February 2019 E-Bulletin for Arbitrators

This month's E-Bulletin topics include:

  1. My Case Has No Answer: What Do I Do?
  2. Arbitrator QwikShare Recap: Top-3 Mistakes to Avoid
  3. To Deny or Uphold, That is the Question
  4. Evidence Considerations: Police Reports
  5. Preserving Neutrality, Privacy, and Confidentiality
  6. NASP 2019 Subrogation Litigation: Skills & Management Conference

My Case Has No Answer: What Do I Do?

When hearing a case with no answer, remember there are no default judgments in arbitration (Rule 4-1): The filing company does not automatically win the case if there is no answer.

Arbitration is designed to expedite resolution, which is why it does not include formal rules of evidence like litigation. A “no answer” case should be heard like any other case, using the preponderance of evidence standard to make the decision.

The filing company does not need to provide indisputable proof, i.e., the only possible explanation of what happened, but needs only to show its factual explanation is more likely true than any other alternative explanations. Alternative explanations do not need to be ruled out for the filing company to prove its case. Image of a man shrugging as if confusedMany cases are decided on circumstantial evidence, and what matters is whether or not the totality of submitted evidence proves the case.

As an example, imagine the filing company has filed a hit-and-run case, and the Respondent did not answer. If the filing company provided a statement from its insured, and the statement is credible, it should be accepted as an accurate account of what occurred, because there is no argument from the Respondent to challenge it. The total evidence submitted, including the statement, may be enough to prove a prima facie or “minimum standard” case: that there was a duty owed, that the Respondent breached the duty, that the breach of duty by the Respondent was the proximate cause of the accident/occurrence, and that damages resulted. Evidence other than a witness statement can be sufficient to prove the Respondent’s involvement, such as a police report, a 911 call record, damage photos showing paint transfer that matches the color of the Respondent’s vehicle, etc.
 
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Arbitrator QwikShare Recap: Top-3 Mistakes to Avoid

“A smart man makes a mistake, learns from it, and never makes that mistake again, but a wise man finds a smart man and learns from him how to avoid the mistake altogether.”– Roy H. Williams
Conceptual image of a figure shooting at a target and missingIt is easy to make a mistake, especially if you are relatively new to the role of arbitrator. We recently offered a QwikShare webinar to raise awareness of potential pitfalls and help you avoid them. The pitfalls that landed in the Top-3 category — meaning they would require the decision to be returned for additional work — are:
  1. Failing to credit the Respondent for a prior payment when the Applicant has not acknowledged it, but the Respondent has proven the payment cleared or was cashed (or for EFTs, was “sent”). For more detail: Arbitrator Resources – Credit for Prior Cleared Payments
  2. Arriving at an inaccurate “Damages Proven” amount on a reduced damage decision, resulting in an inaccurate award amount. The key is to start with the Applicant’s Company Claim Amount, which does not include the deductible, and subtract amounts the Respondent proved it does not owe, to arrive at the accurate Damages Proven. After entering liability and damages, the system automatically populates the award accordingly, including any deductible that was entered by the Applicant. 
  3. Delivering an explanation that does not provide specifics about the influential evidence item(s), leaving the reader uncertain about your rationale for the decision. What was it about a particular piece of evidence that made it influential? For example, if you found a witness to be particularly influential, explain why. For example, “The independent witness was traveling directly behind Beta Carrier and said Beta’s light changed to red before she entered the intersection.”
Thank you to all who attended the webinar!

Missed the QwikShare? No worries! You are welcome to view a recording (29 minutes):.
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To Deny or Uphold, That is the Question

Image of a rubber stamp with the word denied on itDid you know a no-coverage Affirmative Defense may receive an upheld ruling without a denial-of-coverage letter? Rule 2-4 in the AF Reference Guide states a no-coverage letter is required to have a filing administratively closed. An administrative closure means AF will withdraw the filing from the hearing schedule, and the filing is closed. When a filing is not administratively closed, the Affirmative Defense will be reviewed by the arbitrator(s) to decide the coverage issue. The filing, at the time of hearing, may or may not contain a denial/disclaimer-of-coverage letter. The lack of a denial-of-coverage letter would not necessarily be a denial of the no-coverage Affirmative Defense. Rule 2-4 of the AF Reference Guide gives an example of a vehicle theft and corresponding police theft report. The arbitrator(s) would look to the evidence as to whether a no-coverage Affirmative Defense was supported.
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Evidence Considerations: Police Reports

Image of lights on a police carWhen accidents occur, usually the police are called and a report is written. When a report is adverse to another, a claims professional may call into question the report’s contents by alleging, “The police did not witness the accident.”  This argument is raised in an attempt to bolster the claim professional’s own liability arguments.

As arbitrators, we expect to see these arguments from time to time. However, it’s important to understand that police officers are trained investigators. When warranted, they view the aftermath, talk with involved parties to capture statements, and document important physical details such as vehicle positions and damage. The immediacy of the crash fosters the most accurate recollections from involved parties, which is valuable information to record. When the officers have finished gathering key details, they complete an analysis to determine if the information leads to a likely cause, and then document it.

Learn more about police report considerations on the Arbitrator Resources page or .
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Preserving Neutrality, Privacy, and Confidentiality

Image of a laptop with the word privacy on the screenObjectivity, 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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NASP 2019 Subrogation Litigation: Skills & Management Conference

Omni Rancho Las Palmas Resort & Spa – Rancho Mirage, CA
March 28–29
Register today!
 
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