New York Loss Transfer Frequently Asked Questions

Section 5105 of New York's Comprehensive Motor Vehicle Reparations Act (No-Fault Law) mandates insurers, self-insurers, and workers' compensation providers to arbitrate disputes pursuant to the provisions of section 5105 and 5221(b) of the New York Insurance Law. Section 65-4.11 of Insurance Department Regulation 68 contains Procedures that apply to this mandatory arbitration process and designates Arbitration Forums, Inc. (AF) as the administrator.

The following FAQ is based on common questions received; the answers were drafted and approved by the Loss Transfer Advisory Committee and the Office of General Counsel, New York State Insurance Department.

  1. What is the definition of "unloaded weight" and what evidence is acceptable to prove a vehicle's weight?
  2. In order to be eligible for inter-company loss transfer for No-Fault benefits paid, may an insurer combine the unloaded weight of its insured's motor vehicle with the unloaded weight of a trailer that the motor vehicle was hauling at the time of an accident in order to reach a combined weight of more than 6,500 pounds and pursue loss transfer as authorized under N.Y. Ins. Law § 5105(a)?
  3. What constitutes a vehicle for hire?
  4. Would a motor vehicle that weighs 6,500 pounds or less and is used by its owner for commercial deliveries of the owner's own product, be subject to the loss transfer provisions set forth in N.Y. Ins. Law § 5105(a) (McKinney 2000) when the owner charges its customers a fee for the delivery?
  5. What constitutes "involvement" in an accident?
  6. Can a workers' compensation carrier be named as a respondent in PIP loss transfer arbitration
  7. When an entity has a large self-insured retention and the amount of damages at issue in a loss transfer inter-company arbitration falls within the retention, is the self-insured the appropriate party to the arbitration (as opposed to the liability insurer that insures the losses above the retention)? Is an entity's self-insured status a valid affirmative defense to jurisdiction by a liability insurer?
  8. What is the Motor Vehicle Accident Indemnification Corporation (or MVAIC)?
  9. What is the maximum recoverable amount for wage loss?
  10. Under what circumstances does arbitration have jurisdiction in loss transfer arbitration to hear cases against carriers and self-insureds that do not do business in New York?
  11. What evidence is acceptable to prove that a carrier or self-insured does not do business in New York and therefore arbitration would lack jurisdiction?
  12. Is there any circumstance that would allow a case to be heard in New York when the accident occurred outside of New York?
  13. Are court orders or verdicts res judicata/collateral estoppel to an arbitration case for related claims involving the same accident?
  14. What evidence must be submitted to prove the above?
  15. Is it improper to render a liability decision of 50% against both parties in an accident?
  16. What burden of proof does an applicant have?
  17. Under what circumstances can an arbitrator adjourn a hearing?
  18. What constitutes an affirmative defense?
  19. When is a decision truly final and binding?
  20. Can a respondent implead or name/add another respondent?
  21. Is HIPAA Authorization required for Loss Transfer?
  22. Can expenses (i.e., medical exams, interest, attorney fees) be recovered in loss transfer arbitration?
  23. Is NYHCRA a recoverable expense under loss transfer?
  24. What is the minimal proof of damages that are required to be submitted by the applicant to the respondent prior to initiating arbitration (i.e., the ledger documenting payments)?
  25. Is there a rule regarding award payments like there is in the voluntary forums that AF administers (i.e., Auto Subrogation forum, Property Subrogation forum, Special Arbitration)?
  26. Aside from a motion to confirm or vacate an award, can an applicant file litigation after an arbitration decision that is favorable to the respondent has been rendered?
  27. May a No-Fault insurer assert a loss transfer claim for OBEL?
  28. Which insurer(s) is responsible for reimbursing the pedestrian's vehicle insurer for first-party benefits paid to the pedestrian in the following scenario: vehicle A and vehicle B were involved in a collision with one of the vehicles striking and causing injury to a pedestrian. Both of the vehicles were in use and operation at the time of the collision. The accident occurred in New York State. The pedestrian's vehicle insurer paid No-Fault benefits to the pedestrian and seeks recovery from the responsible insurer(s) based on the priority of payment provisions of the Regulation.
  29. Can an Applicant carrier file loss transfer when the Respondent's vehicle is a motorcycle?
  30. Are legal fees recoverable in NY PIP arbitration?
  31. Does a workers' compensation insurer, or a company that is a self-insurer with respect to providing workers' compensation benefits to its employees, have a right under NY Ins Law 5105 (a) (McKinney 2006) to recover workers' compensation schedule loss of use awards (SLU) that it made to an employee from the No-Fault insurer of the at fault vehicle, when the employee has suffered permanent partial disability resulting from a vehicle accident during the course of employment?
  32. What is required for a Respondent to deny coverage and have a matter removed from arbitration's jurisdiction?
  33. Does the above apply to issues of non-involvement?
  34. May a disability insurer seek a loss transfer recovery in arbitration?
  35. May loss transfer arbitration be brought against a Federal Government agency?
  36. May a No-Fault insurer assert a loss transfer claim for Additional PIP (APIP)?
  37. Is a notice of claim required to be served upon a governmental entity within NYS within 90 days to preserve the right to bring a loss transfer arbitration, and what is the appropriate statute of limitation for arbitration in such cases?
  38. Is e-law the only acceptable proof to support whether a deferment is warranted if a deferment request is challenged?
  39. Is joint and several liability an available Affirmative Pleading in New York Loss Transfer Arbitration? In other words, in a case involving multiple vehicles, may I file against only one Respondent and assert joint and several liability to recover 100% from that Respondent, even if that Respondent is not 100% negligent for the loss?
  40. May a health insurer that pays for medical treatment that should have been covered by the insured's no-fault automobile insurance carrier maintain a reimbursement claim against the no-fault insurer within the framework of the No-Fault law (Insurance Law 5101)?
  41. The rules provide that an "Applicant or Respondent may send a representative to a hearing. If an appearance is to be made, the intent to do so must be indicated in the filing or response." I understand appearances may be made in person at the NYC hearing location or via a telephone conference call. What is the process to appear via telephone conference call?
  42. Does a new Inter-company Reimbursement Notification Form (IRNF) need to be sent to the Respondent if additional payments are made?
  43. Section 65-4.11 (b) provides that arbitrations shall be administered by “an Inter-Company Arbitration administrator designated by the Superintendent.” Part (d) further provides the arbitrations “shall be conducted in accordance with procedures established by the Administrator and approved by the superintendent.” Where is Arbitration Forums (AF) specifically designated as the administrator?
  1. What is the definition of "unloaded weight" and what evidence is acceptable to prove a vehicle's weight?
     
