The Golden Rule is commonly an excellent gauge of propriety and ethics. If good ole insurance coverage protection legal professional Steve Badger referred to as me and stated, “Chip, guess what? I saved you a bunch of time, effort and value. I despatched an e mail to a decide, and he appointed the umpire to our shopper’s insurance coverage appraisal,” most of you would guess what my verbal response can be to him. So, why would policyholders or their attorneys suppose the identical apply carried out by them to insurance coverage corporations is official?
The Golden Rule thought got here to my thoughts whereas studying an Alabama federal case1 the place it seems the policyholder despatched a unilateral demand for the appointment of an umpire by way of e mail to a state courtroom decide. The federal decide famous the next:
In February 2023, Geovera acquired a letter dated November 5, 2022, from DNB demanding appraisal. In response, Geovera requested DNB undergo an examination beneath oath, which it indicated was a situation precedent to the appraisal course of. (Id.) After months of making an attempt to schedule an examination and as soon as a November date was ‘held’ as a risk, DNB indicated to Geovera that it could undergo an examination solely after Geovera named their appraiser.
In December 2023, DNB despatched Geovera a letter stating that it could ‘transfer ahead with requesting a court-appointed umpire’. DNB then despatched a letter to a Baldwin County Circuit Court docket Choose, with out copying Geovera, which resulted within the decide offering DNB with a letter ‘order’ appointing an umpire for appraisal. In line with Geovera, the state courtroom decide was not totally knowledgeable of the underlying info previous to his issuance of his “order” at DNB’s request.
In gentle of the ‘order’ compelling Geovera to interact within the appraisal course of, Geovera filed the moment declaratory motion in search of a declaration that ‘enter judgment declaring Geovera has no obligation to take part within the appraisal as ordered by Choose Stankoski of the Circuit Court docket of Baldwin County, Alabama as Choose Stankoski was not apprised of the particular nature of the dispute, or the events concerned therein on the time of the request for the order and the issuance of the order itself.’
The federal courtroom decide dismissed the motion indicating that the quantity in controversy didn’t rise to the extent required to offer a federal courtroom jurisdiction to listen to the matter. However the query stays—is the unilateral race to nominate an umpire correct or moral?
The letter despatched to Choose Stankoski states partially:
DNB demanded appraisal in writing a couple of yr in the past, however GeoVera has refused to decide on its personal competent and neutral appraiser pursuant to the Coverage. This failure entitles DNB to request that ‘the selection be made by a decide of a courtroom of file within the state the place the ‘residence premises’ is positioned.’ Accordingly, since all circumstances precedent, together with the requisite 15-day discover requirement, have been met, occurred or been waived, on behalf of DNB, we ask that you simply appoint an umpire in order that the appraisal course of can transfer ahead.
Appraisal clauses, generally present in owners, car, and property insurance policies in Alabama, present a method to resolve disputes concerning the quantity of loss for a lined declare.
When appointment of an umpire is critical, both celebration could request a decide of a courtroom of file to carry out this function. ‘If in an settlement provision be made for a way of naming or appointing an arbitrator or arbitrators or an umpire, such technique shall be adopted. . . .’ Lexington Ins. Co. and Chartis,101 So. 3d 1190, 1196 (Ala. 2012) (quoting 9 U.S.C. § 5). Thus, appointment of an umpire is an extrajudicial motion that could be accomplished by a decide exterior of the judicial system, with out pleadings, discovery, and hearings.
Subsequently, as supplied beneath the Coverage, DNB and its appraiser ask that you simply appoint a reliable and disinterested umpire to supervise the appraisal course of. DNB is conscious that the people recognized within the connected listing of potential umpire candidates can be keen and capable of serve within the capability of umpire for this dispute, if appointed by this Court docket, all of that are competent and disinterested.
Please present the title and get in touch with data of the umpire chosen within the area supplied under. I’ll instantly present this data to the insurance coverage service and its appointed appraiser in addition to my shopper’s appointed appraiser.
The letter apparently didn’t copy counsel for the insurance coverage firm. The e-mail despatched to the decide didn’t, and the decide’s Order was not copied to the insurance coverage firm legal professional.
I raised how unfair a unilateral appointment could be in How Are Insurers Altering the Course of to Appoint an Umpire in an Insurance coverage Appraisal, $56 Million Greenback Appraisal Award Results in Fraud Counterclaim and Lawyer Hostility, and Order Vacates $56 Million Greenback Appraisal Award—Unilateral Appointment of Substitute Umpire Breached Coverage Time Necessities By One Day. On the Insurance coverage Appraisal and Umpire Affiliation (IAUA) and Property Loss Appraisal Community (PLAN) programs, I train that unilaterally sought umpire appointments usually are not correct and could possibly be unethical in lots of states that prohibit legal professionals from having unilateral contact with judges asking for materials orders or on something of substance. Certainly, it was at a Georgia Affiliation of Public Insurance coverage Adjusters (GAPIA) assembly the place an insurance coverage regulation professor stated it was an unethical act for legal professionals to hunt any such treatment with out alerting the opposing aspect.
The Alabama Canons of Judicial Ethics state {that a} decide mustn’t provoke, allow, or take into account ex parte communications regarding a pending continuing, besides in sure circumstances like scheduling, administrative functions, acquiring recommendation from a disinterested knowledgeable, or conferring individually with the events in an effort to mediate or settle, so long as no celebration features a bonus:
A decide ought to accord to each one that is legally keen on a continuing, or his lawyer, full proper to be heard in accordance with regulation, and, besides as approved by regulation, neither provoke nor take into account ex parte communications regarding a pending or impending continuing. A decide, nevertheless, could receive the recommendation of a disinterested and neutral knowledgeable on the regulation relevant to a continuing earlier than him; supplied nevertheless, a decide ought to use discretion in such circumstances and, if the decide considers that justice would require it, ought to give discover to the events of the individual consulted and the substance of the recommendation, and afford the events cheap alternative to reply.
For me, I’m instructing that it’s unethical within the overwhelming majority of jurisdictions for an legal professional to ship such a unilateral request to a decide.
What do you suppose?
Thought For The Day
No matter disagreement there could also be as to the scope of the phrase “due strategy of regulation” there could be little doubt that it embraces the basic conception of a good trial, with alternative to be heard.
—Oliver Wendell Holmes, Jr.
1 Geovera Specialty Ins. Co. v. DNB Investments, No. 24-003, 2024 WL 3836074 (S.D. Ala. Aug. 15, 2024).