‘The showing of a pre-existing relationship, without more, does not support a finding of bias.” Franco v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 785 (Tex.App. — Houston [14th Dist.] 2004, no pet.).
Prior to appraisal, the insurer hires Garibay to inspect the Franco home and determine the cause of the damage. Garibay issued a report regarding his findings. Garibay’s findings were counter to the policyholder’s claim. Dissatisfied with the amount of loss offered by the insurance company, the policyholder requested appraisal. The insurance company appointed Garibay as its appraiser. Franco protested Garibay’s appointment because of his previous investigation of the leak. After the appraisal, the policyholder sought to set aside the award because Garibay was an ‘interested, prejudiced, and biased appraiser, due to his status as an investigating engineer . . . and the fact that he already had issued a report containing his opinions regarding the scope of appellants’ damages and coverage prior to his appointment as appraiser.’ Essentially, the policyholder argued that ‘Garibay had a predetermined opinion as to what the scope of his appraisal would be and was, therefore, biased against the Franco family.’
In refusing to set aside the award, the court found that 1) Garibay was not the insurer’s employee; 2) Garibay’s report and conclusions regarding the cause of the plumbing leak were his own; 3) there was no evidence suggesting that the insurer influenced or exercised control over Garibay; 4) that Garibay had a financial interest in Franco’s claim; or 5) that Garibay’s previous inspection of the premises somehow factored into his damages valuation. Id. “Moreover, the final appraisal award was entered into by Kuala, Franco’s appraiser, and the umpire.” Id.
‘The showing of a pre-existing relationship, without more, does not support a finding of bias.” Franco v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 785 (Tex.App. — Houston [14th Dist.] 2004, no pet.).
Update: As discussed in Section 3 (Must I Play Ball with the Insurance Company), at least one insurance company has a new appraisal clause limiting who may or may not serve as an appraiser. Given Garibay’s assistance in the claim prior to appraisal, it is doubtful Garibay (under State Farm’s new appraisal clause) would be able to serve as State Farm’s appraiser. Again, always check your appraisal clause (they are not all the same).
Disclaimer
This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this article or any of the e-mail links contained within the site do not create an attorney-client relationship between Thomas W. Hamrick and the user or browser. The opinions expressed in this article are the opinions of the individual author and may not reflect the opinions of other lawyers.
Coffee with Tom 