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Demand Must be in Clear and Explicit Terms.
The demand for an appraisal should be in clear and explicit terms; it cannot be inferred from a general expression in a letter or communication to the assured that the loss would not be payable until determined in manner stipulated in the policy.
Grand Rapids Ins. Co. v. Finn, 60 Ohio St. 513, 54 N. B. Rep. 545.
Agreement for Appraisal Must Follow Terms of the Policy.
A written agreement of appraisal must follow strictly the terms of the policy; if there is a departure from such terms it in effect abrogates the appraisal clause or else it operates as a waiver of it;' and the award if pleaded as made under the policy is no defense to an action on the policy; the insurance company has no right to insist upon execution of a written contract for appraisal, containing provisions not stated in the policy ;; nor can the insured insist on inserting other provisions or conditions.
1. Broadway Ins. Co. v. Doying, 55 N. J. L. 569, 27 Atl. Rep. 927, 23 Ins. L. J. 394; Davis v. Atlas Assur. Co., 16 Wash. 232, 47 Pac. Rep. 436, rehearing denied, 16 Wash. 239, 47 Pac. Rep. 485; Walker v. German Ins. Co., 51 Kans. 725, 33 Pac. Rep. 597; Harrison v. Hartford Ins. Co., 112 Iowa, 77, 83 N. W. Rep. 820; Harrison v. Hartford Ins. Co., 59 Fed. Rep. 732, 23 Ins. L. J. 161; Harrison v. German-American Ins. Co., 67 Fed. Rep. 577; Westenhaver v. German-American Ins. Co., 113 Iowa, * 26, 84 N. W. Rep. 717; Summerfield v. North B. & M. Ins. Co., 62 Fed. Rep. 249, 24 Ins. L. J. 442; Adams v. New York Bowery Ins. Co., 85 Iowa, 6, 51 N. W. Rep. 1149; Schouweiler v. Merchants Mut. Ins. Co., 11 S. D. 401, 78 N. W. Rep. 356, 28 Ins. L. J. 541. And see Remington Paper Co. v. London Assur. Co., 12 App. Div. 218, 43 N. Y. Supp. 431.
2. Adams v. New York Bowery Ins. Co., 85 Iowa, 6, 51 N. W. Rep. 1149. See Rule 29.
3. Walker v. German Ins. Co., supra. See Rules 22, 29, 67.
4. Hamilton v. Liverpool, L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct. Rep. 945.
When Number of Policies all of Same Form – When Different.
Where the policies of all the companies which join in an agreement for an appraisal are in one standard form, it cannot be claimed as an unauthorized appraisal or outside of the policy, and in effect a commonlaw arbitration ;1 where not all of standard form, the demand and agreement should be several or separate.? The employment of an appraiser by several companies is presumed to be joint and a payment of his compensation by one is for benefit of all.3
1. Wicking v. Citizens' Mut. Ins. Co., 118 Mich. 640,77 N. W. Rep. 275, 28 Ins. L. J. 220, distinguishing Connecticut Ins. Co. v. Hamilton, 59 Fed. Rep. 258, 16 U. S. App. 366, 23 Ins. L. J. 241, 8 C. C. A. 114. And see Hamilton v. Phænix Ins. Co., 61 Fed. Rep. 379, 9 C. C. A. 530, 22 U. S. App. 164, 23 Ins. L. J. 561.
2. See preceding cases in United States court; Palatine Ins. Co. v. Morton Scott Co., 106 Tenn. 558, 61 S. W. Rep. 787; North German Ins. Co. v. Morton Scott Co., 108 Tenn. 384, 67 S. W. Rep. 816.
3. Muench v. Globe Ins. Co., 8 Misc. 328, 28 N. Y. Supp. 569.
Effect of Selection of Same Appraiser by Several Companies.
The mere fact that several insurance companies all select the same appraiser does not tend to show that the appraisal is any other than the one required by the terms of the policies.
Westenhaver v. German-American Ins. Co., 113 Iowa, 726, 84 N. W. Rep. 717.
RULE 13 Demand for Appraisal Should be Made Promptly on Disagree
The insurance company, upon disagreement as to amount of the loss, should make a demand for an appraisal promptly within reasonable time, otherwise its delay to make such demand may be evidence of waiver;' in connection with other facts, and not a conclusive waiver as matter of law.2
1. Davis v. American Central Ins. Co., 7 App. Div. 488, 40 N. Y. Supp. 248, affd. without opinion, 158 N. Y. 688; Chainless Cycle Co. v. Security Ins. Co., 169 N. Y. 304, 62 N. E. Rep.
