In case the Insured and this Insurer shall fail to agree as to the scope of, or the amount of, loss or damage, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty (20) days of such demand. The appraisers shall select a competent and disinterested umpire.
If the appraisers fail for fifteen (15) days to agree upon such umpire, then the appraisers shall simultaneously exchange lists of five proposed umpires. If the lists include a common proposed umpire, that person shall become the umpire for the appraisal. If the lists do not include any common proposed umpire, then each appraiser shall strike four names from the other appraiser’s list, thereby leaving one remaining proposed umpire on each list. A coin then shall be tossed, with the appraiser appointed by the Insured calling heads or tails. The winner of the coin toss shall select the umpire from the two names remaining on the lists.
This Court is persuaded by Justice Feinman’s approach, i.e., to combine each proposed method, and therefore adopts it here, but with a slight modification. Justice Feinman recognized that, by combining the ranking method and the strike and draw method, a tie in the rankings might arise. Justice Feinman incorporated the element of chance from the strike and draw method used to break the tie, i.e., a coin toss. However, Justice Feinman indicated that the winner of the coin toss would appoint the umpire.
There is a subtle difference between the breaking a tie among two possible selections with a coin toss versus granting the winner of the coin toss the unilateral right of appointment, although the two methods may be, as a practical matter, functionally equivalent. Under the latter method (chosen by Justice Feinman), the element of chance is removed from the selection of the umpire by one degree. That is, the element of chance does not directly determine the umpire; rather, the winner of the coin toss chooses the umpire. To be faithful to the direct role of the element of chance in the strike and draw method, the umpire (or third arbitrator) must be drawn by random lot in the event of a tie in the rankings of the umpire (or third arbitrator.)
I was thinking about judges and the various methods they use to select an umpire. I have seen it all. Once, a judge took a finger down the yellow pages of the attorneys listings with his eyes closed and then stopped. That is how the umpire was selected. The coin flip or drawing of lots is probably better than that.
Talks of Thomas Hardy