    • The term "unloaded" is not specifically defined. N.Y. Ins. Law § 5105(a) simply states the right to recover exists only if at least one of the motor vehicles involved is a motor vehicle weighing more than 6,500 pounds unloaded. This is commonly accepted to mean the actual weight of the vehicle excluding any item that is made part of the vehicle and excluding anything it was carrying or hauling. Regarding the evidence a party may submit to prove a vehicle's weight, the various accepted proof of unloaded weight includes but is not limited to: the vehicle VIN information from the Department of Motor Vehicles - as it provides the unloaded weight as opposed to the plate information which may be the gross maximum vehicle weight; a Certificate of Title or Certificate of Origin; a weight certificate from an official weighing station; Red Book or Blue Book information.
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  2. In order to be eligible for inter-company loss transfer for No-Fault benefits paid, may an insurer combine the unloaded weight of its insured's motor vehicle with the unloaded weight of a trailer that the motor vehicle was hauling at the time of an accident in order to reach a combined weight of more than 6,500 pounds and pursue loss transfer as authorized under N.Y. Ins. Law § 5105(a)?
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  3. What constitutes a vehicle for hire?
     
    • A vehicle for hire is a motor vehicle "used principally for the transportation of persons or property for hire" within the meaning of N.Y. Ins. Law § 5105(a) (McKinney 2000). This includes vehicles hired to transport people, such as taxis and buses, and vehicles hired to transport property, such as a tow truck. Rental U-Haul trucks are not included. See NYSID Office of General Counsel opinion dated May 2, 2001.
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  4. Would a motor vehicle that weighs 6,500 pounds or less and is used by its owner for commercial deliveries of the owner's own product, be subject to the loss transfer provisions set forth in N.Y. Ins. Law § 5105(a) (McKinney 2000) when the owner charges its customers a fee for the delivery?
     
