Klubnikin v. California Fair Plan Assn.

[395]

Opinion

THOMPSON, J.

This is an appeal from a summary judgment which holds that an award of appraisers determined the amount payable by California Fair Plan upon a policy of fire insurance covering a building owned by William Klubnikin. We conclude that: (1) “appraisers” empowered by the terms of a policy of fire insurance to determine the “cash value” and “loss” utilized to ascertain the amount payable on the policy are arbitrators within the meaning of Code of Civil Procedure section 1280; (2) an award of the appraisers unchallenged within the time provided by Code of Civil Procedure sections 1288 and 1288.2 and confirmed by the superior court is final; and (3) because Klubnikin failed to file and serve a petition to vacate the award of the appraisers within that period, and because that award has been confirmed by the superior court, Klubnikin’s independent action upon the contract seeking damages in excess of the amount granted in the award of the appraisers is barred. We therefore affirm the summary judgment.

California Fair Plan issued its policy of fire insurance in the amount of

$12,000

covering a “Class D building occupied as [a] church” owned by Klubnikin. The policy insures the property “to the extent of [its] actual cash value. . . at the time of loss . . . .”

The policy states: “In case the insured and this company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser .... The appraisers shall first select a competent and disinterested umpire; . . . 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 any two when filed with this company shall determine the amount of actual cash value and loss. . . .”

On May 30, 1974, while the policy was in force, the property was damaged by fire. A second fire occurred on the property on July 15, 1974. When Klubnikin and California Fair Plan were unable to agree on the actual cash value or amount of loss, Klubnikin invoked the appraisal procedure. Over the disagreement of the appraiser selected by Klubnikin, the appraiser designated by California Fair Plan and the umpire determined that as to the loss of May 30, the actual cash value was $5,000, the loss and damage was $18,000, and “[t]he demolition and debris removal” was $1,600. The Fair Plan designee and the umpire also