Advise & Consult
One of the most entertaining—and frustrating—aspects of property insurance litigation is trying to predict what a judge will do, there is often far less predictability than lawyers would like. When it comes to umpire selection, judges frequently rely on instinct rather than any clear formula.
Sometimes they appoint someone they know and trust. Sometimes they choose a résumé that looks impressive on paper. And occasionally, they pick someone who leaves both sides wondering, How did we get here? For those who follow umpire-selection disputes, the process can feel a bit like a game show.
So today, let’s play another round.
The Setup: A Familiar Appraisal Dispute
A recently filed case in Wisconsin federal court presents a textbook example of how these disputes arise. The policyholders and their insurer could not agree on the amount of loss. The appraisal process was invoked. The appraisers couldn’t agree on an umpire. As the policy allows, the court was asked to step in and make the appointment.
The insurer moved the court to appoint one of three proposed candidates. On paper, these nominees were highly qualified professionals in the building investigation and appraisal world:
- A structural engineer with decades of experience investigating hail, wind, and structural damage
- A forensic engineer specializing in roofing systems and building-envelope failures
- A professional with extensive experience conducting insurance appraisals and property inspections
From a purely technical standpoint, there was no question that these individuals understand buildings, roofs, and storm damage.
The Policyholders Push Back
The policyholders opposed the motion, arguing that none of the insurer’s candidates could serve as truly impartial umpires. Their position was that all three individuals primarily work for insurance companies and derive most of their income from insurer-side consulting work.
To support that argument, the policyholders submitted a declaration from a professional appraiser who stated that he was familiar with the proposed umpires and believed they could not function as neutral decision-makers in this dispute.
The policyholders also highlighted a potentially troubling connection: one proposed umpire works for the same engineering firm that had already been involved in evaluating the claim at issue. Judges tend to be wary of this type of overlap, as it raises concerns about affiliation with an entity already tied to the investigation.
A Strategic Twist
Rather than offering their own preferred list of candidates, the policyholders took a different approach. They told the court they were not attempting to install their own favored umpire. Instead, they asked the judge to appoint a neutral of the court’s choosing—or to direct that an umpire be selected by the American Arbitration Association.
In effect, the message was simple: We trust the court more than the insurer’s nominees.
What Judges Are Really Thinking
When a court appoints an umpire, it isn’t just choosing a person—it’s protecting the integrity of the appraisal process itself. Judges know that appointing someone who appears biased or conflicted invites future challenges to the appraisal award. No judge wants to create that kind of mess.
While the insurer’s candidates clearly possess technical expertise, judges don’t always view the umpire’s role as that of a third construction expert. Many courts see the umpire primarily as a neutral decision-maker—a tie-breaker—while the appraisers supply the technical knowledge.
From that perspective, neutrality and credibility can matter more than engineering credentials.
The policyholders’ declaration may not definitively prove bias. Judges are well aware that the appraisal world is relatively small and that many professionals work for insurers and policyholders at different times. Still, what the declaration does accomplish is underscoring a lack of trust in the insurer’s nominees.
And when both sides are questioning the neutrality of industry insiders, judges often look for the cleanest way out.
The Big Question
So what will the court do?
- Will it select one of the insurer’s proposed engineers or appraisal experts based on technical expertise?
- Will it reject those nominees and appoint a neutral from outside the industry—perhaps from the legal or mediation community?
- Or will it take the middle road and send the issue to the American Arbitration Association to select the umpire?
The court hasn’t ruled yet.
But the answer, when it comes, may reveal far more about how judges truly think when they are asked to appoint the person who will ultimately decide the amount of loss.
Stay tuned.
Written with help of AI.
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.