Most cases with both liability and damages in dispute are relatively straightforward: decide liability first. Damages may not be an issue if the Recovering party fails to prove liability or state negligence law bars recovery, but what about the occasional case that isn’t straightforward? For example, one involving a percentage of liability admitted or liability not specifically admitted, but no alternative liability theory provided?
We’re sharing some scenarios and guidance below. In these examples, Alpha Insurance is the Recovering party and Beta Insurance is the Adverse party.
Scenario 1: The Adverse party admits to a percentage of liability.
If the Adverse party entered 100% liability, no further consideration of liability is necessary. If the Adverse party admitted partial liability (as shown below) enter a number equal to or greater than the percentage admitted. In the example below, a percentage of 70% or more is acceptable.
Scenario 2: The Adverse party did not admit to any liability (0%) and stated the Recovering party has the burden to prove liability, but did not offer an alternative liability position. In addition, the Adverse party acknowledged a prior payment made to the Recovering party, and disputed the unpaid amount (please see the first three visuals below).
If the Recovering party included liability arguments regarding the loss, and proved one or more of them that will result in a recovery based on state negligence law, enter the breach/breaches of duty where provided in TRS and continue to hear the damage dispute.
If the Recovering Party did not include liability arguments, or you are unable to determine a breach of duty, your liability decision entry can be worded to reflect what was entered. For example, “[Adverse party company name] has not made a specific and supported challenge to liability.” Please see the last visual below. Then, continue to hear the damage dispute.
Scenario 3: The Adverse party enters 0% liability and states, “this is a damage dispute” or “see damage dispute” in its liability argument, and its damage dispute is argued where provided in TRS.
It is clear the sole issue in dispute is damages, even though the “% Liability Admitted” field was zero. As noted above, enter the breach of duty in the liability decision field if you are able to identify one. If not, it is acceptable to enter “Liability not disputed.”