February 2018 E-Bulletin for Arbitrators

This month's E-Bulletin topics include:

  1. Coming Soon – New Arbitrator Testing Platform
  2. The Most Important Part of an Arbitration Case
  3. New Job Aid: Credit for Prior Cleared Payments
  4. No Coverage or No Policy?
  5. Evidence Considerations: Vehicle Photographs and Descriptions
  6. Member Feedback… Thank You, Arbitrators!
  7. NASP 2018 Subrogation Litigation: Skills and Management Conference

Coming Soon – New Arbitrator Testing Platform

Image of a marquee sign that says Coming SoonArbitration Forums, Inc. will be transitioning to a new arbitrator testing platform in the second quarter of 2018. To transition to the new platform, all users who are in the process of becoming an arbitrator must complete unfinished and/or outstanding tests in the current platform by May 4, 2018. Any tests not completed in the current platform by the end of the transition period must be retaken on the new platform. Additional information will be provided soon.
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The Most Important Part of an Arbitration Case

Image of a the last puzzle piece going into a puzzleIf someone were to ask you what the most important part of an arbitration case is, how would you answer? Would you say the filing company’s arguments? How about the responding company’s defense of its insured? Maybe you would choose the evidence submitted to support the party’s arguments or an exclusion asserted to have the case removed from arbitration.

The correct answer is that one part of an arbitration case isn’t any more important than any other part. Each piece of a case is equally important.

Arbitrators may choose different approaches when reviewing a case. There’s no preferred flow, as long as the arbitrator becomes familiar with the entire case, arguments raised, and evidence submitted by all involved parties. One arbitrator may go to the responding party’s arguments and evidence first to note the reason(s) why the Applicant’s claim is being denied. Another may start at the beginning, with the filer’s arguments and evidence, to learn what is being disputed and why the case was filed. 

No approach is better than another, as long as the whole case is reviewed and a decision reached based on all submitted arguments and evidence supporting those arguments.
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New Job Aid: Credit for Prior Cleared Payments

Image of a sheet of paper stamped PAIDTo ensure the accuracy of a potential award amount, it is important to recognize any payment discrepancy between the Applicant’s and Respondent’s entries regarding payments made prior to the arbitration. We have added a new “Credit for Prior Cleared Payments” job aid  under “Arbitrator Resources” to help you easily recognize and handle these discrepancies before you submit your decision.

In the example provided below, and in the job aid, the Applicant indicated no prior payment was accepted, and the Respondent indicated a prior payment was made. So, what actually occurred? Did the Respondent issue a payment that was not accepted, or did the Applicant cash/clear the payment and then file arbitration for the balance of its subrogation claim?
 Screenshot of the Applicant tab on Party Information
To determine what occurred, look at the Respondent’s evidence for proof that its payment cleared/was cashed. If the payment cleared, enter the credit toward the award as shown below and in the last image on the “Credit for Prior Cleared Payments” job aid. Remember, the amount entered by the Respondent does not auto-populate as a credit in the Award Section.
Screenshot of the Respondent tab on Party Information
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No Coverage or No Policy?

Image of an insurance policy on a deskIs having no coverage on the party the same as not having a policy?

Sometimes it is but not all the time. If a policy was never written to cover a party named in arbitration, it’s easy to argue that it has no coverage. If a policy was written, but coverage was denied for some reason, proof is needed to support the argument that coverage does not exist.

In each of the following situations, there is specific proof an arbitrator would look for:
  • If coverage was denied, a letter denying coverage should have been sent to the party, named insured, or both. This letter is strong support for the argument that coverage does not exist and needs to be submitted as evidence. 
  • If a policy wasn’t written or didn’t exist at the time of the loss, there may be a number of reasons. An insurance carrier member may have been mistakenly named as the carrier for the alleged tortfeasor. As a result, no policy exists. A self-insured member for first-party damages, which has liability coverage with a carrier, also would not have a liability policy. In these scenarios where the party, as a Respondent, has indicated “no liability policy in effect,” a denial of coverage letter would not be needed.
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Evidence Considerations: Vehicle Photographs and Descriptions

Image of broken glass at an auto accidentPart 4 of the Evidence Considerations Series

Parties in arbitration often rely on vehicle photos to support a liability or damages position. Ideally, submitted photos include both a close-up view of the damaged area and a view of the whole vehicle.  This provides an overall perspective of the damage and enables you to confirm the photos are from the same involved vehicle. 
Unfortunately, sometimes it can be difficult to determine what the actual damage photos represent, if they are zoomed in too closely, taken from too far away, are blurry, or are not labeled. In some instances, a simple zoom adjustment to your screen view may help you better discern what the photos represent.

As you consider damage photos, it is important to determine if the images show what the party claims they do, and if they do, does that support the specific argument being made? For example, a Respondent may claim there is old damage to the left fender of the Applicant vehicle that its insured did not cause, that there was visible rust in the dent on the left fender, and refer to damage photos. As you look at the photos, do you agree they depict rust in that area as claimed? If yes, does it appear to be old damage or actually a result of the accident in dispute?

In cases where medical bills are being disputed on the basis of the injury’s severity or the injury itself not being related to the accident, vehicle photos can be used to argue a lack of force in the impact. Some of our members have a specific protocol for low-impact soft-tissue cases, requiring a different set of vehicle photos including bumper height, headrest positions, seatback positions, and bumper damage (or the lack thereof) to show the circumstances of the impact. Thus, vehicle photos are not only important to argue liability but also whether the injury and/or injury’s severity could be related to the impact.

Your decision should always be based on which party, if any, proved its position through a preponderance of the evidence. Damage photos can be convincing, but they can sometimes leave you more confused! When damage photos are referenced as support for an argument, it is a good idea to include some specific comments about them in your explanation, so the reader can understand what the photos proved or failed to prove.

We conclude the Evidence Considerations Series in the next issue with “Providing Sufficient Evidence.” Don't miss it!
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Member Feedback… Thank You, Arbitrators!

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

“The arbitrator, Bryan Barber, was very thoughtful and provided a lengthy decision explaining all of the evidence that was reviewed. That's very, very good. He acknowledged that speed could not be proven as a contributing circumstance.”
Thank you, Arbitrator Bryan Barber!

“The thoroughness of the decision, and the wording she used to explain it, was easily understandable.”
Thank you, Arbitrator Dale Diley!

“She took into consideration all the evidence provided — witness statements and the decision page versus the loss report. You could tell she read both party's contentions and used things we provided in our contentions to support the decision.”
Thank you, Arbitrator Janice Barham!

“The decision summary was extensive. I thought he provided a very good explanation of his decision, even though I lost.”
Thank you, Arbitrator Ryan McGrane!
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NASP 2018 Subrogation Litigation: Skills and Management Conference

Image of the NASP conference brochureThe Roosevelt - New Orleans, LA
March 22 - 23
Register today!
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