What Do Judges Consider When Selecting Umpires? Proximity Is a Factor

A United States District Court for the District of Hawai‘i recently issued an order that highlights a critical but sometimes overlooked geographic proximity factor in the appointment of appraisal umpires. ¹ Though both parties proposed highly qualified retired judges to serve as umpire in a court-ordered appraisal, the court ultimately appointed the Honorable James E. Duffy, a retired justice of the Hawai‘i Supreme Court, over the insurer’s nominee, Judge Faith S. Hochberg, a retired U.S. District Court judge from New Jersey. The court’s rationale provides important guidance for selecting neutral umpires in appraisal proceedings.

Both Justice Duffy and Judge Hochberg brought impeccable credentials. Justice Duffy had over three decades of experience as a trial lawyer and nine years on Hawai‘i’s highest court, and he had served as a mediator, arbitrator, or special master in more than 300 matters. Judge Hochberg, likewise, had significant experience in complex litigation and served on the federal bench for several years. Neither party questioned the integrity, availability, or impartiality of the other’s nominee. With qualifications and impartiality evenly matched, the court turned to a third and decisive factor: proximity to the site of the loss.

In its filings and supplemental letter to the court, BRE Hotels emphasized that Justice Duffy’s deep connection to Hawai‘i was essential. Citing both contemporary and historical case law, BRE argued that appraisers and umpires with localized knowledge are better equipped to assess construction costs, understand storm impacts specific to the region’s microclimates, and evaluate the realities of repair and reconstruction in Hawai‘i’s unique setting.

This was not just a matter of convenience. It was a matter of substantive insight. The policyholder cited cases going back more than a century to show that courts have long favored local umpires who can bring context-specific expertise to bear on questions of property value and scope of loss.

The court agreed. Its order reaffirmed the three central criteria used in umpire selection:

1. Experience with the type of loss at issue
2. Lack of bias
3. Geographic proximity to the damaged property.

The first two criteria being neutral, the court found proximity to weigh heavily in favor of Justice Duffy. His long-standing presence in Hawaii meant he was already familiar with local construction dynamics and pricing realities. His appointment would also avoid the additional travel and lodging costs that would inevitably result from appointing an umpire based on the mainland.

This ruling offers a valuable lesson for parties engaged in appraisal disputes. While experience and neutrality are baseline requirements, courts will give meaningful consideration to geographic proximity when all other factors are relatively equal. Familiarity with local conditions, costs, and practices can become a decisive advantage in litigation over umpire appointments, particularly in regions with unique environmental or economic characteristics.

The court’s decision to appoint Justice Duffy not only recognized his qualifications and judicial temperament but also affirmed the importance of selecting an umpire who understands the local context. The ruling is a strong reminder that local knowledge can matter as much as technical expertise when a judge selects the umpire.

Thought For The Day 

“The umpire said I was safe, and that’s all that matters. Now, whether I actually was is up for debate.”
— Yogi Berra

¹ Bre Hotels & Resorts v. Ace American Ins. Co., No. 24-00159 (D. Haw. Apr. 25, 2025).