PWD, Inc. et al v. Travelers Indemnity Company of America, The

Filing 33

ORDER granting 23 Motion for Appointment of Umpire by Judge Raymond P. Moore on 3/20/19. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:17-cv-2561-RM-KMT
PWD, Inc. d/b/a Pacific West Development,
Plaintiff,
v.
The Travelers Indemnity Company of America,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Following alleged hail damage to its commercial properties, Plaintiff brought this
diversity matter seeking statutory and contractual damages for Defendant’s alleged unreasonable
delay and denial of timely insurance benefits payments. (See generally Am. Compl., ECF No. 5.)
At the parties’ joint request, the Court stayed this matter pending completion of Plaintiff’s
demanded appraisal under the insurance policy at issue. (ECF No. 21.) While the parties
originally insisted that the appraisal would “be completed within [ ] two to three months,” they
have reached a standstill, and Defendant now moves the Court to appoint an umpire to settle the
difference between the figures reached by the parties’ respective appraisers, as procedurally
provided for in the relevant insurance policy. (Motion, ECF No. 23; see also Policy, ECF No.
12-1, at 48.) Naturally, but uneconomically, the parties and their respective appraisers have
provided lists of individuals who they deem best suited for the umpire role, but they cannot agree
on any one individual to serve—leaving this task to the Court. (See generally Motion; Response,
ECF No. 25; Reply, ECF No. 27.)

With respect to the appraisal process, the Policy provides:
If [the insured and insurer] disagree on the value of the property or
the amount of loss, either may make written demand for an
appraisal of the loss. In this event, each party will select a
competent and impartial appraiser. The two appraisers will select
an umpire. If they cannot agree, either may request that selection
be made by a judge of a court having jurisdiction. The appraisers
will state separately the value of the property and amount of loss.
If they fail to agree, they will submit their differences to the
umpire.
(Policy, ECF No. 12-1, at 48.) The Policy requires no qualifications or characteristics of a
selected umpire. As recounted in the Motion, Defendant’s appraiser offered Plaintiff’s with four
choices—all persons with extensive structural engineering and/or construction experience.
(Motion at 2; see also Resumes of Peter Marxhausen, Carl F. Mangone, Chris Warlow & Brian
Schupbach, ECF Nos. 23-1, 23-2, 23-3, 23-4.) On the other hand, Plaintiff’s appraiser provided
thirteen names—all out-of-state except for Laura Haber, who has pleaded nolo contendere to
second degree grand theft (ECF No. 23-6, at 50) and will not be selected by this Court, and
Richard Meyers, an experienced mediator (ECF No. 25-2).
Plaintiff attempts to undermine the Motion in two ways, neither of which calls into
question the capability of Defendant’s appraiser’s choices. Plaintiff first questions, without any
concrete basis, this Court’s jurisdiction to appoint an umpire. (Response at 1.) But there is no
doubt the Court has that power. See, e.g., Owners Ass’n of Bella Vista Villas, Inc. v. Owners Ins.
Co., No. 16-CV-1018-WJM-NYW, 2017 WL 6054887, at *3 (D. Colo. Dec. 7, 2017)
(“Certainly, the Court might choose to grant a request to select an umpire, and in many cases that
would be a reasonable exercise of the Court’s powers and jurisdiction, in service of the ‘just,
speedy, and inexpensive determination’ of the cases before it.”) (citing Fed. R. Civ. P. 1 & 7(b)).

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Next, Plaintiff insinuates that Defendant has not established that either appraiser has
requested that the selection be made by a judge. (Response at 1.) While Defendant has indeed not
provided in its Motion any direct evidence of the appraisers’ disagreement, the Response does
not quibble with the truth of Defendants’ representations, and instead narrowly limits its
argument to support selection of Richard Meyers, who has previously acted as an umpire on
property insurance disputes. (Response at 2; Meyers Resume, ECF No. 25-3.) However, it is
unclear whether Meyers has any experience related to roof repair or hail damage.
Upon review of the candidates advanced by the parties, the Court finds Christopher C.
Warlow suitable to serve as umpire based on his certification in roof repair and maintenance and
thirteen years of experience as an executive consultant in roof damage evaluations and costs
estimates related to, among other things, hail damage. Therefore:
1) The Motion (ECF No. 23) is GRANTED.
2) It is ORDERED that Christopher C. Warlow shall be appointed to serve as
umpire of the parties’ appraisal disagreement.
3) The entire action remains STAYED pending completion of the appraisal process.
4) As set forth in the Court’s previous Order (ECF No. 21), within 14 days of the
completion of the appraisal process, the parties shall jointly file a status report
advising the Court as to how they wish to proceed.
DATED this 20th day of March, 2019.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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