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& M. Ins. Co., 61 Mo. App. 323; Morley v. Liverpool, L. & G. Ins. Co., 85 Mich. 210, 48 N. W. Rep. 502; Chippewa Lumber Co. v. Phænix Ins. Co., 80 Mich. 116; Kersey v. Phænix Ins.. Co., Mich. 97 N. W. Rep. 57; Continental Ins. Co. v. Vallandigham, Ky. , 76 S. W. Rep. 22; Carp v. Queen Ins. Co., 104 Mo. App. 502, 79 S. W. Rep. 757; Phenix Ins. Co. v. Lorton, 109 Ill. App. 63; Providence-Washington Ins. Co. v. Wolf,
72 N. E. Rep. 606. As a condition precedent under the Massachusetts standard form, see Lamson Consolidated Stove Co. v. Prudential Ins. Co., 171 Mass. 433, 50 N. E. Rep. 943, 28 Ins. L. J. 70, and Rule 1.
Exceptions.-A clause in a policy for appraisal is too indefinite to be enforced when it does not provide for the number of the appraisers nor mode of their selection;' or when the policy does not contain a further provision that action cannot be maintained or loss become due and payable until after an award;” in Nebraska any appraisal clause which does not provide for submission to a particular person or to a particular tribunal, but to persons to be mutually chosen, is revocable by either party. It is revocable in Pennsylvania,“ and in New Hampshire."
1. Greiss v. State Investment Ins. Co., 98 Cal. 241, 33 Pac. Rep. 195, 22 Ins. L. J. 629; Ætna Ins. Co. v. McLead, 57 Kans. 95, 45 Pac. Rep. 73, 25 Ins. L. J. 669; Case v. Manufacturers' Ins. Co., 82 Cal. 263, 21 Pac. Rep. 843.
2. Mutual Ins. Co. v. Alvord, 61 Fed. Rep. 752, 23 Ins. L. J. 801.
3. Home Ins. Co. v. Kennedy, 47 Nebr. 138, 66 N. W. Rep. 278; Phænix Ins. Co. v. Zlottky, 66 Nebr. 584, 92 N. W. Rep. 736; Hartford Ins. Co. v. Hon, 66 Nebr. 555, 92 N. W. Rep. 746; Insurance Co. of N. A. v. Bachler, 44 Nebr. 549, 62 N. W. Rep. 911, 24 Ins. L. J. 481.
4. Yost v. Dwelling-House Ins. Co., 179 Pa. St. 381, 35 Atl. Rep. 517, 26 Ins. L. J. 716; Needy v. German-American Ins. Co., 197 Pa. St. 460, 47 Atl. Rep. 739.
5. Franklin v. New Hampshire Ins. Co., 70 N. H. 251, 47 Atl. Rep. 91.
Not Necessary to Admit Liability - Effect of Denial of Liability.
It is not necessary for the insurance company to admit liability before the appraisal clause becomes operative;' though denial of liability may operate as a waiver of appraisal.?
1. Western Assur. Co. v. Hall, 120 Ala. 547, 24 So. Rep. 936, 28 Ins. L. J. 349. And see Willoughby v. St. Paul German Ins. Co., 68 Minn. 373.
2. See Rule 89.
In Pennsylvania, where the appraisal clause is held inoperative as a condition precedent to right to sue, and to be revocable (Needy v. German-American Ins. Co., 197 Pa. St. 460, 47 Atl. Rep. 739) it has been held that limited effect may be given to it when liability is admitted, and the only question is one of amount. Mentz v. American Ins. Co., 79 Pa. St. 478; Yost v. Dwelling-House Ins. Co., 179 Pa. St. 381, 35 Atl. Rep. 517.
In Tennessee it has only lately been held that a demand for an appraisal involved an admission of liability for some amount and operated as a waiver. North German Ins. Co. v. Morton Scott Robertson Co., 108 Tenn. 384, 67 S. W. Rep. 816. But reading of entire opinion shows that the expression of the court was founded upon the reasoning that the insurance company cannot at same time deny all liability, and demand an appraisal, which is perfectly consistent with Rule 89, and that was really what was decided by the case cited Hickerson v. Insurance Co., 96 Tenn. 193, 33 S. W. Rep. 1041.
