1. CLASS ACTION ADJUSTERS, INC.
85 WICKES AVE YONKERS, NY 10701
BUS: (845) 704-2737
FAX: (845) 625-1609
SEPTEMBER 4, 2014 RE: East Gate Commons
Facsimile Only Weight of snow and Ice Damages
OAM O'Connell, Attmore & Moris LLC
820 Trumbull Street (23rd Floor)
Hartford, CT 06103
ATTN: Susan Miller
Dear Susan Miller:
We are in receipt of your letter, received September 16, 2014, via Facsimile. We respectfully
disagree with your ascertain that this claim is ripe for Appraisal, and hereby must formally
deny your attempt to invoke the policy's Appraisal Clause. Without a formal order
compelling Appraisal by a Connecticut Superior Court of Jurisdiction, we will assume that
no Appraisal demand exists. Furthermore, regarding your comment(s) from your 9/16
correspondence, quoted below, it is our opinion and that of Counsel Jonathan Wilkowsky
Esq, as we quote his books dissertations that your support of the ripeness for Appraisal is
moot.
"...as nowhere in the policy does it allude to any requirements other than a disagreement.
The policy does not allow one side to thwart a demand for appraisal by saying there is no
"official dispute" nor does the policy require an offer, it only requires that one party to the
contract disagree."
Your reliance on the policy language to support the unilateral demand for appraisal fails on
several levels, including the very basic interpretation; the instant policy reads "if you and
we fail to agree on the amount of loss and damage". I respectfully ask, what is the
amount of loss ascertained by your client? Of course, in order to fail on agreeing to the
"amount of loss and damage", there would need to be a numerical value, on an RCV and
ACV basis, in order to even determine that there is an actual "disagreement".
2. You seem to be alleging that the policy's Appraisal Clause can be invoked upon "any
disagreement", and with light to the fact that your party has not provided it's opinion of the
amount of damages, we respectfully disagree with your opinion that Appraisal is yet
ripe. Your ambiguous statement, "any disagreement" would seem to allow Appraisal upon
the disagreement of any fact, even when having nothing to do with the amount of loss.
Further, I would be of the opinion that not only did you misrepresent the policy's language,
you also then add language that seemingly does not even exist in the instant policy,
alleging that there is a "disagreement as to the nature and amount of loss".
Respectfully, I am of the opinion that there is ample and prime facia evidence that your
interpretation of the policy appraisal clause, and it's procedural process is fallacious, based
upon a century's worth of established case law. Examples include, Continental Ins. Co. v.
Vallandingham & Gentry, 116 Ky. 287, 76 S.W. 22 (1903), where the Court has held that
"There must be an honest attempt made by the insured and insurer to meet on the question
of loss and damage before the appraisal should take place. The initial disagreement
between the parties without some effort to resolve that disagreement is generally not
sufficient to make the case ripe for appraisal." Furthermore, in Pando v. United States
Fidelity & Guar. Co., the Court held that "there was not yet a ripe disagreement, making the
claim unready for appraisal. The decision does not stand for the proposition that the filing
of a proof and appearance at an examination under oath are true conditions precedent."
I would also respectfully ask you to refer to the "Cooperation Clause" and it's compliance
prior to invoking the Appraisal Clause, as the Courts have been fairly uniform in holding the
parties to compliance with the cooperation clause prior to enforcing the appraisal provision,
particularly when demands are related to a full ascertainment by one of the parties of the
amount of loss and actual cash value. This is supported a vast amount of cases,
including, Jacobs v. Nationwide Mut. Fire Ins. Co., 236 F. 3d 1282 (11th Cir. 2001);
Galindo v. Ari Mut. Ins. Co., 203 F.3d 771 (11th Cir. 2000); Ferrer v. Fid. & Guar. Ins. Co.,
10 F. Supp.2d 1324 (S.D. Fla. 1998); United States Fid. & Guar. Co. v. Romay, 744 So.2d
467 (Fla. Dist. Ct. App. 3d Dist. 1999). See also; Terra Ind., Inc. v. Commonwealth Ins. Co.
of Am., 981 F.Supp. 581 (N.D. Iowa 1997); Ohio Farmer’s Ins. Co. v. Titus, 82 Ohio St.
161, 92 N.E. 82 (1910); Boston Ins. Co. v. A.H. Jacobson Co.,226 Minn. 479, 33 N.W.2d
602 (1948); Insurance Co. of N. A. v. Baker, 84 Colo. 53, 268 P. 585 (1928); Jersey Ins. Co.
v. Roddam, 256 Ala. 634, 56 So.2d 631 (1952); Harowitz v. Concordia Fire Ins. Co.,
129 Tenn. 691, 168 S.W.163 (1914); James v. Insurance Co. of Ill, 135 Mo. App. 247, 115
S.W. 478 (1909); Continental Ins. Co. v. Valladingham & Gentry, 116 Ky. 287, 76 S.W.
22 (1903); But see, Prudential-LMI Ins. Co. v. Promenade Condo. Ass’n, No. 98-1603
(S.D. Fla. 1998) (ruling contrary to Ferrer, 10 F. Supp.2d at 1324 so as to remain
consistent with Allstate Ins. Co. v. Sierra, 705 So.2d 119 (Fla. Dist. Ct. App.3d Dist. 1998))
and Sanchez v. Harbor Specialty Ins. Co., No. 98-1365 (S.D. Fla 1999).
Regards,
Ronald (Big) Cox
Public Insurance Adjuster
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