Hyland

In the petition for rehearing petitioner Hyland cites the recent case of Koyer v. Detroit Fire & Marine Ins. Co., 70 P.(2d) 927, a decision by the California Supreme Court. The opinion in that case discloses that the insurer charged and proved that the insured’s and insurer’s appraisers had selected a third; that the insured objected to the latter and a month’s delay ensued before the two selected another third for umpire. It was not proved that the insured’s protest against the first arbitrator caused the delay. Nor was it shown that insured’s appraiser had been any more responsible for the delay than the insurer’s. Evidence of bad faith on the part of the insured was offered, but its causal connection with the delay and failure to appraise was not shown. When the 90-day period had elapsed the insured withdrew from the appraisement and began the suit.

The court found the insured had not been proved to have caused the failure of the arbitration, and held:

“It is conceded by plaintiff, as it must be, that the provision for the appraisement of the loss is a valid one and that, unless he has done that which was required of him with reference to an appraisement, he has no right to…

(dissenting).

One ground upon which recovery by appellant was denied is that the failure to appraise the loss was attributable to the insured because of his appointment of an alleged “interested” appraiser. In reaching that conclusion the majority stated that “on a showing of the absence of such a fair effort [to obtain arbitration] on the part of the insured, the insured-could not recover.” (C.C.A.) 91 F.(2d) 735, 737 . An early case, Old Saucelito L. & D. Co. v. Commercial U. A. Co., 66 Cal. 253 , 5 P. 232 , was relied upon to sustain that doctrine.

After that decision the statute requiring the provisions in the policies in question regarding appraisement was passed, and that statutory provision was interpreted in Koyer v. Detroit Fire & Marine Ins. Co. (Cal.Sup.) 70 P.(2d) 927, decided since the opinion herein.

The gist of that case, in so far as it is applicable here, lies in the announcement of the doctrine that an award by arbitrators under the terms of the policy was not a condition precedent to plaintiff’s right to sue on the policies.

In arriving at this conclusion the California court held that the question of good or bad faith of the insured was not material, that…