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Starczewski v. Unigard Insurance Group

as corrected. second correction.: May 13, 1991.

FRANCISZEK P. STARCZEWSKI, ET AL, APPELLANTS,
v.
UNIGARD INSURANCE GROUP, RESPONDENT



Webster, A.c.j. Pekelis and Forrest, JJ., concur.

Author: Webster

Franciszek and Janina Starczewski own property insured by Unigard Insurance Group that was

destroyed by a fire. The Starczewskis, pro se, appeal the trial court's findings of fact and conclusions of law concerning amounts due under Unigard's policy. Starczewskis assert that the trial judge erred in: (1) refusing to award prejudgment interest from the date of the fire, (2) declining to find that Unigard violated the Consumer Protection Act and award additional sums under the act, (3) valuing the "actual cash value" of the premises at only $50,000 as opposed to $61,000, (4) failing to award an amount for debris removal, (5) declining to award an amount for lost rents in excess of the limits stated in the policy, (6) failing to find that the Starczewskis lost their right to legally maintain a nonconforming duplex on their property, and (7) failing to recuse himself and improperly interjecting his biases into the decision. We affirm.

Facts

The Starczewskis own a duplex located at 2120 N.E. 54th Street in Seattle. On February 26, 1982, the duplex caught fire, and the southwest corner of the second floor and roof were destroyed. The Starczewskis had been renting out the duplex prior to the time of the fire.

In June of 1984 the trial court granted Unigard's motion to submit the fire loss to appraisal. The appraisers appointed by the Starczewskis withdrew, and the court eventually appointed one for them in 1986. The appointed appraisers then elected a third appraiser/umpire. The appraisers entered an award of $24,000 on June 27, 1986, plus $3,050 for lost rents. The Starczewskis' appraiser dissented from the award.

Condition 5 of Unigard's policy states:

Loss Settlement. Covered Property losses are settled at actual cash value at the time of loss but not exceeding the amount necessary to repair or replace the damaged property.

(Italics ours.) The $24,000 appraisal award was based on the "amount necessary to repair or replace the damaged property", not on "actual cash value at the time of loss".

Starczewskis contended that 50 percent of their property was destroyed and that the Seattle building code therefore required that they demolish their building and remodel it to conform with present building code standards. In 1986, when the $24,000 appraisal award came before Judge Otero*fn1 for approval, the Starczewskis argued for the first time that Unigard's policy obligated it to account for the cost of conforming the building to present code requirements in determining the "amount necessary to repair or replace". Confronted with this new issue, the trial court made no ruling and did not approve the award. Although the loss disputes continued, Unigard made advance payments to the Starczewskis in 1986 in the amount of the appraisal award, plus interest from the date of the award.

Charles Mertel was appointed judge pro tempore by stipulation of counsel and the case was tried without a jury on July 24-28 and September 1 of 1989. The court entered findings of fact and conclusions of law on November 9, 1990. It held as a matter of law that, under Unigard's policy, the "amount necessary to repair or replace" includes the cost of repairs necessary to conform with present building code requirements. The court found, however, that the evidence conflicted as to whether the City in fact would require the Starczewskis to tear down the existing building or, instead, permit them to maintain a nonconforming building. Nevertheless, the court factored the probable cost of complying with building code requirements into the "amount necessary to repair or replace" only for the purpose of determining the correct standard for measuring loss. Finding that the cost ...


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