    • No. Per a NYSID Office of General Counsel opinion dated May 2, 2001, such a motor vehicle is not a motor vehicle "used principally for the transportation of persons or property for hire" within the meaning of N.Y. Ins. Law § 5105(a) (McKinney 2000), notwithstanding the fact that the owner charges its customers a fee for the delivery.
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  5. What constitutes "involvement" in an accident?
     
    • N.Y. Insurance Law § 5105 (a) provides that a PIP carrier or Workers' Compensation carrier may recover against a responsible party provided one of the motor vehicles involved in the accident weighs over 6,500 pounds unloaded or is a vehicle for hire. Involved means "part of or included in the accident" so the vehicle that is over 6,500 pounds or a vehicle for hire need not be the applicant or the respondent (Travelers Property V Allstate, 670 N.Y.S.2d. 959 (1998)). If the filing party asserts that an involved vehicle weighed more than 6,500 pounds or is a vehicle for hire (i.e. a taxi cab cut off one vehicle causing it to strike another vehicle), or the responding company asserts an affirmative defense objecting to jurisdiction on the grounds that no involved vehicle weighed more than 6,500 pounds or is a vehicle for hire, the arbitrator will render a decision on this issue based on the evidence submitted to support the respective contentions.
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  6. Can a workers' compensation carrier be named as a respondent in PIP loss transfer arbitration?
     
    • A Workers' Compensation provider cannot be a respondent in the mandatory No-Fault Inter Company Arbitration program (NY PIP). New York State Insurance Law Section 65.15 (1)(n)(viii) of Regulation 68 indicates that if a claimant is eligible for workers' compensation then said compensation provider shall serve as the sole provider of benefits. A Workers' Compensation provider may be an applicant for Loss Transfer and seek recovery of its payments.
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  7. When an entity has a large self-insured retention and the amount of damages at issue in a loss transfer inter-company arbitration falls within the retention, is the self-insured the appropriate party to the arbitration (as opposed to the liability insurer that insures the losses above the retention)? Is an entity's self-insured status a valid affirmative defense to jurisdiction by a liability insurer?
     
    • Yes, per the NYSID Office of General Counsel opinion dated September 9, 2009, an entity that has, pursuant to the New York Vehicle & Traffic Law ("VTL"), registered the motor vehicle with proper proof of financial security, that indicates that the entity is self-insured with respect to the vehicle, is the appropriate party to a loss transfer inter-company arbitration if the amount at issue wholly falls within the retention amount. If arbitration is filed against a liability insurer, the insurer would be free to assert the affirmative defense to jurisdiction and submit evidence that proves the motor vehicle is registered as self-insured. If the motor vehicle is not registered as self-insured, then the liability insurer is the appropriate party to the arbitration. (Liability deductibles or policy limits do not apply.)
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  8. What is the Motor Vehicle Accident Indemnification Corporation (or MVAIC)?
     
    • The Motor Vehicle Accident Indemnification Corporation (MVAIC) was established to pay bodily injury damages and no-fault benefits to "covered" victims of motor vehicle accidents caused by uninsured motorists. Visit www.mvaic.com for more information.

      The following information regarding policy cancellations in New York was provided by MVAIC:

      Policy cancellations should be in STRICT compliance with Vehicle and Traffic Law 313.
      1. DMV filing: 30 days following the effective date of cancellation. The proof of DMV filing, if not reflected in the DMV Expansion, should come from the Department of Motor Vehicle, and not from the Insurance carriers' computer print-outs.
      2. Mailing requirements: Should have a postal stamp. Should be mailed 15 days before the cancellation for non-payment of premium; 20 days before for policy cancellation for other than non-payment of premium.
      3. There should be correct financial security language.

      For assigned risk policies, the notice should contain the "the right to review phrase".

      Reference: Vehicle and Traffic Law 313, Part 34 Motor Vehicle Liability Insurance Reporting New York Automobile Insurance Plan Manual.

      NY Policy Cancellation by Premium Finance Company Requirements:
      1. 10-Days Notice of Intent to Cancel - with stamped proof of mailing
      2. Cancellation notice - with stamped proof of mailing

      Reference: Banking Law 576

      Out-of-State cancellation notice should be in compliance with each state regulation
      1. Mailing requirements
      2. Filing with DMV or Registry of Motor Vehicle
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  9. What is the maximum recoverable amount for wage loss?
     
