Tips for Cases with No Response

As an arbitrator, you will likely encounter a case in which the Responding Party failed to answer the filing—leaving you with only the Recovering Party’s arguments and evidence to decide the case. 

We are sharing the following tips to consider when you encounter a case without an answer.

Apply the correct burden of proof for arbitration. The burden of proof in arbitration is the same as that of a civil court, which is a preponderance or greater weight of the evidence. The Recovering Party is not required to provide indisputable proof, or the only possible explanation of what happened. It only needs to show that its explanation of the accident/occurrence is plausible or more likely than alternative explanations. Nor is there any requirement for a Recovering Party to confirm its insured’s statement with a witness statement, police report, or any other evidence. The statement is to be generally considered an accurate account of what occurred, unless there is evidence that proves otherwise.  

Consider all of the evidence. AF rules of evidence are informal, meaning that all evidence must be considered. For example, don’t discount an adjuster log note summary of a statement in evidence: there is no requirement for a formal recorded statement in arbitration. The totality of the submitted evidence is what matters in determining whether a Recovering Party has proven its liability arguments. Do not overlook any submitted evidence items, and do not let any personal feelings regarding evidence types deter you from fully considering each evidence item. 

Do not let your role in the industry influence you. Your primary role may focus on subrogation recoveries or adjusting liability claims, but your role in the industry should not influence how you decide a case. For example, in a hit and run case with no answer, it is not within your scope as an arbitrator to question or challenge the lack of a witness; instead, you must decide if the supporting evidence submitted by the Recovering Party, in the absence of any counter-arguments or counter-evidence, is plausible.  

It is important to note that Responding Parties are properly notified each time a case is submitted and, per AF Rules, the Responding Party has ample time to submit its reply (30 days). It is the responsibility of Adverse Parties to answer in a timely fashion or to request a deferment if more time is needed.