April 2016 E-Bulletin for Arbitrators

This month's E-Bulletin topics include:

  1. Damages Disputed?
  2. Entering Reduced Damages
  3. Upcoming Arbitrator QwikShares — Enroll Today!
  4. Police Reports: Relevant and Credible Evidence?
  5. Policy Limits Accepted
  6. Member Feedback... Thank You, Arbitrators!

Damages Disputed?

Our Arbitrator Help Desk sometimes receives questions from arbitrators regarding Rule 2-5 and whether damages have been properly disputed on a case they are hearing. The following is provided to clarify Rule 2-5 and help you resolve disputes regarding the amount of damages sought.

1. Have damages been properly disputed?

Rules 2-5 and 3-5 (e) specifically state that damages arguments contained anywhere other than in the Disputed Damages section may not be considered by an arbitrator. Cases involving disputed damages are easily recognized — if argued correctly — as the Disputed Damages Description appears on the initial Decision Entry Web page (example below). If this section indicates that damages were not disputed, and you find arguments disputing the amount of damages sought in another section, damages have not been properly argued and are not in dispute. (You will make a Damages Decision entry such as "Damages arguments not considered, as they were not properly argued in the Disputed Damages section.")

Image of a woman speaking with a police officer

2. Is the information in the Disputed Damages area sufficient?

Assuming the responding company properly disputes damages, the next question we receive is, "Is the information contained sufficient?" If you have to ask this question as the arbitrator, the answer may be "no." Rule 2-5 provides that the responding company must "present all damages arguments and disputed dollar amounts, if known, in the Disputed Damages section." Needless to say, the more detailed the information is regarding what damages are disputed and what amount, the easier you, as the arbitrator, will be able to resolve the dispute. Simply arguing that the Applicant overpaid the claim or that "rental was excessive" without a specific reason or what the proper amount should be will make it difficult for you to consider the argument or agree with its position.

You have the discretion to deny the Respondent's damage dispute (award "All" proven damages) and explain your decision in the Damages Decision field.

Image of a woman speaking with a police officer

The exception is where the responding company has not been provided with the proof of damages. This is the scenario that the "if known" in Rule 2-5 is intended to address. Specifying the disputed dollar amount(s) necessitates that information as to what the filing company is seeking has been shared with the responding company. As such, in the scenario where proofs have not been shared, you are free to reduce the amount of damages at your discretion, based on the evidence, so long as the responding company made its argument in the Disputed Damages section.

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Entering Reduced Damages

Scenario: Applicant seeks recovery of $800 ($700 collision plus $100 rental). Respondent disputes $50 rental arguing that repair time is equivalent to two days of labor (rental rate equals $25/day); total amount owed equals $750.

As the arbitrator, you consider the arguments regarding the disputed damages and decide that the Respondent has proven its reduced amount. How do you enter your Damages Decision?

  1. Select "Reduced Damages."
  2. Enter $750 in the Damages Proven field.
  3. Explain and/or itemize the damages proven so it is clear to the parties what damages are awarded.

Screenshot of the Damages Decision section

Do not use the "Damages Proven" entry to:

  • Apportion damages by the percent of liability proven — The system will automatically calculate the proven liability percentage by the proven damages amount.
  • Account for policy limits or pro-rata share — Use the "Award Override" function.
  • Apply a prior payment — Use the "Include Credit for Prior Payments" function.
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Upcoming Arbitrator QwikShares — Enroll Today!

Webinar

Enroll today for our upcoming Arbitrator QwikShare Webinars! Our QwikShares are 20-minute, topic-specific Webinars that focus on issues that frequently generate questions from arbitrators and post-decision corrections, and attendees may ask questions via Chat. We know your time is valuable. We hope you'll appreciate and take advantage of the opportunity for AF to quickly share important feedback and tips without a significant investment of your time.

Enroll in Hearing "No Answer" Cases. Learn what to consider when hearing a case where the Respondent has not submitted an answer. Covered scenarios include: Applicant argues both liability and damages, and Applicant states liability has been conceded and argues only damages. Attendees will have the opportunity to ask questions via Chat.

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Police Reports: Relevant and Credible Evidence?

Image of a woman speaking with a police officer

This article discusses police reports, specifically, the reporting officer as a witness. Decisions noting, "Police report is favorable to Alpha, but officer did not witness the loss," are common.

Police officers rarely actually witness accidents. They are, however, trained to investigate, including taking statements from each driver and any witnesses and analyzing road debris, skid marks, light sequence, and damage to the vehicles.

When a party argues that the police officer "did not witness" the accident, do not simply disregard the report. Review the police report for its accuracy and consistency in regard to the contentions and other evidence submitted by the parties. For example, was the police report "phoned in" and represents only one driver's version of the accident or was it written at the scene? Does it include statements taken from each driver? Did the officer note his or her observations regarding damage, scene location, debris, witnesses, etc.? Were any contributing factors noted?

The parties are free to refute any of the officer's findings on the report; however, simply arguing that the officer did not witness the accident is not valid.

Stating something like "police report cited Beta for following too closely, however, review of Alpha and Beta statements and the scene diagram do not support this" would be more appropriate. Alpha might be disappointed with this comment, but it would be more disappointed if its evidence was not considered at all. If the Respondent states the police report statement given by the Applicant is not consistent with the recorded statement provided to the Respondent, you would need to clarify how they differ and what conclusion you drew from the inconsistency.

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Policy Limits Accepted

Before the affirmative defense of policy limits is granted due to the award exceeding the limit, remember to view the Applicant's information to see if it has accepted policy limits. If accepted, and there are no other issues (i.e., multiple exposures, pro-rata share, insured out-of-pocket interest), the affirmative defense can be denied and the award for policy limits entered using the Override option.

Screenshot of the Party Information screen

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Member Feedback... Thank You, Arbitrators!

Thank You

The following is recent member feedback on decisions. Kudos to all on providing the high-quality decisions our membership values and appreciates.

"The explanation was well justified and made sense. That's about all we can ask for."

Thank you, Arbitrator Amy Greene!

"I think the arbitrator did a good job of actually reviewing the evidence that I presented, and she had a good summary for that information. I was happy with the decision on this one."

Thank you, Arbitrator Jessica Capman!

"The fact that she took into consideration what investigation the expert did and did not do in the report. It looked like she very carefully considered all the evidence, and that was important in this case."

Thank you, Arbitrator Melinda Watson!

"She reviewed all of the evidence and made the right decision. Not that it was in my favor, it was just the right decision."

Thank you, Arbitrator Lauren Hession!

"I thought the explanation that she provided with her decision was more than adequate and understand why the decision was what it was."

Thank you, Arbitrator Valerie Korhut!

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