    • The New York Motor Vehicle No-Fault Insurance Law cover letter (NYS Form NF-1A Rev 1/2004) specifically states: "b. 80% of lost earnings up to a maximum monthly payment of $2,000 for up to three years following the date of the accident."
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  10. Under what circumstances does arbitration have jurisdiction in loss transfer arbitration to hear cases against carriers and self-insureds that do not do business in New York?
     
    • The only other circumstance would be where the responding company does not assert the affirmative defense or objection to jurisdiction. Otherwise, arbitration is not mandatory for claims involving carriers or self-insureds that do not do business in New York (see NYSID Office of General Counsel opinion dated March 31, 2004). It should also be noted that following the enactment of the No-Fault laws, a number of non-resident insurers, who do not do business in New York State, executed waivers with the New York State Department of Motor Vehicles, subjecting themselves to New York law and jurisdiction should one of their vehicles come into New York State and be involved in an accident in this state. To learn if an out-of-state insurance company has executed and filed a Power of Attorney with the New York Department of Motor Vehicles (DMV), an email request should be made directly to dmv.sm.iiesmail@dmv.ny.gov.
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  11. What evidence is acceptable to prove that a carrier or self-insured does not do business in New York and therefore arbitration would lack jurisdiction?
     
    • For insurers, a printout from the NYDFS Web site that lists those insurers that are authorized to write in NY. On the NYDFS Web site, click the drop-down arrow in the third row for "Company Name from the List" to display the full listing of licensed companies.

      For a self-insured, any written documentation from a representative of the company, affirming it does not do business in New York, should be accepted in good faith, i.e., an affidavit from a manager or officer of the corporation.
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  12. Is there any circumstance that would allow a case to be heard in New York when the accident occurred outside of New York?
     
    • No, for loss transfer disputes. Yes, for priority of payments disputes.
    • Under the appellate division case of Hunter v OOIDA 79AD 3rd 1 (2010), a loss transfer case involving an out-of-state accident cannot be heard in New York due to the wording of Section 5105 which creates that right only when the injured party could have made claim but for provisions of Article 51 of New York insurance law and the case qualifies (an involved vehicle weighs 6,500 lbs or more or is a vehicle for hire). In the case of an out-of-state accident, it is not Article 51 which bars suit as Article 51 has no extraterritorial effect. Therefore the terms of Article 51 do not bar suit even if the other state's laws bar suit. So the accident does not fall within the precise language of Section 5105.
    • Priority of payments arbitration is allowed for an out of state accident based upon the ADDITIONAL provision of Section 5105 which requires Intercompany arbitration in a situation in which carriers dispute which coverage is primary. That arbitration does not come under the loss transfer arbitration restrictions. Therefore if two or more NY carriers have a dispute as to which is primary it must be heard in NY priority of payments arbitration.
    • See also: the NYSID Office of General Counsel opinion dated April 30, 2003.
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  13. Are court orders or verdicts res judicata/collateral estoppel to an arbitration case for related claims involving the same accident?
     
    • Yes, a court order or verdict can be res judicata/collateral estoppel, depending on the particulars of the court order and the information it contains.
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  14. What evidence must be submitted to prove the above?
     
    • A copy of the order deciding the motion for summary judgment or the verdict sheet after trial would be acceptable; an E-law printout would not be acceptable because it does not give details of the suit.
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  15. Is it improper to render a liability decision of 50% against both parties in an accident?
     
    • It is not improper to decide liability at 50% against both parties involved in an accident if this is what the evidence supports. What is improper is to render a liability determination of 50% against both parties involved in an accident when liability has not been established against either party - the evidence does not clearly prove the respective driver's negligence to be equal, or the evidence does not clearly prove liability against either party, i.e., all evidence is conflicting and neither party has proven which driver is the cause of the accident.
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  16. What burden of proof does an applicant have?
     
    • The burden of proof in intercompany arbitration is "preponderance of the evidence" (civil matters), not the threshold of "beyond a reasonable doubt" (criminal matters). This simply means that the Applicant does not need to provide indisputable proof, i.e., the only possible explanation of what happened, but only needs to show that its factual explanation is more likely true than any other alternative explanations. It also means that all possible alternative explanations need not be specifically ruled out in order for the Applicant to prevail. If the Applicant proves a prima facie case by a preponderance of evidence, you will then review the responding company's answer to determine whether comparative negligence should be applied. The responding company is the party that determines if liability is at issue. If the responding company does not answer, liability must still be proven by the filing party (Applicant). If the Respondent does answer and admits liability, the Applicant only has to prove damages. If a percentage of liability is admitted, you may not award less than that amount.
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  17. Under what circumstances can an arbitrator adjourn a hearing?
     