Neither the Pennsylvania nor Tennessee cases referred to appear to have considered or decided the effect or legal operative force of the specific provision, inserted in the standard form, since the decision in the Mentz case, that “the company shall not be held to have waived any provision or condition of the policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to an appraisal,” nor of the clause usually inserted in appraisal agreements that same shall be without prejudice, etc. Whether either of these or similar provisions were in the policies or record in the Tennessee cases does not appear in the reports. Thus neither the Pennsylvania nor Tennessee cases would appear to be clear or satisfactory authority for any proposition or rule to contrary of that stated above in the text.
RULE 5. Effort Must be Made to Arrive at Amount of Loss Must be
Actual Disagreement. It is incumbent upon the insurance company to make some effort to arrive at amount of the loss by agreement with the assured before the appraisal clause can be invoked as a defense. There must be an actual disagreement as to amount between the assured and the company before the appraisal clause becomes operative; such disagreement will not be assumed where the company fails or neglects to take any steps to ascertain the loss; but may be assumed when both parties have signed an appraisal agreement.? 1. Manchester Ins. Co. v. Simmons, 12 Tex. Civ. App. 607, 35
. . S. W. Rep. 723; Hartford Ins. Co. v. Cannon, 19 Tex. Civ. App. 305, 46 S. W. Rep. 851; Fletcher v. German-American Ins. Co., 79 Minn. 338, 82 N. W. Rep. 647; Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041, 25 Ins. L. J. 422; Boyle v. Hamburg-Bremen Ins. Co., 169 Pa. St. 349, 32 Atl. Rep. 553, 24 Ins. L. J. 699; Moyer v. Sun Ins. Co., 176 Pa. St. 579, 35 Atl. Rep. 221; Capital Ins. Co. v. Wallace, 50 Kans. 453, 31 Pac. Rep. 1070, 22 Ins. L. J. 397; Walker v. German Ins. Co., 51 Kans. 725, 33 Pac. Rep. 597; Hanover Ins. Co. 1'. Harper, 77 Ill. App. 453; American Ins. Co. v. Stewart (Tex.), 38 S. W. Rep. 395; Citizens' Ins. Co. v. Bland (Ky.), 39 S. W. Rep. 825, 26 Ins. L. J. 615, 40 S. W. Rep. 670; McNees v. Southern Ins. Co., 61 Mo. App. 335; Liverpool, L. & G. Ins. Co. v. Hall, 1 Kans. App. 18, 41 Pac. Rep. 165; Hooker v. Phænix Ins. Co., 69 Mo. App. 141; Farnum v. Phænix Ins. Co., 83 Cal. 246, 23 Pac. Rep. 869; Rosenwald v. Phænix Ins. Co., 50 Hun, 172; Pioneer Mfg. Co. v. Phønix Assur. Co., 106 N. C. 28, 10 S. E. Rep. 1057; Continental Ins. Co. v. Vallandigham, Ky. 76 S. W. Rep. 22; British-American Ins. Co. 1. Darbagh, 128 Fed. Rep. 890, C. C. A. ; Kelly v. Liverpool, L. & G. Ins. Co., Minn. , 102 N. W. Rep. 380.
2. Kersey v. Phønix Ins. Co., Mich. 97 N. W. Rep. 57.
RULE 6. Disagreement Must Exist as to Amount of Loss. A disagreement between the assured and the insurance company upon a matter distinct and separate
from amount of the loss, as for instance, as to liability, and not as affecting the apportionment or amount of the loss, is not a disagreement as to amount of the loss;' and so where the assured refuses an adjuster's offer in compromise, and then the latter withdraws his offer with notice that the company insists upon all the terms of the policy intending to terminate all negotiations for a settlement, there exists no longer a difference as to the amount of the loss, and appraisal clause is inoperative.
