February 2021 E-Bulletin for Arbitrators

This month's E-Bulletin topics include:

  1. Applying Comp Negligence in PIP and Med Pay for Passengers
  2. TRS PIP and Med Pay Update: Guidance to Ensure Accurate Handling of Occupants and Pedestrians
  3. What is Acceptable Proof to Support a Prior Payment in TRS?
  4. Remember to Consider All Submitted Evidence Items

Applying Comp Negligence in PIP and Med Pay for Passengers

Image of the dash of a car with a deployed air bag in the steering wheelIn states that follow modified comparative negligence or contributory negligence laws, the recovery of a driver’s PIP or Med Pay claim would be barred. However, the recovery of a passenger’s claim would not be (assuming the passenger did not contribute to or cause the accident).

To ensure accurate and correct awards when multiple features are filed (driver and occupants), Total Recovery Solution® (TRS®) will apply the loss state’s negligence law and modify awards accordingly.

Example — A filing is submitted with three features: a driver and two occupants. The loss state follows modified comparative negligence where 50% liability bars recovery.

 
Injured
Party/Feature
Injured Party
Status
Amount Sought Liability Assigned Award
John Doe Driver $2,000 50% $0
Sally Doe Occupant $2,000 50% $1,000
James Doe Occupant $2,000 50% $1,000
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TRS PIP and Med Pay Update: Guidance to Ensure Accurate Handling of Occupants and Pedestrians

In our spirit of continuous improvement, TRS has been recently updated to provide more arbitrator guidance when the injured party is an occupant or a pedestrian. 

Screenshot of the Workflow StepsWhen hearing a PIP or Med Pay Case in TRS, please look closely at the status of the injured party. This information appears during the Damage Recovery Workflow Step (Illustration A).
 
The Recovering Party is required to enter the status of the injured party, and this will appear as shown below (Illustration B). Notice the Proven Liability in this example is 75%. TRS applied the Liability Decision to the PIP claim of Alpha’s spouse, who was a vehicle occupant, resulting in an incorrect amount ($4,661.15 instead of the full amount of $6,214.87). 

In the Award Summary (Illustration C), notice the banner message that appears. It states the following: Injured Party is Occupant or Pedestrian. Please use Modify Awards button to award the correct amount. After modifying the award, click Save Modifications (Illustration D).

Screenshot of the Damages Decision tab

Screenshot of the Award Summary section illustrating how to modify awards

Screenshot of the Award Summary section illustrating how to modify awards

 
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What is Acceptable Proof to Support a Prior Payment in TRS?

Image of a man's hand holding out cashUnfortunately, we continue to amend a high percentage of decisions in which a Prior Payment was incorrectly handled. We are sharing more detail about proper review of these Prior Payment scenarios in the hope of reducing the number of Post-Decision Inquires our members must file in the future.  

The key issue the arbitrator must resolve regarding an alleged Prior Payment(s) is the following: Did the Prior Payment the Adverse Party alleges in regards to the damages sought in the arbitration (including deductible) clear the Recovering Party’s bank? Clearing the bank means the issued payment was cashed/deposited by the Recovering Party. 

The wording that each company uses in its proofs varies. If the issued payment was cashed/deposited, it may appear with a date of payment or use Status terms such as Paid, Cleared, Honored, etc., to show it was cashed/deposited. These payments, including those made via Electronic Funds Transfer (EFT), should be credited against any potential award so long as the payment pertains to the damages sought. For example, credit would not be given for a payment to a rental company if Rental damages were not sought by the filer. 

If the proof of payment does not show that the payment was cashed/deposited, it may appear with a date of issue only or the words “Outstanding,” “Pending,” etc.  Please review the examples of acceptable versus unacceptable proofs to gain a better understanding of the issue. Your anticipated cooperation is much appreciated! 
 
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Remember to Consider All Submitted Evidence Items

Image of a hand holding a cell phone taking a picture of damage to a car after an accidentThe design of TRS supports attachment of evidence to the area that it supports, for example, evidence that supports a liability argument is attached to the Liability Arguments in the Workflow Steps.

It’s important to remember that all evidence in the case must be considered, regardless of where it is attached. For example, a party may attach damage photos to the Auto Feature, but refer to them in the Liability Arguments. 

All evidence must be considered and can be reviewed, which is why there is a “Review Evidence” Workflow Step to ensure it is all viewed. TRS will not allow the case to be submitted if any evidence is not viewed.  

Screenshot of the Review Evidence section
 
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