Caledonian Insurance v. Superior Court

California Court of Appeal Apr 3, 1956 No. Civ. 17117Published

Before: Dooling

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Holding. The court held that when a party invokes the judicial power of the superior court to appoint an umpire under an insurance policy, the court must provide notice to the adverse party to obtain personal jurisdiction. Because the order was issued without notice, the court lacked jurisdiction, and a writ of prohibition is the proper remedy.

Issues

Whether a superior court may appoint an umpire under an insurance policy without providing notice to the adverse party.
Whether the appointment of an umpire by a court constitutes a judicial action requiring adherence to established judicial procedure.

Disposition. Peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“The more reasonable construction would seem to be that in calling for action by “a judge of a court of record” the contract intended a judicial order rather than a purely personal action.”

“The general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party.”

[459]

DOOLING, J.

Petitioner issued to the real party in interest, Don C. Falloon, a policy of fire insurance. Falloon suffered a loss by fire and filed a proof of loss with petitioner. Petitioner gave notice to Falloon that it disagreed with the value of the property set forth in his proof of loss and demanded an appraisal in accordance with the following provision of the policy:

“13.

Appraisal.

If the Assured and the Company fail to agree as to the amount of loss, each shall, on the written demand of either, made within sixty (60) days after receipt of proof of loss by the Company, select a competent and disinterested appraiser, and the appraisal shall be made at a reasonable time and place. The appraisers shall first select a competent and disinterested umpire, and failing for fifteen (15) days to agree upon such umpire, then, on the request of the Assured or the Company, such umpire shall be selected by a judge of a court of record in the state in which such appraisal is pending. The appraisers shall then appraise the loss, stating separately the actual cash value at the time of loss and the amount of loss, and failing to agree shall submit their differences to the umpire. An award in writing of any two shall determine the amount of loss. The Assured and the Company shall each pay his or its chosen appraiser and shall bear equally the other expenses of the appraisal and umpire. The Company shall not be held to have waived any of its rights by any act relating to appraisal.”

Falloon designated an appraiser to whom petitioner objected as not “disinterested” as required by the policy. The parties reached an impasse and no umpire was appointed within 15 days. Falloon filed a petition with the clerk of the Superior Court of Alameda County praying for the appointment of an umpire as provided in the quoted provision. Thereupon, without any notice to petitioner, an order was signed by a judge of said court appointing an umpire which order was regularly filed and entered in the office of the county clerk.

When a copy of this order was served on petitioner it appeared specially in the superior court to move that this order be vacated on the ground' that without notice to petitioner the court was without jurisdiction to make the order. This motion was denied and petitioner filed its petition herein for a writ of prohibition to stay further action under said order.

Caledonian Insurance v. Superior Court

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DOOLING, J.

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