April 2022 E-Bulletin for Arbitrators
This month's E-Bulletin topics include:
- Decision Quality Review: Insights for Arbitrators Q1 2022
- Itemized TRS Damages
- Reminder: AF Will Discontinue Support for Internet Explorer in June 2022
- May System Maintenance
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Decision Quality Review: Insights for Arbitrators Q1 2022
It has been a year since AF introduced the quality assessment process, which is intended to measure the overall quality produced by the membership. As part of this partnership, we are sharing updated feedback to help improve quality.
Our first quarter 2022 Decision Quality Review showed continued improvement of arbitrator performance over the last two quarters. Arbitrators showed increased strength in the following areas: properly addressing jurisdictional exclusions, entering award data correctly, and offering professionally written decisions.
The review also revealed areas of opportunity for arbitrators.
Consider Comparative Negligence in Liability Decisions if Applicable
As with previous reviews, this review found “word versus word” decisions and decisions that supported comparative negligence, which may not have taken all evidence into consideration. This includes situations in which the adverse party simply stated the recovering party did not meet its burden to prove damages. As the arbitrator, you must look at all evidence provided and determine if the preponderance of evidence supported one party’s loss theory over another, and/or if comparative negligence applies.
Address All of the Specific Damage Arguments Raised
The review revealed many damage decisions offered a general response to the overall dispute whether awarding or reducing damages. Remember that specific comments about the damages issues will make your decision rationale clear to all parties.
Entering “The evidence supports the rental that is being sought,” does not adequately address the dispute. Instead, cite the evidence
that led you to determine the rental was supported and include specific details. For example, “The labor hours listed on the estimate support the number of rental days allowed. The daily rate allowed was supported by the policy declarations page, and the estimate showed the make and model of the loss vehicle, which was comparable to the type of vehicle rented.”
Additionally, ensure you address the evidence that was submitted by all parties to support your damage decision. Why is this so important? The parties in arbitration do not have the ability to view evidence submitted by other parties; they can only see a list of submitted evidence.
Your comments provide a window into submitted evidence that is not viewable by all parties, which helps all parties better understand the decision.
Enter Descriptive Evidence Comments
The review of evidence commentary revealed opportunities for continued growth. AF’s quality standard is for the arbitrator to offer substantive comments about evidence that was embedded into the parties’ liability arguments. For example, if a party embeds the police report into its liability argument, entering “Reviewed Police Report” or “Police Report” are not sufficient evidence comments. The quality standard requires comments that illustrate what the evidence contained and/or how it factored into the decision
. For example, “The officer’s narrative noted Beta Insurance Company’s insured ran the red light and struck Alpha Insured’s vehicle.”
AF is dedicated to ensuring you, our members, are at the center of everything we do. We share this information to increase awareness of performance gaps to help improve the overall quality of future decisions. AF will continue to share our findings and insights after each review. We truly appreciate the efforts of our member arbitrators to deliver on the promise of a quality decision.
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Itemized TRS Damages
The May 2019 TRS E-Bulletin
provided examples on how the recovering party should itemize its damages in TRS, and the December 2019 E-Bulletin for Arbitrators
shared examples of damage disputes and guidance on applying Rule 2-5. This article will add further clarification as we continue to see issues with the itemization of damages and damage disputes in auto claims, especially concerning total loss claims.
Rule 2-1 does not have any requirement as to how damages are to be itemized. Rather, our TRS application includes templates to use when the damages sought pertain to a vehicle that has either been repaired or rendered a total loss. The template is intended to capture the different damages included in the filing and the specific damages in dispute.
The issue with total loss claims is the varying manner in how companies categorize the damages, specifically those included under salvage. Some companies include towing and/or storage charges that are included on the salvage invoice. Others itemize these damages separately. While itemizing the damages may be the preferred approach to allow a Responding company to dispute specific damages, either way is acceptable.
In the example below, the filing company included $7,509.35 for salvage/owner-retained damages, which includes storage damages totaling $1,650 (22 days at $75). The responding company disputed this amount, arguing that only $750 is owed (10 days at $75).
While the storage damages were not itemized on their own, the responding company was able to identify and dispute the specific damages
. How the damages were itemized was not an issue. The arbitrator must consider and rule on the damage dispute.
The above is just one example specific to the salvage category. The key point to remember as an arbitrator is to resolve the member’s dispute. If, for example, a tow charge is incorrectly itemized as storage, but the responding company is able to dispute the amount sought, render a decision on the damage dispute. The arbitrator should not disregard the dispute because the incorrect damage type was selected. Another example is where the condition adjustment is included with the valuation. Award the damages if supported and not disputed, even if you believe the expense should have been entered under “Add to Valuation.”
In closing, this article is intended for general educational purposes. It does not address every scenario that might arise, and is not to be used as evidence to support a party’s position on dispute damages.
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Reminder: AF Will Discontinue Support for Internet Explorer in June 2022
As a reminder, Arbitration Forums will no longer support the Internet Explorer browser for its products and services after June 15, 2022. For the best experience when browsing the Arbitration Forums website or using our applications, users should transition to a modern web browser, such as Google Chrome or Microsoft Edge.
If you need assistance, please reach out to your company’s technical support staff.
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May System Maintenance
The system maintenance that Arbitration Forums, Inc. (AF) was originally scheduled to perform in March has been rescheduled to May 13-16. As a result, AF’s website will be unavailable from 9:00 PM ET on Friday, May 13, 2022, through 5 AM ET on Monday, May 16, 2022
We apologize for any inconvenience this may cause your organization and appreciate your continued support as we work to enhance our products and services.