Judge Katherine Chilton, Case 22STCP03404 2023-01-19 Tentative Ruling

Judge: Katherine Chilton, Case: 22STCP03404, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCP03404 Hearing Date: January 19, 2023 Dept: 25

PROCEEDINGS: APPLICATION FOR APPOINTMENT OF UMPIRE

MOVING PARTY: Petitioner Joseph Rodriguez

RESP. PARTY: Respondent State Farm General Insurance Company

APPLICATION FOR APPOINTMENT OF UMPIRE

(Ins. Code § 2071)

TENTATIVE RULING:

The Application to Appoint Umpire, filed by Petitioner Joseph Rodriguez, is GRANTED. The Court selects the following five nominees:

1) Leslie Steven Marks, Esq.

2) Sean Scott

3) Robert S. Mann, Esq.

4) Janice A. Ramsey

5) Michelle L. Burton, Esq.

The parties are ordered to select an umpire from the list of nominees within five (5) days’ notice of the Court Order, as required by Code of Civil Procedure § 1281.6. If the parties fail to select an umpire within 5 days, the Court shall appoint an umpire from the list of nominees.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 3, 2023. [ ] Late [ ] None

REPLY: None filed as of January 16, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On September 15, 2022, Petitioner Joseph Rodriguez filed a Petition for Case Number (“Petition”), arising out of a claim for property loss under an insurance policy issued by Respondent State Farm General Insurance Company (“Respondent”). The appraisers selected by the parties did not agree on the amount of loss; thus, Petitioner filed an Application for Appointment of an Umpire (“Application”). On January 3, 2023, Respondent filed a Response to the Application (“Response”).

No reply has been filed.

II. Legal Standard and Discussion

Petitioner seeks the appointment of an umpire to resolve the dispute between the parties’ appraisers over the amount of Petitioner’s property loss.

Although the petition does not specify that Petitioner’s property loss was due to fire, Petitioner has cited the Insurance Code provision governing the standard form for fire insurance policies. Insurance Code § 2071(a), sets forth the following:

In case the insured and this company shall fail to agree as to the actual cash value or the amount of loss, then, on the written request of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within 20 days of the request. Where the request is accepted, the appraisers shall first select a competent and disinterested umpire; and failing for 15 days to agree upon the umpire, then, on request of the insured or this company, the umpire shall be selected by a judge of a court of record in the state in which the property covered is located. Appraisal proceedings are informal unless the insured and this company mutually agree otherwise. For purposes of this section, “informal” means that no formal discovery shall be conducted, including depositions, interrogatories, requests for admission, or other forms of formal civil discovery, no formal rules of evidence shall be applied, and no court reporter shall be used for the proceedings. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this company shall determine the amount of actual cash value and loss.

(Ins. Code § 2071(a); Mahnke v. Superior Court (2009) 180 Cal.App.4th 565, 572.)

Here, the policy issued to Petitioner contains a clause stating that if the appraisers for the parties cannot agree upon an umpire within 15 days, the parties may request that a judge select the umpire in the state where the ‘residence premises’ is located.” (Furtado Decl. ¶ 3.) On or about May 28, 2022, Petitioner selected Mark James as the appraiser and Respondent selected Dan Smith as the Appraiser. (Ibid. at ¶ 4.) The appraisers did not agree on the amount of loss and further, did not agree on the chosen umpire for the appraisal. (Ibid. at ¶¶ 5-6.) Therefore, under the terms of the policy and Insurance Code § 2071(a), Petitioner is entitled to an order appointing an umpire. (Ibid. at ¶ 7.) Petitioner has provided a list of seven proposed umpires, along with each one’s qualifications. (Ibid. at ¶¶ 8-9, Exs. 1-7.)

On January 3, 2023, Respondent filed a Response to the Petition. Respondent does not dispute the insurance policy clause that entitles the parties to seek the appointment of an umpire. However, Respondent cites to Code of Civil Procedure § 1281.6, which states that “[w]hen a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration.” (Response pp. 2-3.) Respondent has provided a list of eight additional proposed umpires and requests that the Court “nominate five persons from those 15 nominees, or from a governmental agency or private ADR provider.” (Ibid. at p. 3, Fogarty Decl. ¶¶ 2-10, Exs. 1-8.) If the parties are unable to agree and select an umpire from the five nominees, then the court may appoint an umpire from that list. (Ibid.)

Appraisal proceedings are a form of informal arbitration and generally are subject to the rules governing arbitration. (See Code Civ. Proc. § 1280(a); Louise Gardens of Encino Homeowners' Assn, Inc. v. Truck Ins. Exch., Inc. (2000) 82 Cal.App.4th 648, 658; Appalachian Insurance Co. v. Rivcom Corp. (1982) 130 Cal. App. 3d 818, 824; Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1129; Devonwood Condominium Owners Ass'n v. Farmers Ins. Exch. (2008) 162 Cal.App.4th 1498, 1505.) However, while the agreement providing for arbitration often gives the arbitrator broad powers, appraisers generally have more limited powers. (E.g., Kirkwood v. California State Auto. Assn Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 58-59 [finding that, unlike arbitrators, appraisers have no power to interpret insurance policy or governing statutes]; Doan v. State Farm Gen. Ins. Co. (2011) 195 Cal.App.4th 1082, 1096 [appraisers' jurisdiction limited to amount of damages (precluded from determining proper method for calculation].)

Accordingly, Code of Civil Procedure § 1281.6, which governs arbitration proceedings, may be applied to the selection of a neutral umpire.

For these reasons, the Court GRANTS the Application to Appoint Umpire. From the lists of proposed umpires provided by Petitioner and Respondent, the Court selects the following five nominees:

1) Leslie Steven Marks, Esq.

2) Sean Scott

3) Robert S. Mann, Esq.

4) Janice A. Ramsey

5) Michelle L. Burton, Esq.

III. Conclusion & Order

For the foregoing reasons,

The Application to Appoint Umpire, filed by Petitioner Joseph Rodriguez, is GRANTED. The Court selects the following five nominees:

6) Leslie Steven Marks, Esq.

7) Sean Scott

8) Robert S. Mann, Esq.

9) Janice A. Ramsey

10) Michelle L. Burton, Esq.

Moving party is ordered to give notice.