1. Nelson v. Atlanta Home Ins. Co., 120 N. C. 302, 27 S. E. Rep. 38, 26 Ins. L. J. 913; Hogadone v. Grange Mutual Ins. Co., 133 Mich. 339, 94 N. W. Rep. 1045.
2. Dautel v. Pennsylvania Ins. Co., 65 Mo. App. 44.
Insured Estopped by His Request for Appraisal. When the assured has requested an appraisal, he cannot be heard afterward to claim that the condition was inoperative because there had been no effort to agree upon an adjustment.
Brock v. Dwelling-House Ins. Co., 102 Mich. 583, 61 N. W. Rep. 67, 24 Ins. L. J. 464; Carp v. Queen Ins. Co., 104 Mo. App. 502, 79 S. W. Rep. 757.
Must be Demand for Appraisal — Effect of Omission to Make it.
The appraisal clause does not become operative as a condition precedent until the company makes a demand for an appraisal;' and this by construction notwithstanding the omission of former words used “shall upon request of either party be submitted,”
etc., but the omission is immaterial, as failure to make
, the demand becomes evidence of waiver.3
1. Lesure Lumber Co. v. Mutual Ins. Co., 101 Iowa, 514, 70 N. W. Rep. 761; Harrison v. Hartford Ins. Co., 112 Iowa, 77, 80 N. W. Rep. 309; National Home B. & L. Assoc. v. DwellingHouse Ins. Co., 106 Mich. 236, 64 N. W. Rep. 21; Chainless Cycle Co. v. Security Ins. Co., 169 N. Y. 304, 62 N. E. Rep. 392; Davis v. Anchor Mutual Ins. Co., 96 Iowa, 70, 64 N. W. Rep. 687, 25 Ins. L. J. 299; Zalesky v. Home Ins. Co., 102 Iowa, 613, 71 N. W. Rep. 566, 27 Ins. L. J. 517; Bishop v. Norwich Union Ins. Co., 25 N. S. 492; Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041, 25 Ins. L. J. 422; Liverpool, L. & G. Ins. Co. v. Hall, 1 Kans. App. 18, 41 Pac. Rep. 65; Citizens' Ins. Co. v. Bland (Ky.), 39 S. W. Rep. 825, 26 Ins. L. J. 615, 40 S. W. Rep. 670; Kahnweiler v. Phænix Ins. Co., 67 Fed. Rep. 483, 14 C. C. A. 485, 32 U. S. App. 230; Phenix Ins. Co. v. Badger, 53 Wis. 283; Capital Ins. Co. v. Wallace, 48 Kans. 400, 29 Pac. Rep. 755; Tilley v. Connecticut Ins. Co., 86 Va. 811, 11 S. E. Rep. 120.
2. Lesure Lumber Co. v. Mutual Ins. Co., supra; Chainless Cycle Co. v. Security Ins. Co., supra.
3. See Rules 13, 87, and 97. A subsequent clause in the standard form providing for payment of the loss in sixty days after furnishing of proof, etc., “including an award by appraisers when appraisal has been required," assumes a previous requirement. As construed in Lesure Lumber Co... Mutual Ins. Co., supra, p. 523. (And see Rule 2.) This construction is, however, opposed by MeNees v. Insurance Co., 69 Mo. App. 232; Vurphy v. N. B. & M. Co., 61 Mo. App. 323. And see Phænix Ins. Co. v. Carnahan, 63 Ohio St. 258; Fisher v. Merchants' Ins. Co., 95 Me. 486, 50 Atl. Rep. 282.
The best and perhaps the most correct summary of the matter would be to say that the condition is operative in event of disagreement as to amount of loss without request, but may be and is waived where there is no request, or the absence of request becomes evidence of waiver. Kahnweiler v. Phænix Ins. Co., supra; Phenix Ins. Co. v. Stocks, 149 Ill. 332, 36 N. E. Rep. 408; Chainless Cycle Co. v. Security Ins. Co., supra. In Phænix Ins. Co. v. Lorton, 109 Ill. App. 63, it seems to be held that after the company has demanded an appraisal it need not take the initiative in the selection of appraisers.