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Home / Insurance / How to Avoid Waiving Your Right to an Assessment to Determine the Amount of Property Damage in Iowa | Real estate insurance coverage law blog

How to Avoid Waiving Your Right to an Assessment to Determine the Amount of Property Damage in Iowa | Real estate insurance coverage law blog



Many insurances contain a valuation clause that provides a mechanism for insurance companies and policyholders to resolve disputes between themselves regarding the size of the loss caused by storm or loss that causes event without a formal lawsuit. The assessment is "an appraisal" or "a valuation of property after appraisal by an authorized person." of the loss without the influence or guidance of the parties.

Often the independent valuation provision of an insurance gives the following:

2. Assessment.

If you and I disagree on the amount of the loss, either can make a written request for an assessment of the loss. In this case, each party will choose a competent and impartial valuer. The two values ​​choose a judge. If they cannot agree, both may request that the selection be made by a judge of a court of jurisdiction. The valuers state the amount of the loss separately. If they do not agree, they will leave their differences to the judge. A decision approved by two will be binding. Each party will:

a. Pay the selected appraiser; and
b. Bear the other costs of the assessment and the judge equally.

If there is an assessment, we will still retain our right to deny the claim.

Although this language is clear that each party chooses a competent and impartial valuer according to written requirements for assessment of the loss it does not provide a timeline for when a party should make a written request or when a party has to choose a valuer, which raises a number of questions. For example, do disputes from an insurance company exclude a policyholder's ability to invoke the insurance policy's valuation provision? Our office recently addressed this issue.

AKN LeClaire suffered hail damage to property located in Bettendorf, Iowa, and opened a claim with its carrier, Acuity. While the parties agreed that there was damage caused by the storm, they could not reach an agreement on the size of the damage. AKN LeClaire required that Acuity either send payment, call or name your valuer. Acuity then filed a declaration lawsuit, asking the court to rule that it owed only the damages identified by its engineer. Our office filed a counterclaim to order the parties to assess, which Acuity claimed had waived AKN LeClaire's response to the lawsuit. assessment:

& # 39; [W] after assessment is not required until after the application has been filed, the question is whether the assessment requirement was waived or instead made within a reasonable time after the deadlock was reached. & # 39; Terra Indus., Inc., 981

F. Supp. at 599.

. . . .

Under Iowa law, waiver is "voluntary or intentional waiver of a known right." Scheetz v IMT Ins. Co. (Mut.) 324 N.W.2d 302, 304 (Iowa 1982) (citing Travelers Indem. Co. v. Fields 317 N.W.2d 176, 186 (Iowa 1982)). "Exceptions may be shown by a party's affirmative action, or may be derived from conduct that supports the conclusion that the exception was intended." Id. "When the exception is implied, intent is determined by the facts and circumstances that constitute the exception." Id. Here the defendant did not expressly waive his right to invoke the tax provision. Thus, the court must examine the facts and circumstances in order to determine whether it can conclude that the defendant intended to waive his right to an assessment. See id.

. . . .

In order to determine whether a party has waived its judgment, the courts consider that "the claim is relevant in the light of the circumstances which existed at the time the claim was made" and "whether there was any damage to the other party. with demanding a valuation. & # 39; Id.

Although the fact that disputes have been initiated is a relevant factor in determining whether the defendant waived his right to a valuation, Terra Indus., Inc. 981 F. Supp. The defendant clarified that it made an evaluation at its first opportunity, ie when it submitted its reply to the plaintiff's amended complaints and counterclaims, see ECF No 8 at 15-17, 19-20. only four months elapsed from the time the plaintiff lodged his complaint omål and the defendant's next written request for an assessment. The fact that the defendant complied with the rules of procedure of the court instead of imposing a standard judgment should not be held against it. Thus, the court concludes that the defendant made his claim for assessment within a reasonable time. 2

Judge Pratt's order thoroughly discusses the pitfalls that an inexperienced policyholder may face when trading his insurance company. Had our client not explicitly required evaluation before, and in response to the lawsuit from Acuity, there is a high probability that remedial action would have been waived. Do not hesitate to contact our office if you are facing a similar scenario or if you have questions that generally concern your property insurance claim in Iowa.
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1 Unetco Indus. Exch. v. Homestead Ins. Co. 57 Cal.App. 4th 1459 (1997).
2 Acuity Mutual Ins. Co. v. AKN LeClaire No. 3-20-cv-99 (S.D. Iowa May 17, 2021).


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