374 F2d 888 Brown v. Glen Falls Insurance Company

374 F.2d 888

J. Ottis BROWN, Alvin M. Brown and Lavaughn E. Newbern,
trading and d/b/a Ottis Brown Motors, Appellants,
v.
GLEN FALLS INSURANCE COMPANY, Appellee.

No. 23731.

United States Court of Appeals Fifth Circuit.

March 30, 1967.

Joseph C. Jacobs, Richard W. Ervin, III, of Ervin, Pennington, Varn & Jacobs, Tallahassee, Fla., W. J. Winburn, Jr., Live Oak, Fla., for appellants.

William M. Howell, Howell, Kirby, Montgomery, Sands & D'Aiuto, Jacksonville, Fla., for appellee.

Before PHILLIPS,1 COLEMAN and SIMPSON, Circuit Judges.

PER CURIAM:

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1

Ottis Brown Motors, hereinafter call-the Insured, brought this action against Glen Falls Insurance Company to recover on a policy issued by the Insurance Company damages caused by flood and storm to automobiles owned by the Insured and covered by the policy. The insurance contract provided that either the Insurance Company or the Insured might demand an appraisal if they could not agree on the amount of loss. In accordance with the terms of the policy, an appraisal was entered into between the parties, and appraisers and an umpire were selected. The umpire filed a report in which he stated the amount of the loss.

2

The damaged property consisted of automobiles. The appraisers agreed as to the amount due for a total loss of six of the automobiles and a draft of the Insurance Company for that amount was tendered to and accepted by the Insured. The umpire found the amount of the damage to the remaining automobiles to be $1,558.42, being the amount fixed by the Insurance Company's appraiser. The tender of a draft for that amount was refused by the Insured.

3

The trial court awarded a summary judgment in favor of the Insurance Company. There were no disputed issues of fact. A careful examination of the record leads us to conclude that there was no legal ground for setting aside the decision of the umpire. It follows that the Insured was not entitled to recover and the summary judgment should be and it is affirmed.

1

Of the Tenth Circuit, sitting by designation