Insurers created the appraisal process to provide an efficient way to resolve disputes outside of the courtroom using disinterested experts, but lately insurer skepticism about appraiser impartiality has become a new source of litigation.
Insurance defense attorneys are increasingly likely to challenge appraisal awards that they believe are tainted by appraisers who are not disinterested or impartial, as required by most insurance contracts.
“If an unbiased panel tells our client it owes the claim, great. Our client will pay it,” said Steve Badger, a partner with the Zelle law firm in Dallas who represented the insurer. “But if a crooked panel tells our client that it owes $56 million on a claim truly worth a tenth of that, we are fighting back. And aggressively.”
Badger represented Brotherhood Mutual Insurance Co. is a dispute with the First Baptist Church of Odessa, Texas over the value of claim resulting from a June 2017 hail storm. The insurer filed a counterclaim accusing the church of colluding with an appraiser and an umpire on the appraisal panel in an attempt to defraud it.
That was just the latest of several cases where insurers challenged repair estimates that they say were made by biased appraisers. Last month, a jury in Denver County, Colorado found that an appraiser had defrauded Travelers Indemnity Co. and awarded more than $500,000 in damages.
Badger said the appraisal process has no procedural rules or ethical guidelines.
“As a result, a small group of fraudsters have realized they can manipulate the appraisal process for the financial gain of their clients and also for themselves,” he said.
‘Untethered from reality’
Brotherhood Mutual had accused appraiser Raymond Choate and umpire Mark Weeks of being among those fraudsters in the counterclaim the insurer filed last December, after the church filed a lawsuit to recover hail damages.
Proceedings in the case, which was removed to federal court, were stayed in 2020 for the appraisal process. Both the church and the insurer designated appraisers, who mutually agreed to an umpire to resolve any differences.
But the umpire selected by the appraisers withdrew because of his heavy workload. Brotherhood alleges that this is when the church and its appraisers conspired to defraud it.
On June 15, 2020, an attorney for the church, Christopher G. Lyster, asked Judge Michael Moore, of the 29th Judicial Circuit in Palo Pinto County to appoint a replacement umpire. Moore complied the next day, appointing Mark Weeks in Wichita Falls (300 miles from Odessa). Weeks returned the $56.6 million appraisal award that Brotherhood Mutual challenged in court.
Moore’s courthouse is 269 miles from the First Baptist Church in Odessa, according to Google.com/maps. Wells resides in Wichita Falls, about 300 miles away.
According to Brotherhood Mutual’s pleadings, Choate and Weeks conspired to make misrepresentations and produce a damage estimate “untethered to reality,” knowing that the church would attempt to bind Brotherhood Mutual to it.
The insurer’s counterclaim states that the church’s own contractor submitted an estimate in 2018 that repairs of the hail damage would cost $10,660,764 and repairs to interior damage $40,708. The new $56.6 million appraisal included $38 million in interior damages, the suit says.
Brotherhood Mutual persuaded US District Court Judge David Counts to throw out the appraisal award, but not because of the fraud allegations. As it turned out, the church’s attorney had acted too soon. Judge Moore appointed a replacement umpire only 14 days after the previous umpire withdrew. Counts ruled that the policy required the church to wait 15 days before asking for a replacement umpire.
Counts granted the insurer’s motion to vacate the appraisal on Feb. 16. On Feb. 28, the parties submitted a notice of settlement for an undisclosed amount.
Badger is not allowed to discuss the settlement terms. But his point was clear.
“The days of compromising outrageous appraisal awards just to be done with the matter are over,” he said in an email.
The court never ruled on the merits of Brotherhood Mutual’s fraud arguments, but the involvement of a Palo Pinto County judge in a far-away claims dispute raised eyebrows even among policyholder attorneys. Chip Merlin, a Florida lawyer who runs a national practice representing insurance claimants, wrote about the First Baptist Church appraisal in a blog post last April.
“In some jurisdictions, writing a unilateral letter to a judge knowing that another party is represented I would suggest could be a major ethical issue,” Merlin wrote.
Lyster, Moore and Choate did not respond to requests for comment. Weeks said Monday that he did nothing wrong. He said he agreed to the appraised amount only after the insurer’s appraiser stopped participating in the process, leaving only one damage estimate in play. He said he signed documents releasing him from liability for the claim.
Good faith
Bob Horst, managing partner of the Horst Krekstein + Runyon law firm in Plymouth Meeting, Pennsylvania, outlined the inherent flaws of the appraisal process from an insurer’s perspective during a presentation at the Property Liability Resource Bureau conference in San Antonio earlier this month. He questioned whether appraisers who are paid on a contingency basis can be truly disinterested, as required by insurance contracts.
