Here is a homeowners claim that has a different twist to it. The case is from the Southern District of Texas, Corpus Christi Division, and is styled, Kenneth Stokley v. Allstate Texas Lloyds.
In this case the Plaintiff, Stokley filed a Motion to Compel Appraisal and Allstate is trying to avoid the appraisal claiming the appraisal provision in the insurance policy should not be enforced because Stokley delayed his request for appraisal and Allstate is prejudiced by the delay and Stokley already made repairs and thus, waived the appraisal.
Mere delay is not enough to find waiver; Allstate must show prejudice. Allstate argues Stokley intentionally delayed to increase pre-judgement interest to accrue on damages.
Allstate argues that appraisal is a pre-suit remedy and that its post-suit invocation prejudices Allstate.
The appraisal provision in this case anticipates a demand for appraisal after suit is filed. Thus, the expense of defense was anticipated by Allstate when formulating its policy.
Next, the policy imposes a two year limitations provision. This forces a lawsuit earlier than would otherwise be necessary under the four year breach of contract limitations period.
Next, the appraisal provision allows for either party to make a demand for appraisal.
Case law does not support a finding that the appraisal remedy was waived in this case.
The appraisal demand was made before the Court’s initial pretrial conference. In a situation where litigation proceedings have only begun, appraisal has not necessarily been waived. Allstate had not identified any conduct other than the filing of suit that is allegedly inconsistent with Stokley’s invocation of his appraisal remedy.
Stokley’s appraisal demand was filed approximately five months after the case was originally filed, however because there were no other proceedings intervening, Allstate cannot demonstrate any plaintiff induced delay, expense, or alternate resolution of the merits during the time the case has been pending.
Allstate also argues that Stokley’s repair of some of the damage, the fence, has rendered appraisal impractical and prejudicial.
There is no claim here that the damaged property was in need of cleaning rather than repair and replacement. And the property that has been repaired is only part of the claim. The repair of the fence does not negate the benefits to be gained by appraisal of other property damage.
The Court granted Stokley’s Motion To Compel Appraisal.