Kavli v. Eagle Star Ins. Co., 32112.
| Decision Date | 01 December 1939 |
| Docket Number | No. 32113.,No. 32112.,No. 32121.,No. 32120.,32112.,32113.,32120.,32121. |
| Citation | 206 Minn. 360,288 N.W. 723 |
| Parties | KAVLI et al. v. EAGLE STAR INS. CO., Limited. |
| Court | Minnesota Supreme Court |
Certiorari to District Court, Hennepin County; Vince A. Day, Judge.
Proceeding by Edward L. Kavli and others against the Eagle Star Insurance Company, Limited, for the appointment of umpires to act in arbitration of amount of losses under fire policies. To review two orders appointing umpires, the Eagle Star Insurance Company, Limited, brings certiorari.
Orders affirmed and writs of certiorari discharged.
Bowen, Best, Flanagan & Rogers, of Minneapolis, for appellant.
L. W. Crawhall, of Minneapolis, for respondents.
These cases bring up for review two orders appointing umpires to appraise losses due to fire under a policy provision found in Mason Minn.St.1927, § 3512. In each case there was a partial loss. The fires are referred to, for convenience, as the 16th avenue and Highland avenue fires. Both properties were insured against loss by fire by relator-appellant.
The 16th avenue fire occurred on December 22, 1938 and the Highland avenue fire occurred on December 27, 1938. There were some negotiations for settlement extending over a period of about six weeks. On February 9, 1939 proofs of loss were served. The company on February 15, 1939 served notice in each case that the parties could not agree upon the amount of loss and demanded an appraisal under the policy provisions. On the same day it appointed one Anderberg appraiser for the Highland avenue fire and one Billingsley for the 16th avenue fire. On February 16 the insured appointed Mr. Chester L. Nichols, a member of the Hennepin county bar, appraiser in each case and notified the insurer on February 17, 1939, giving the appraiser's full name and address, where he was accessible at all times.
The insurer's appraisers did not get in touch with the insured's appraiser, nor did they attempt to do so. On February 20, four days after his appointment, the insured's appraiser sent a letter to both of the insurer's appraisers requesting a conference for the purpose of naming an umpire in each arbitration.
Billingsley claimed that he did not receive Mr. Nichols' letter until February 23. He communicated with Nichols that day by telephone and sent him a letter in which he requested him to submit the names of three or four contractors from which Billingsley was to select one as umpire. Nichols received the letter on the 24th. Nichols' version is that in the telephone conversation of the 23d Billingsley insisted on naming a building contractor and Nichols insisted on a lawyer as the umpire and that he submitted the names of three reputable lawyers as nominees.
Anderberg left the state on February 18, and was absent therefrom until February 27, on which date he received Nichols' letter. He claims that the letter was the first notice he had of his appointment, which he verified by communicating with the insurer's representative; that he then got in touch with Nichols for the purpose of discussing the selection of an umpire and that Nichols told him that the time for discussing the appointment of an umpire had expired for the reason that the insured had applied to the court to name an umpire, the appraisers having failed to do so within the time allowed for the purpose.
The application for the appointment of an umpire was made by written notice of motion served on the insurer on February 24, 1939, which was set for hearing on March 2, 1939. The court granted the appraisers an additional day in which to agree and, they having failed to agree, the court appointed an umpire for each arbitration.
The policy provision found in Mason Minn.St.1927, § 3512, under which the applications for the appointment of the umpire were made in each case, so far as here material, provides that, where the parties fail to agree as to the amount of a partial loss under a fire policy, each party may select an appraiser within fifteen days after a statement of loss has been rendered by the insured to the insurer as required by the statute and the two appraisers so chosen shall first select an umpire, "provided, that if after five days the two appraisers cannot agree on such an umpire, the presiding judge of the district court of the county wherein the loss occurs may appoint such an umpire upon application of either party in writing by giving five days' notice thereof in writing to the other party."
The insurer contends that the notice of application for the appointment of an umpire in each case was given before the five days had run and that the court was without jurisdiction to make the appointments. Its argument is that the appraisers could not agree until they had first met, deliberated, tried to and failed through inability to agree. In the 16th avenue case, it claims that the five days commenced to run from February 23, the day Billingsley talked with Nichols on the telephone about the appointment of an umpire and in the Highland avenue case from the 27th, the day Anderberg talked with Nichols concerning the matter. The insured contends that the five day period is a time limited within which the appraisers must act and that it makes no difference whether they cannot agree because their attempts to do so have failed or they made no attempt to agree at all. No point is involved whether the five days begin to run from the day of appointment or from the day of notice thereof to the adverse party, nor could the point be made with any hope of success, since the application to the court to name an umpire was made more than five days after notice to the insurer of the appointment of the insured's appraiser.
The claim is also made that none of the appraisers took an oath to qualify as such until after the five days had run.
1. The provision that if after five days the appraisers cannot agree on an umpire, the presiding district judge may appoint one upon application, requires the appraisers to name an umpire within the five days and authorizes the judge to make the appointment if the appraisers cannot do so within the time stated, regardless of whether the inability is due to failure to agree after attempting to do so or to failure to attempt to agree at all. In Powers Dry Goods Co. v. Imperial Fire Ins. Co., 48 Minn. 380, 51 N.W. 123, 124, decided before the enactment of our present statute, we pointed out that arbitration provisions in a fire insurance policy "can only be carried into effect by the concurrent action of both parties." There simply cannot be an agreement unless both give their assent. It makes no difference why they cannot assent, whether it...
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