October 2016 E-Bulletin for Arbitrators

This month's E-Bulletin topics include:

  1. System Maintenance, November 2016
  2. QwikShare Recap: Considering Point of Impact Arguments
  3. Handling Liability Deductibles
  4. Recognizing Prior Payments
  5. Upcoming Arbitrator QwikShares — Enroll Today!

System Maintenance, November 2016

System Maintenance

AF is scheduled to perform system maintenance and upgrades. As a result, AF's website will be unavailable from 8 PM Eastern on Friday, November 11, 2016, to 10 PM Eastern on Sunday, November 13, 2016.

We apologize for any inconvenience this may cause our members. AF is committed to continuously enhancing our products and services. We thank you for your continued support.

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QwikShare Recap: Considering Point of Impact Arguments

How much weight should you give to point of impact arguments? Damage photos may or may not support a contention, depending upon what is shown in the photos and the specific contention made.

If the dispute involves damage that correlates with a specific collision mechanism, the damage is likely to tell the story. One example in which this is often true is a common parking lot mishap involving a car door making contact with another vehicle. The question for the arbitrator in this dispute is about proximate cause: Was the door open and struck by the party pulling into the area next to the car or was the car door opened into a vehicle next to it?

Let's consider an example in which the Applicant claims the Respondent opened its door into the Applicant vehicle, and the Respondent contends its door was open and the Applicant pulled into the adjacent space, pushing the Respondent's open door forward and causing crumpling to the door hinge area. The photos below fit with the Respondent's account because the Applicant's mirror stem shows an indentation that is consistent with the edge of a door, and the Respondent's damage near the hinge area is protruding; this could only have occurred if the door was open and pushed forward.

Image of a vehicle door impact

Let's consider a green light dispute in which there are no witnesses, the police report simply documents the conflicting driver accounts, and point of impact is argued as proof of who failed to yield to whom on a red light. The point of impact could vary considerably, for example:

Intersection graphic

We know that two parties approaching a controlled intersection from cross streets will not both face a solid green light, unless there is a rare lighting malfunction. Since both parties could not have had a green, one party would have had a red, and therefore, a greater duty to stop and yield the right-of-way to cross traffic. In this scenario, the point of impact does not indicate who had the red, and therefore, who failed to yield to whom.

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Handling Liability Deductibles

Applying a liability deductible to one of your third-party claims is very similar to an auto claim with a collision deductible, right? Is it the same when you're hearing an arbitration case that includes a Respondent with a liability deductible? In many ways it is — but with some important steps to include.

One possibility exists when the Applicant's Company Claim Amount is less than the Respondent's liability deductible. In this instance, the Respondent should assert an Affirmative Defense challenging Arbitration Forums' jurisdiction over the case, and it would look like this, stating, "Respondent 1 raised an affirmative defense of type Claim amount within Liability Deductible/Self-Insured Retention with the following justification: Insured has a $5,000 liability deductible. Alpha's Company Claim Amount is within the deductible."

Liability Document 1

The Respondent would include a copy of its dec page or a screenshot of its coverages to prove the liability deductible, and the arbitrator should grant the Affirmative Defense:

Liability Document 2

Another possibility exists when the Respondent has a liability deductible, but the Applicant's Company Claim Amount exceeds the liability deductible. The Respondent may assert an Affirmative Defense, so the arbitrator should determine if the liability assessment would result in an award over or under the liability deductible. If the award will be under the liability deductible, the same action as above applies, i.e., granting the Affirmative Defense.

If, however, the liability decision results in an award that exceeds the liability deductible, the Affirmative Defense should be denied because AF retains jurisdiction over a portion of the award:

Liability Document 3

The liability decision will be entered, allowing the system to calculate the total award in excess of the liability deductible.

Liability Document 4

The arbitrator will then check the "Override automatic award calculation" box, enter the explanation, and manually reduce the award by the liability deductible amount:

Screenshot of reduced award

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Recognizing Prior Payments

Prior E-Bulletin articles have explained how to correctly apply credits for prior payments. This article will point out where prior payments noted by the parties are displayed.

In the Hearing Document, the Applicant and Respondent tab will contain information regarding prior payments received and/or made, if applicable.

Payments

Sometimes the Applicant tab does not indicate a payment has been received, while the Respondent tab does show that such a payment was made. This could be due to the payment being made after arbitration was filed or simply Applicant omission. Sometimes both parties indicate a prior payment has been made/received and the amounts are the same (as noted in examples below). Other times, the amounts indicated will vary.

Depending on the scenario you are presented with when hearing a case, you'll now know where prior payment amounts are displayed, and you'll be able to refer to our prior E-Bulletin articles on how to handle them.

Applicant indicates prior partial payment received/accepted (deductible not sought):

Respondent indicates prior partial payment made (and deductible paid to Applicant insured):

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Upcoming Arbitrator QwikShares — Enroll Today!

Webinar Speech Bubble GraphicEnroll 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 Affirmative Defenses. During this instructor-led webinar, we will discuss the fundamentals of affirmative defenses. Participants will learn how to recognize whether an affirmative defense has been asserted and what to consider when ruling on it. Examples will be provided to illustrate the concepts discussed.

Enroll in Handling Prior Payments. Learn how to enter credits for prior payments argued by the Respondent, and ask questions via Chat.

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