    • An Arbitrator has the authority to adjourn a hearing to request evidence that is listed (and implied to be presented) but is not available or for clarification of submitted evidence such as case law, opinions, and proof of damages.
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  18. What constitutes an affirmative defense?
     
    • An affirmative defense is an objection to jurisdiction that, if applicable, will remove the dispute from arbitration's jurisdiction without a decision on the issues of liability or damages. The type of proof necessary to support an affirmative defense will vary depending on the affirmative defense that is asserted. For example, if the respondent asserts a denial of coverage, it must submit a copy of its denial of coverage letter to the party seeking coverage for the accident (i.e., alleged negligent party).
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  19. When is a decision truly final and binding?
     
    • All decisions regarding liability and/or damages are final and binding. The only instance where arbitration can be re-filed after an arbitrator makes a decision would be if the decision was to uphold an affirmative defense causing the case to be closed for lacking jurisdiction (no decision on liability or damages has been made) and the impediment has been removed. For example, an arbitrator closes an initial filing due to the affirmative defense that the condition precedent was not satisfied (i.e., the Intercompany Reimbursement Notification was not sent to the Respondent prior to arbitration being filed). The Applicant can send the appropriate Notification to the Respondent and then re-file should settlement not be reached (assuming the applicable Statute of Limitations has not lapsed in the interim).
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  20. Can a respondent implead or name/add another respondent?
     
    • While the rules are silent on this issue, a respondent may not name or add additional respondents to an arbitration filing. The respondent may only argue the respective liability of other parties in its contentions. The arbitrator will consider all the arguments made and evidence submitted and apportion the liability of the named parties, awarding the amount proven against the named Respondents.
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  21. Is HIPAA Authorization required for Loss Transfer?
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  22. Can expenses (i.e., medical exams, interest, attorney fees) be recovered in loss transfer arbitration?
     
    • No. Per the Intercompany Reimbursement Notification form only "Basic Benefits" are subject to mandatory arbitration under Section 5105 of the Insurance Law. Only by agreement of the parties can "Additional Benefits" be submitted. See Section 5102 Definitions for the definitions of (a) "Basic economic loss" (1) Medical, (2) Loss of earnings, (3) All other reasonable and necessary expenses. (This does not apply to Priority of Payment disputes.)
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  23. Is NYHCRA a recoverable expense under loss transfer?
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  24. What is the minimal proof of damages that are required to be submitted by the applicant to the respondent prior to initiating arbitration (i.e., the ledger documenting payments)?
     
    • As a condition precedent to filing arbitration, a party must send the "Inter-Company Reimbursement Notification Form" to the adverse party from which they are requesting reimbursement of its first-party benefits. See NY PIP Rule Revisions Effective February 1, 2010. No other documentation is "required" to be provided prior to arbitration being filed. That said, it is presumed the parties will exchange necessary documentation to facilitate settlement of the claim and submit a matter to inter-company arbitration only after negotiations fail.
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  25. Is there a rule regarding award payments like there is in the voluntary forums that AF administers (i.e., Auto Subrogation forum, Property Subrogation forum, Special Arbitration)?
     
    • There is no similar rule under the NY PIP/Loss Transfer intercompany arbitration procedures. If a Respondent does not comply with an award, the applicant has two options: File a complaint regarding the party's non-payment with the NYS Insurance Department and/or file a motion to enforce the award with the Court.
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  26. Aside from a motion to confirm or vacate an award, can an applicant file litigation after an arbitration decision that is favorable to the respondent has been rendered?
     
    • All arbitration decisions regarding liability and/or damages are final and binding. The only instance where litigation can be filed after an arbitrator makes a decision would be if the decision was to uphold an affirmative defense causing the case to be closed for lacking jurisdiction in inter-company arbitration (no decision on liability or damages is made). For example, an arbitrator closes an arbitration filing due to the affirmative defense that the respondent carrier has denied coverage for the loss to the alleged negligent party seeking coverage under its policy. The applicant would be free to pursue the uninsured driver outside of inter-company arbitration.
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  27. May a No-Fault insurer assert a loss transfer claim for OBEL?
     
