Klubnikin v. California Fair Plan Assn.
| Decision Date | 30 August 1978 |
| Citation | 148 Cal.Rptr. 563,84 Cal.App.3d 393 |
| Court | California Court of Appeals Court of Appeals |
| Parties | William J. KLUBNIKIN, Plaintiff and Appellant, v. CALIFORNIA FAIR PLAN ASSOCIATION, Defendant and Respondent. Civ. 51848. |
Schnider & Schnider, and Robert A. Schnider, Santa Monica, for plaintiff and appellant.
Long & Levit, and Myron S. Meisel, Los Angeles, for defendant and respondent.
This is an appeal from a summary judgment which holds that an award of appraisers determined the amount payable by California Fair Plan upon a policy of fire insurance covering a building owned by William Klubnikin. We conclude that: (1) "appraisers" empowered by the terms of a policy of fire insurance to determine the "cash value" and "loss" utilized to ascertain the amount payable on the policy are arbitrators within the meaning of Code of Civil Procedure section 1280; (2) an award of the appraisers unchallenged within the time provided by Code of Civil Procedure sections 1288 and 1288.2 and confirmed by the superior court is final; and (3) because Klubnikin failed to file and serve a petition to vacate the award of the appraisers within that period, and because that award has been confirmed by the superior court, Klubnikin's independent action upon the contract seeking damages in excess of the amount granted in the award of the appraisers is barred. We therefore affirm the summary judgment.
California Fair Plan issued its policy of fire insurance in the amount of $12,000 covering a "Class D building occupied as (a) church" owned by Klubnikin. The policy insures the property "to the extent of (its) actual cash value . . . at the time of loss . . . ."
The policy states:
On May 30, 1974, while the policy was in force, the property was damaged by fire. A second fire occurred on the property on July 15, 1974. When Klubnikin and California Fair Plan were unable to agree on the actual cash value or amount of loss, Klubnikin invoked the appraisal procedure. Over the disagreement of the appraiser selected by Klubnikin, the appraiser designated by California Fair Plan and the umpire determined that as to the loss of May 30, the actual cash value was $5,000, the loss and damage was $18,000, and "(t)he demolition and debris removal" was $1,600. The Fair Plan designee and the umpire also determined that as to the loss of July 15, the actual cash value and the loss and damage were both "zero."
The appraiser selected by California Fair Plan and the umpire executed an award indicating their determination of the actual cash value and the amount of loss. This award of the appraisers was issued in writing on April 8, 1975, and was served on Klubnikin on April 15, 1975. Klubnikin did not file a petition to vacate the award. On May 29, 1975, he filed an action for breach of contract asserting that California Fair Plan had breached its obligation to pay the amount required under the policy. The complaint alleged that the appraisal was conducted in an improper and unfair manner because of a failure to give plaintiff adequate notice and opportunity to be heard. The complaint also alleged that the appraiser and umpire exceeded their power under the submission by attempting to resolve questions of coverage, the nature of the property involved, and the interpretation of the policy. The file copy of the complaint does not bear the stamp that summons was issued.
On October 8, 1975, well after the 100-day period following the award of the appraiser and umpire, Klubnikin filed an amended complaint asserting the same charging allegations, but adding a cause of action for declaratory relief. The file copy of the amended complaint bears the stamp "Summons Issued."
California Fair Plan filed its answer to the amended complaint denying its charging allegations and asserting the affirmative defense that Klubnikin's action on the insurance contract was barred because Klubnikin had not served and filed a petition to vacate the appraisers' award within the 100-day period following service of a signed copy of the award as required by Code of Civil Procedure sections 1286.4 and 1288. On August 27, 1976, California Fair Plan filed its petition to confirm the "arbitration award" of the appraisers. On November 8, 1976, it moved for summary judgment in the case at bench. The motion was based upon an assertion that California Fair Plan's petition to confirm the arbitration award had been granted. The trial court's judgment sustaining the petition was in fact entered on November 9, after the notice of motion for summary judgment on Klubnikin's amended complaint but before the motion was heard.
Notice of entry of the judgment confirming the arbitration award was given on November 10, 1976. The record does not indicate any appeal from that judgment.
Klubnikin's opposition to the motion for summary judgment consisted of his declaration to the effect that the insured property had always been used as a church and a declaration of the appraiser selected by Klubnikin to the effect that the property had not been valued by the other appraiser and umpire as a church. The Klubnikin appraiser also declared that the appraiser and umpire reached their result without giving notice of hearing to the parties, conducting a hearing, or examining witnesses, but rather based upon information independently obtained by each of them.
The trial court granted California Fair Plan's motion for summary judgment. This appeal from that judgment followed.
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CHAPTER 10
...Also consider how treating appraisal as an arbitration effects the insurance claim dispute. Klubnikin v. California Fair Plan Ass’n 84 Cal. App. 3d 393, 148 Cal. Rptr. 563 (Cal. Ct. App. 1978) This is an appeal from a summary judgment which holds that an award of appraisers determined the a......
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...litigate their differences if an agreement cannot be reached. A. Appraisal Is Arbitration In Klubnikin v. California Fair Plan Ass'n, 84 Cal. App. 3d 393, 148 Cal. Rptr. 563 (Cal. Ct. App. 1978), the California Court of Appeal found that an insurance appraisal is an arbitration under Califo......
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