Shawn D. Woodie, a claims examiner for Erie Insurance Group, said during the presentation that appraisals, instead of settlements, are being used to resolve claims more than ever before.
Horst said the appraisal process itself is also being litigated more frequently, with multiple decisions from different jurisdictions in the last several months alone.
Some examples: In January, a US District Court judge in Miami dismissed a lawsuit filed by a homeowner who attempted to cancel an appraisal that took longer to complete than she wished and did not include the full scope of damages. In February, a US District Court Judge in Chicago ordered AmGuard Insurance Co. to participate in the appraisal process despite the insurer’s concern that its dispute with the homeowner was over whether coverage existed, not the extent of damage. In March, a US District Court judge in Tennessee compelled State Farm to appoint an appraiser to resolve a claim by a policyholder who says her historic home was damaged by a tornado.
“One issue generating attention is whether an appraiser — and/or an umpire, for that matter — is disinterested,” Horst said in an email. “Some policies and courts have also considered an appraiser’s impartiality as well. The existence of an appraiser’s contingency interest in a potential appraisal award (or loss payment) is likely one factor in an analysis of whether that appraiser is interested.”
Public adjusters generally agree that the appraisal process is being used more often than it should, said Brian Goodman, counsel for the National Association of Public Insurance Adjusters. But Goodman said there’s plenty of blame to go around.
Goodman said natural disasters are more frequent and insurers are responding by sending inexperienced out-of-state adjusters who don’t always know how to value a claim. On top of that comes a general lack of civility in society that discourages a good faith effort among the parties involved to resolve claims.
Goodman said there are two requirements for an appraiser: They must be competent and disinterested.
“If you look at the plethora of reported cases now, the notion of who/what is a disinterested appraiser is litigated all the time,” he said in an email.
Bad faith
Many cases involving alleged bias by an appraiser cite a 2019 Colorado Supreme Court decision in a lawsuit brought against Owners Insurance Co. by the Dakota Station II Condominium Association. The insurer paid the claim after an appraisal, but later challenged that appraisal because the appraiser’s contract with the insured capped her fee as a percentage of the insurance payout, Also, the appraiser had testified that it is appropriate for an appraiser to act as an advocate for the insured.
The Supreme Court did not agree that the contingent fee agreement necessarily meant the appraiser was biased, but remanded the case with directions to the trial court to determine whether the appraiser’s statement about being an advocate for her client had disqualified her.
The Supreme Court’s ruling states that appraisers must be “unbiased, disinterested, without prejudice, and unswayed by personal interest, [and] must not favor one side more than another.”
Travelers Insurance Co. banked on that Dakota Station language when it challenged an appraisal award that found $1.6 million in hail damage to policyholder GSL Group’s property.
Travelers paid the appraisal award, but later learned that the policyholder’s appraiser, Juan Cartaya, had used a fraudulent invoice to support his estimate of the extent of damages.
The insurer said Cartaya had received $603,864 bid from a contractor to repair the metal roof over GSL Group’s property, which included a $23,000 line-item estimate to repair beams, called purlins, that support the roof. But Cartaya included the entire $603,864 as the cost of purlin repairs alone and added additional line items that increased his appraisal to $1.6 million.
Travelers alleged that Cartaya had billed himself as an “advocate” for policyholders when advertising his business, located in Fort Lauderdale, Florida. He also received received numerous referrals from the Merlin Law Group — the very law firm mentioned earlier that is managed by policyholder attorney Chip Merlin. What’s more, attorneys for Merlin’s practice often provided free legal services to Cartaya’s clients.
“One is reminded of the adage that ‘there is no such thing as a free lunch,’” US District Court Senior Judge Marcia S. Krieger said in a September 2021 ruling. “Here, it is reasonable to believe that Mr. Cartaya would feel obligated to return that favor, such that he could be swayed in his appraisal activities in this case by that personal interest.”
Krieger found that the evidence showed Cartaya has submitted a “grossly overinflated estimate” of the damage to the GSL Group property and that he was not impartial as required by the policy. She vacated the appraisal award, but also denied Travelers request to recoup $805,054 that the insurer said it had overpaid.
Travelers filed a separate lawsuit against Cartaya in Denver County Circuit Court. The case was tried and on March 29 a jury returned a civil verdict finding that Cartaya had committed fraud. The jury found that Travelers’ damages were $603,864, but 10% of that amount was the fault of the insurer’s appraiser, Trent Gillette.
“Sadly, these abuses are ruining a process that was intended to help policyholders promptly resolve disputed claims without the need for litigation,” Badger said. “To the contrary, the current schemes are ensuring these disputes end up in years of litigation.”
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.