, 392; Hamilton v. Phønix Ins. Co., 61 Fed. Rep. 379, 9 C. C. A. 530, 22 U. S. App. 164, 23 Ins. L. J. 561; Grand Rapids Ins. Co. v. Finn, 60 Ohio St. 513, 54 N. E. Rep. 545.
2. Smith v. California Ins. Co., 87 Me. 190, 32 Atl. Rep. 872, previous appeal, 85 Me. 348. And see Rule 87.
Delay by Insured in Making Demand. If the insurance company, knowing of failure to agree on amount of loss, does not demand the appraisal, it cannot complain of assured's delay in making such demand or offer; but where delay is so great as to render an appraisal impossible, impracticable, or prejudicial to the insurance company, the assured can derive no benefit from such offer.
McNess v. Southern Ins. Co., 69 Mo. App. 232; Johnson v. Phænix Ins. Co., 69 Mo. App. 226. And see Continental Ins. Co. v. Wilson, 45 Kans. 250, 25 Pac. Rep. 629.
Exception.- In Minnesota assured may offer or demand an appraisal even after his complaint has been dismissed upon the trial for having previously refused to comply with demand of the insurance company; but the court is careful to say that rule would be otherwise where, for instance, property had been damaged, and company had been deprived of right to take it at appraised value.
Schrepfer v. Rockford Ins. Co., 77 Minn. 291, 79 N. W. Rep. 1005, rehearing denied, 79 N. W. Rep. 1026. And see also Kahnweiler v. Phænix Ins. Co., 67 Fed. Rep. 483, 14 C. C. A. 485, 32 U. S. App. 230.
Duty of Insured as to Keeping Damaged Goods. It is not the duty of the insured to keep damaged goods, in the absence of all request or attention from the insurance company, for a period of thirty days after furnishing of proofs in order to await a possible request for appraisal, where most of the goods were destroyed, and the damaged goods are of little comparative value, and when kept for fourteen days after receipt of notice of the loss, and depreciating in value all the time;' it is the duty of insured to keep the damaged property when he is notified by the insurance company in reasonable time of its intention to examine same for purpose of determining valuation, damage, or appraisal.
1. Davis v. American Central Ins. Co., 7 App. Div. 488, 40 N. Y. Supp. 248, affd. without opinion, 158 N. Y. 688. And see Chainless Cycle Co. v. Security Ins. Co., 52 App. Div. 104, 64 N. Y. Supp. 1060, affd., 169 N. Y. 304, 62 N. E. Rep. 392; Schrepfer 2. Rockford Ins. Co., 77 Minn. 291, 79 N. W. Rep. 1005. 2. Astrich v. German-American Ins. Co., 131 Fed. Rep. 13,
C. (. A. affg. 128 Fed. Rep. 477. And see ProvidenceWashington Ins. Co. v. Wolf,
72 N. E. Rep. 606. Reasonable time is a question of fact rather than law, depending upon the circumstances of the particular case. In Phoenix Assur. Co. v. Stinson, Tex. Civ. App. , 79 S. W. Rep. 866, it was held that three days' delay or omission by the company to express its desire or intention was evidence of waiver,
excusing the disposition of damaged goods by the insured. This is an extreme case, and cannot be said to establish a rule as to time.
RULE 16. Demand by Registered Letter - Effect of Mailing. A registered letter which the insured refuses to receive, containing a demand for an appraisal, must be regarded as duly transmitted and received;' mailing a letter demanding an appraisal raises a presumption of its receipt, but positive evidence that it was not received rebuts the presumption;a the question then becomes one of fact for determination by a jury.3
1. American Central Ins. Co. v. Simpson, 43 Ill. App. 98.
2. American Central Ins. Co, v. Heath (Tex. Civ. App.), 69 S. W. Rep. 235.
3. Rauch v. Michigan Millers' Ins. Co., 131 Mich. 281, 91 N. W. Rep. 160.
RULE 17. Demand for Appraisal Must Include Existing Losses Caused by
Successive Fires. Where there have been successive fires within a short time under the same policy, a demand for an appraisal by the company, made after the second fire, cannot be limited to the first fire. The company has no right to demand an appraisal except as to both fires and losses.
Mechanics' Ins. Co. v. Hodge, 149 Ill. 298, 37 N. E. Rep. 51, affg. 46 Ill. App. 479.
Motive in Demand Immaterial. Where the right to have an appraisal is fixed by the terms of the contract, it is immaterial what motive prompted the demand for performance.
Phænix Ins. Co. v. Carnahan, 63 Ohio St. 258.
Demand Cannot be Split. A demand for appraisal cannot be split, but must cover and include at one time all that is proper and