April 2018 E-Bulletin for Arbitrators
This month's E-Bulletin topics include:
- Policy Limits Affirmative Defense with Multiple Parties
- Proof of Damages – Specialty Vehicles
- Member Feedback... Thank You Arbitrators!
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Policy Limits Affirmative Defense with Multiple Parties
You are an arbitrator, and you’re hearing a case. You see that there is an Affirmative Defense (AD) asserted for Policy Limits, so you want to take a closer look. Upon further inspection, you see that the Applicant has filed this auto case for recovery of $12,500 in damages. The AD asserts a $25,000 policy limit. Seems like a slam dunk, right? Apparently so, but you then see that although this case involves only two parties, both indicate that there are a total of five cars involved in the accident. The Respondent asserts that the case cannot be heard due to the multiple parties and the potential that other claims will be pursued against the policy limit.
With this new information, what are the questions that you want answered before you make a decision on the AD? Although it’s not a complete set, here are some that can affect whether the policy limits are sufficient.
- Can you make a liability determination to set what negligence you would apply to the Respondent? If you find the Applicant failed to prove any liability on the Respondent, it doesn’t matter how many other vehicles are involved. If you find some or all of the negligence can be attributed to the Respondent, what information is valuable next?
- Has either party provided any damage information on the other parties? The extent of damages for the other three vehicles will determine if the $25,000 limits will be enough. If yes, it should be a matter of applying the Respondent’s liability percentage to the damages known.
- If damage amounts are not known, are there other indicators?
- Does the police report show that any of the vehicles were towed or the amount of estimated damage? Although towing or estimated damages are not foolproof indicators, combined with other facts, they can give a general idea of damages.
- What about the time lapse between the date of accident and the arbitration filing? Damages to vehicles are usually determined and communicated relatively quickly following an accident. Damages to real property, such as utility poles, buildings, guard rails, and retaining walls have a tendency to take longer to repair or replace, thus determining the expense.
The answer, then, to the question, “Should I grant or deny the AD in this case?” lies in the answers to the above and possibly more questions. It could involve an educated guess on your part if the specific information is not available or it could be as clear as your liability decision!
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Proof of Damages – Specialty Vehicles
Claims involving specialty vehicles are not common and present challenges for the subrogated carrier.
In many instances, proving damages may not be boiler plate, and there may be other ways in these unique situations to prove one suffered damages other than a traditional repair estimate. As always, arbitrators should give consideration to any evidence that is submitted.
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Member Feedback... Thank You Arbitrators!
The following is recent member feedback on decisions. Kudos to all for providing the high-quality decisions our membership values and appreciates.
“The fact that she took the time to outline what she used to render her decision. It was pretty lengthy. She gave examples of what she found on each of the statements that led her to decide in the way that she did.”
Thank you, Arbitrator Jessyca Cano!
“The way the arbitrator explained the evidence that was reviewed and matched that to the legal doctrine that she was using I felt was well explained.”
Thank you, Arbitrator Rebecca Cooley!
“The way he actually looked at the point of impact and did not just base his decision on the statements.”
Thank you, Arbitrator Robert Moore!
“The decision summary was extensive. He provided a very good explanation of his decision, even though I lost.”
Thank you, Arbitrator Ryan McGrane!
“She gave a good explanation of the decision. It had a good amount of detail in it. It wasn't short or confusing.”
Thank you, Arbitrator Duly Zwiefel!
“She actually read both statements and knew the laws. I feel good about the decision because we were marked at fault on the police report, but then she read our statement and the other carrier’s statement and actually weighed everything, not just the police report. We had a witness, and she took that into consideration, too.”
Thank you, Arbitrator Heather San Luis!