October 2019 E-Bulletin for Arbitrators

This month's E-Bulletin topics include:

  1. AF Reduces Fees in 2020
  2. Revisions to AF Agreements
  3. Affirmative Defense or Exclusion
  4. Tips for Hearing a Case in TRS
  5. Negligence and the Innocents
  6. System Maintenance, December 2019
  7. Reporting Suspected Illegal, Dishonest, or Fraudulent Activities
  8. Preserving Neutrality, Privacy, and Confidentiality

AF Reduces Fees in 2020

Image of the word feesArbitration Forums, Inc. (AF) is pleased to announce additional changes to our fee structure, providing our members with even more cost-effective services. In addition to a five dollar reduction to filing fees, AF will continue to provide the use of E-Subro Hub at no charge.

These changes will go into effect on January 1, 2020.

AF is dedicated to ensuring you, our members, are at the center of everything we do. We appreciate your continued participation in AF’s programs.
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Revisions to AF Agreements

Image of two hands across a table holding a sheet of paperUpdates to Article Fifth and Sixth of the AF Agreements have been made to include arbitrator participation. These changes will become effective March 1, 2020.

Article Fifth – AF’s Function and Authority
  • (c) determine qualification criteria, provide for the selection and appointment of arbitrators, and establish arbitrator participation requirements for the signatory companies;
Article Sixth – Arbitrator Participation
  • Signatory companies agree to provide qualified arbitrators from among full-time employees, and hear as many cases as they file.
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Affirmative Defense or Exclusion

Image of a red car with its headlight busted in a car accidentOn occasion, we see filings where the responding party argues that the damages sought by the recovering party are not legally recoverable, whether by statute or some other reason. The argument is not based on liability (i.e., insured not liable or negligence law bars recovery) or the amount of damages sought.
 
Per Article Second Exclusions (b), compulsory intercompany arbitration lacks jurisdiction if such claim “creates any cause of action or liabilities that do not currently exist in law or equity.” Therefore, an argument regarding the legal right to recover the damages sought is an affirmative defense/exclusion to compulsory arbitration.
 
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Tips for Hearing a Case in TRS

Image of letters spelling out the word learn with a lightbulb over themTRS is designed to streamline the filing and responding process, reduce cycle time and errors, and improve Decision Quality. To support you as you hear cases in TRS, we are sharing the following tips: 
  1. Add a specific comment about the embedded evidence item(s). Explain what the item contained and/or what it proved (or did not prove) concerning the associated argument. For example, if the Adverse Party argues the Recovering Party parked illegally, and embeds a copy of the police report as support, an example of a specific comment could be: “The officer’s narrative stated Alpha was parked illegally in a no parking zone.” 
  2. Consider all of the evidence attached to the case, regardless of where it is located or how it is used.
  3. Review and consider the pre-rebuttal damage arguments when considering the Adverse Party’s damage dispute.  
  4. Use your discretion to decide if the Recovering Party has proven its damages when it has not properly itemized them. For example, if the towing charges are lumped into the vehicle valuation field instead of where they belong in the towing field.                                                                                                                                                                       
  5. Consider only policy limits raised in the proper area. The Adverse Party must assert Policy Limits in the Coverage Response - Collision Workflow Step (Illustration A). In the arbitrator view, asserted limits should appear in the Liability Policy Limits Workflow Step (Illustration B).

Screenshot of Illustration A

Screenshot of illustration B
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Negligence and the Innocents

Image of a parked car with damage to itIt is common for Auto and Special dockets to be filed for damage to a parked or stopped vehicle with more than one potential tortfeasor. Property losses often involve an innocent party who has suffered damage because of a condition over which he or she had no control, such as fire and water losses involving neighboring condominiums or businesses. 

Filers often try to apply the innocent position of an applicant insured as leverage for recovery. It is important to recognize that innocent parties may be entitled to recovery, and that recovery can only be awarded on the basis of arguments and evidence that support negligence on the part of one or more of the respondents.

Some questions that may aid in determining if negligence is supported are:
  • Does the evidence show that the respondent(s) failed to exercise the proper duty of care?
  • Does the evidence show that the respondent(s) knew, or should have known, that the cause of loss posed a hazard prior to the occurrence?
Remember the standard for support of negligence is by a preponderance of the evidence. That is to say, the evidence must show that the theory of liability proffered by the applicant is more likely than any other possible cause argued by a respondent.

While it may be abundantly clear that an applicant’s insured did not contribute to their own damages in any way, the evidence must still show that if not for the negligence of the responding party(ies), the damages would not have occurred. In other words, negligence must still be proven. 
 
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System Maintenance, December 2019

Image of a maintenance symbol on a keyboardAF is scheduled to perform system maintenance and upgrades. As a result, AF's website will be unavailable from 9 p.m. Eastern on Friday, December 6, 2019, to 6 p.m. Eastern on Sunday, December 8, 2019.

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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Reporting Suspected Illegal, Dishonest, or Fraudulent Activities

Illustration of a button that says fraud over a keyboardArbitration Forums, Inc. (AF) is committed to providing an environment free of illegal, dishonest, or fraudulent activity.

AF has contracted with a third-party service called Lighthouse Services, through which arbitrators may anonymously report suspected illegal, dishonest, or fraudulent acts or violations by an AF employee.

View the flyer for information and details about Lighthouse Services.
 
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Preserving Neutrality, Privacy, and Confidentiality

Illustration of a digital lockObjectivity, neutrality, and confidentiality are the foundations of a credible arbitration system. All decisions must be based solely on the arguments made in the contentions and the evidence submitted by the parties to avoid any perception of bias on the part of the arbitrator.

In addition, an arbitrator must excuse himself/herself from hearing a case if he or she has a direct or indirect interest in the outcome (financial, business, personal, or professional). We also recommend that arbitrators excuse themselves from hearing a case that involves a prior co-worker or claim adversary if their decision could create an appearance of impropriety.

AF policies also help ensure the privacy and confidentiality of our membership’s data. The Neutrality, Privacy, and Confidentiality Statement reinforces to arbitrators that the information submitted by parties is private and confidential and may only be used to resolve the dispute. It may not be copied, printed, or used for any other purpose.

Neutrality, Privacy, and Confidentiality Statement
This decision is according to my understanding of the current local law and the facts presented. I may not render a decision on a case where I or my company is directly or indirectly interested, or where there is even an appearance of bias. Also, I understand as an arbitrator, I will have access to confidential material involving company and/or insured information. All information related to this case will be utilized for the sole purpose of rendering this decision. I agree to protect the privacy, security, and confidentiality of all information related to this case. I affirm that I have read and understand the above.

For these reasons, arbitrators acknowledge the Neutrality, Privacy, and Confidentiality Statement on each case they hear.
 
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