjuster, concluded that the loss was not nearly that stated in the proof of loss submitted, and called for the appointment of appraisers to appraise the loss in accordance with the provisions contained in the policy of insurance, and which is the usual provision contained in the standard fire insurance policy. He appointed W. L. Johnson of Denver, Colorado, as the appraiser to represent the company. The plaintiff, on or about November 7, appointed William T. Slane of Thermopolis, Wyoming, as her appraiser, and about the same time gave notice in writing to the company that she would, on November 23, 1927, apply to the judge of the District Court for the appointment of an umpire in case the two appraisers should not be able to agree on one, in accordance with the provisions of the policy and also as stated in Section 18, Ch. 142, Subdivision 10, Session Laws of 1921. Mr. Johnson went to Thermopolis about November 21, or 22, 1927, and met with Mr. Slane and also the attorney for the plaintiff, and submitted for signature by the plaintiff a written agreement for submission of the amount of the loss to appraisers. The attorney for plaintiff objected to such agreement, claiming that it was contrary to the provisions of the policy. After some parleying, and without the appointment of an umpire, and without the submitted agreement above mentioned being signed, Mr. Johnson left for Denver, Colorado, on the afternoon of November 22, 1927. On the next day, pursuant to the written notice given to the company, the plaintiff applied to the judge of the District Court for the appointment of an umpire, and the judge appointed George Campbell, of Thermopolis, Wyoming, as such. About a day or two subsequently Mr. Slane and Mr. Campbell agreed on an appraisal, and appraised the sound value of the property destroyed at the sum of $ 6,500, which, considering the insurance on the property, required the company to pay the full amount of its policy, namely, the sum of $ 2,000. No notice of the meeting at which the appraisement was made was given to Mr. Johnson. Notice of what the appraisers had done was given to the adjuster by letter on November 25, 1927. Apparently before that letter was received, namely, on November 26, 1927, the adjuster wrote to the plaintiff that Mr. Johnson was still ready to go on with the appraisement, stating certain facts by reason of which the parties had not been able to come to an agreement. These facts, however, are disputed by the plaintiff. When the letter of November, 1927, of the adjuster, written to the plaintiff, was received, does not appear. The letter of November 25, 1927, by which the company was advised of the appraisement that had been made was apparently answered by letter of December 13, 1927, objecting to the methods that had been taken in making the appraisal. This letter was not received until after the commencement of this action, which was commenced on December 13, 1927. The suit herein appears to be one on the policy and not on the appraisement, although the plaintiff in the prayer of the petition asks to recover the amount fixed by the appraisers. The defendant answered, setting up the agreement in reference to the appraisal contained in the policy of insurance, the various steps that were taken in connection therewith, that no notice was given of the meeting of the appraisers to W. L. Johnson, that other irregularities were committed in connection with the appraisement, and that the appraisement made was void. The defendant asked that plaintiff take nothing in the action on account of the stipulation in the policy of insurance that no suit for the recovery of any claim should be commenced until after compliance with the provisions as to appraisement contained in the policy. The case was tried to a jury upon the issues joined. At the close of the case the defendant made a motion for a directed verdict because of the invalidity of the appraisal made. This motion was overruled. The case was submitted to the jury, which returned a verdict in favor of the plaintiff in the sum of $ 495.93, being the value of the loss, aside from $ 812.30, which already had been paid by the company to the Equitable Savings and Loan Association as above stated. Judgment was rendered upon the verdict, a motion for a new trial was...