Federal Magistrate Judge Kyle Dudek recently issued the following Order: 1

Because the parties have not agreed on an umpire, the Court will set an in-person hearing for the appraisers to appear along with counsel to advise the Court of their respective objections to their counterpart’s proposed umpires. The Court will set this hearing by separate notice. If the appraisers agree on an umpire before the hearing, the parties must file a notice and the hearing will be cancelled. The parties should also be prepared to discuss Defendant’s arguments about the form of the award at the hearing.

Let’s put you, our readers, in the hot seat—imagine you’re the judge or even an appraiser in this scenario. Who would you pick? How would you make your decision? Should the judge call for the appraisers to show up in person at the hearing?

Now flip the script: if you were an appraiser, would you be worried if the judge asked whether the party who appointed you gave you a list of “approved umpires”? And if you were the judge, would you feel less inclined to pick someone suggested by the parties involved?

Decisions, decisions—what would you do?

It may be the appraisers or parties will follow my advice in “New York Appraisal—Can a Federal Judge Choose the Umpire” and agree:

And then there’s the judicial wild card. If both parties to the contract can’t agree on an umpire, a judge takes over the reins. Here’s where things get even more unpredictable. Having been in the trenches, I can tell you that there’s no guidebook for predicting or understanding how a judge will approach the task of umpire selection. Will they prioritize industry experience, an even-tempered disposition, or something else altogether? Your guess is as good as mine.

Because of this uncertainty, my advice to appraisers and parties has remained steadfast for over a decade: strive to find common ground in selecting an umpire you both can trust. In other words, “Stay with the Devil You Know.” Why roll the dice with a judicially appointed umpire when the devil you’ve jointly chosen is—at least—one whose temperament and integrity you both have had a say in?

Here is the filing by the insurance company:

Here is the filing by the policyholder:

Thought For The Day

When you come to a fork in the road, take it.
—Yogi Berra

1 Pleasant Hill Christian Church Ministries v. Ohio Security Ins. Co., No. 2:24-cv-417 (M.D, Fla. Nov. 18, 2024).