Concordia Fire Ins. Co. of Milwaukee v. Barkett
| Decision Date | 02 June 1925 |
| Docket Number | Case Number: 15632 |
| Citation | 236 P. 890,1925 OK 433,110 Okla. 177 |
| Parties | CONCORDIA FIRE INS. CO. of MILWAUKEE v. BARKETT et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Insurance--Fire Policy -- Waiver of Right to Appraisal by Denial of Liability.
The provision of a fire insurance policy providing that in case of loss and failure to agree on the amount of loss there shall be an appraisement by three competent and disinterested appraisers, one of whom to be chosen by the insured and one by the company, and the third by the two thus chosen is waived by the insurer by denial of liability prior to demand for such appraisement.
2. Same--Action on Policy--Amount of Loss--Sufficiency of Evidence.
Record examined, and held, that the verdict is reasonably supported by the evidence as to the amount of loss, and is otherwise without prejudicial error.
Commissioners' Opinion, Division No. 2.
Error from District Court, Oklahoma County; James I. Phelps, Judge.
Action by N. G. Barkett et al. against the Concordia Fire Insurance Company of Milwaukee. From judgment for plaintiffs, defendant appeals. Affirmed.
Ross & Thurman, for plaintiff in error.
McLaury & Hopps and Albert L. McRill, for defendants in error.
¶1 Parties will be referred to as they appeared in the trial court, inverse to their order here. Plaintiffs sued on two fire insurance policies, aggregating $ 7,000, covering their stock of merchandise destroyed and damaged by fire on February 21, 1923. Judgment on verdict was for plaintiffs for $ 4,000. Defendant prosecutes error. The following facts are either not disputed or are supported by sufficient quantum of evidence to sustain the verdict: That on the day following the fire the adjuster of defendant, together with an appraiser of stocks, went to the scene of the loss and inventoried and appraised the salvage; that within a day or two, defendant, through its adjuster, offered plaintiffs $ 1,348, in settlement of the loss; that a few days thereafter defendant's adjuster advised plaintiffs that the defendant would have nothing further to do with the loss--that all offers were withdrawn, and, in substance, that the defendant denied liability; that thereafter plaintiffs had the salvage reappraised and sold same for $ 1,231, which was in excess of the value placed thereon by any witness; that thereafter plaintiffs made proof of loss, giving credit for salvage sold; that the adjuster knew prior to demand for appraisement that the salvage had been sold (the adjuster so testifying); that thereafter defendant demanded an appraisement pursuant to the terms of the policies; that an appraisement was duly executed by the parties and appraisers appointed, who reported that the damaged property could not be appraised for that the salvage had been disposed of; that the policies contained the standard form provisions that in the event of disagreement as to the amount of loss, same could be ascertained by two competent and disinterested appraisers, each party selecting one and they, an umpire, the award of any two to determine the amount of loss; that the loss should not become payable until 60 days after notice, ascertainment, estimate, and satisfactory proof of the loss were received by the company, including such award, when appraisement is required; that the defendant had the option to take the articles at the appraised value, or replace them on giving notice, within 30 days after the receipt of proof; that plaintiff should give immediate notice of any loss and protect the property from further damage separating the damaged property, making inventory of same, showing cost and amount claimed, etc. The decisive question involves the claim of defendant that its rights under said provisions were violated in consequence of the failure to appraise.
¶2 Such appraisement becomes a condition precedent to suit when the insurer makes demand therefor. American Ins. Co. v....
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Massey v. Farmers Ins. Group
...denial of liability by an insurer waives the right of the insurer to invoke the appraisal provision. Concordia Fire Ins. Co. of Milwaukee v. Barkett, 110 Okla. 177, 236 P. 890 (1925). This holding finds support in the majority view concerning appraisal provisions, including the generally re......
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Trinity Baptist Church v. Guideone Elite Ins. Co.
...that "appraisement becomes a condition precedent to suit when the insurer makes demand therefor." See Concordia Fire Ins. Co. v. Barkett, 110 Okla. 177, 236 P. 890, 891 (1925). Based on these principles, Plaintiff argues that "when an appraisal provision is invoked, the statute of limitatio......
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...has demanded the appraisal but reserved the right to litigate liability.") [unpublished opinion], citing Concordia Fire Insurance Co. v. Barkett, 110 Okla. 177, 236 P. 890 (1925) and Fidelitty-Phenix Fire Insurance Co. of New York v. Penick, 401 P.2d 514 (Okla. 1965); LeBlanc v. The Travele......
- Concordia Fire Ins. Co. of Milwaukee v. Barkett