Bell v. Liberty Mutual Fire Insurance

734 S.E.2d 894, 319 Ga. App. 302, 2012 Fulton County D. Rep. 4011, 2012 Ga. App. LEXIS 1031
CourtCourt of Appeals of Georgia
DecidedNovember 30, 2012
DocketA12A1094
StatusPublished
Cited by9 cases

This text of 734 S.E.2d 894 (Bell v. Liberty Mutual Fire Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. Liberty Mutual Fire Insurance, 734 S.E.2d 894, 319 Ga. App. 302, 2012 Fulton County D. Rep. 4011, 2012 Ga. App. LEXIS 1031 (Ga. Ct. App. 2012).

Opinion

PHIPPS, Presiding Judge.

Ernest and Iris Bell appeal from a trial court order granting Liberty Mutual Fire Insurance Company’s motion for entry and approval of certain appraisal awards determined by an umpire and denying the Bells’ motion to set aside those same awards, which were for less than the limits of their homeowner’s insurance policy with Liberty Mutual. The Bells contend that the trial court should have set aside the awards because the forms of the awards were improper, and thus, there was irregularity, a palpable mistake of law, or fraud in the issuance of the awards. The Bells also contend that the trial court erred in not finding that they were entitled to the maximum amount of coverage set forth in their insurance policy pursuant to a particular statute, and in not finding that Liberty Mutual denied their claim in bad faith. Finding no error, we affirm.

After their home was damaged by fire on April 26,2008, the Bells submitted a claim to Liberty Mutual to recover the policy limits for the loss of their dwelling and personal property. Liberty Mutual disputed the amount of the claim. Pursuant to the terms of the policy, the matter was submitted to two appraisers and to an umpire, to determine the actual value and amount of loss.

While the appraisal process was ongoing, the Bells filed in superior court a complaint for damages, seeking, among other things, to be paid the policy limits of their fire insurance policy for the loss of their dwelling and loss of personal property. Liberty Mutual filed an answer and asserted defenses, denying liability and disputing the amount of the claim. Litigation was stayed pending the completion of the appraisal process.

In August 2010, the umpire issued awards for the loss of the dwelling and the loss of personal property in amounts less than the policy limits, and Liberty Mutual assented to the awards.1 The stay on the litigation was lifted. Liberty Mutual filed in the trial court a motion for entry and approval of the awards; the Bells filed a motion to set aside the awards for the loss of the dwelling and the loss of personal property. The trial court issued an order granting Liberty Mutual’s motion; denying the Bells’ motion; and ordering that the [303]*303umpire’s awards constituted the appropriate measure of damages. From this order, the Bells appeal.

An appraisement award is the result of a contractual method of ascertaining the amount of loss, and it is binding on the parties as to the amount of loss unless the award is set aside. There exists a presumption in favor of the regularity and fairness of appraisement awards, and it is difficult to set them aside. While an award may be attacked for any reason that would void a contract, as well as for fraud in the arbitration or in either party in obtaining the award, for a palpable mistake of law or for deciding any matter by chance or lot, where there is no evidence of fraud, oppression, irregularity, or unfairness, other than on the disputed issue of value, and no other circumstances tending to raise the issue, a verdict in the amount of the award is demanded.2

An appellate court will not interfere with the report of appraisers when the question of quantum of the judgment is the subject of review, to correct the amounts reported, except in case of gross error showing prejudice, corruption or plain mistake.3

1. The Bells contend that the forms of the umpire’s awards were improper because the umpire failed to include in the awards a list of damage or loss to any specific articles of personal property or components of the house. They argue that because that was not done, there was irregularity, a palpable mistake of law, or fraud committed by the umpire in his entry of the awards.

(a) The Bells do not contest that the insurance policy between them and Liberty Mutual (“homeowner’s policy”) did not require such itemization. They assert that their policy must be construed so as to conform to the state standard fire policy.4 In that regard, the Bells argue that the standard policy applied to this case and required such itemization, and that the umpire’s failure to itemize in accordance with the standard policy rendered the forms of the awards improper and invalid due to irregularity, a palpable mistake of law, or fraud committed by the umpire in his entry of the awards.

[304]*304The standard policy pertinently provides:

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 [umpire and one appraiser] whenfiledwith [Liberty Mutual] shall determine the amount of actual cash value and loss.5

The term “item” is not defined in the standard policy. And the parties have not cited, nor have we discovered, any Georgia authority interpreting the requirement to itemize. The Bells assert that because the standard policy specifies that an insured must “furnish a complete inventory of destroyed, damaged and undamaged personal property, showing in detail quantities, costs, actual cash value and amount of loss claimed,”6 7then “[n]o lesser burden can possibly be placed on the umpire.” But we are not convinced that the language of the standard policy in Georgia requires that the umpire itemize as the Bells describe. The pertinent language in the standard policy concerning what the umpire must do simply does not explicitly place such a duty on the umpire as it does on the insured; nor does the policy between the Bells and Liberty Mutual require such itemization.

To support their position, the Bells rely on Kacha v. Allstate Ins. Co.,7 but that case is distinguishable. There, the judge instructed the homeowners (whose house had been damaged by heat and smoke in a wildfire) and the company that insured the home to agree as to a form for the award, and the parties agreed that the award would include a listing of specific items, e.g., kitchen cabinets, flooring, garage cabinets, carpet, and interior walls.8 Liberty Mutual, however, relies upon cases from multiple jurisdictions, interpreting in its favor clauses similar to the one at issue in this case. In those cases, the courts held that the term “item” in the appraisal provisions referred to the “items” listed on the faces of the policies, rather than to all the constituent elements of damage giving rise to the total loss.9 For [305]*305instance, in Commercial Union Ins. Co. v. Ryals,10 the appraisal panel looked to the “Coverage” provision of the policy and determined that since there was only one item referred to — “Building(s)” — an itemized account of the components which made up the damaged building was unnecessary; it was proper for the appraisers to compute the loss to the building as one item.* 11

Here, the umpire entered three awards — for additional living expenses, for personal property, and for real property. As to the personal property and real property awards, the umpire stated separately the actual cost value, the total depreciation, and the replacement cost value.

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734 S.E.2d 894, 319 Ga. App. 302, 2012 Fulton County D. Rep. 4011, 2012 Ga. App. LEXIS 1031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-liberty-mutual-fire-insurance-gactapp-2012.