    • Yes. Per a NYSID Office of General Counsel opinion dated August 1, 2003. Because OBEL coverage is an element of basic economic loss and therefore a first party benefit, the insurer of an at-fault vehicle in excess of 6,500 pounds or for hire, is obligated under the statute to provide the full amount of first party benefits paid by the other No-Fault insurer under Section 5105(a) loss transfer, including instances where first party benefits paid include No-Fault OBEL coverage.
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  28. Which insurer(s) is responsible for reimbursing the pedestrian's vehicle insurer for first-party benefits paid to the pedestrian in the following scenario: vehicle A and vehicle B were involved in a collision with one of the vehicles striking and causing injury to a pedestrian. Both of the vehicles were in use and operation at the time of the collision. The accident occurred in New York State. The pedestrian's vehicle insurer paid No-Fault benefits to the pedestrian and seeks recovery from the responsible insurer(s) based on the priority of payment provisions of the Regulation.
     
    • Per the New York Insurance Department, the recovery by the pedestrian's vehicle insurer is not based on which vehicle struck the pedestrian or which vehicle is at fault. Under the sources of mandatory personal injury protection benefits provisions of 11 NYCRR 65-3.12, first party benefits paid to the pedestrian would be recoverable from the insurers of vehicle A and vehicle B as both vehicles were being used or operated at the time of the collision. Further, 11 NYCRR 3.12 (e) provides in relevant part that:

      "Any insurer paying first-party benefits shall be reimbursed by other insurers for their proportionate share of the costs of the claim and the allocated expenses of processing the claim, in accordance with the provisions entitled "Other coverage" contained in the section 65-1.1...and... "Other sources of first-party benefits" contained in subpart 65-2..."

      Accordingly, as there are two sources of first-party benefits available in the above scenario presented, the pedestrian's vehicle insurer would recover 50% from the insurer of vehicle A and 50% from the insurer of vehicle B.
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  29. Can an Applicant carrier file loss transfer when the Respondent's vehicle is a motorcycle?
     
    • Loss transfer may not be brought against the insurer of a motorcycle. The owner/operator/passenger of a motorcycle is NOT a covered party pursuant to Section 5103 of the Insurance Law. Section 5105 provides loss transfer only for accidents between "covered" parties. As an aside, arbitration may be filed against a motorcycle insurer under a priority of payments scenario. For example, if a motorcycle hits a pedestrian, the motorcycle must provide PIP to the pedestrian. If the pedestrian's carrier pays him/her PIP they can file a priority of payment claim against the motorcyclist's carrier. Or, if a car and a motorcycle collide and one strikes a pedestrian and one of them pays PIP to the pedestrian, they can seek priority of payment reimbursement pro rata against the other.
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  30. Are legal fees recoverable in NY PIP arbitration?
     
    • Legal fees are not recoverable in loss transfer arbitration. They are an administrative expense, not a benefit.
    • Workers compensation legal fees are recoverable in loss transfer arbitration because unlike PIP they are not an added expense to the paying carrier, they are deducted from the workers' compensation award payable to the injured party.
    • Legal fees are recoverable in priority of payment arbitration when they have been incurred as a reasonable and necessary expense in the defense of a PIP denial by the Applicant.
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  31. Does a workers' compensation insurer, or a company that is a self-insurer with respect to providing workers' compensation benefits to its employees, have a right under NY Ins Law 5105 (a) (McKinney 2006) to recover workers' compensation schedule loss of use awards (SLU) that it made to an employee from the No-Fault insurer of the at fault vehicle, when the employee has suffered permanent partial disability resulting from a vehicular accident during the course of employment?
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  32. What is required for a Respondent to deny coverage and have a matter removed from arbitration's jurisdiction?
     
    • Pursuant to Rule 2 Initiation of Arbitration (v) of the NY PIP Rules, a Respondent must:
      1. Check the appropriate box on the NY PIP-FORM indicating that coverage has been denied for the claim in question.
      2. State the reason for the coverage denial in the Affirmative Defense section,
      3. Provide a copy of the denial of coverage letter to the party seeking coverage for the loss (i.e. alleged negligent party).
      If these three requirements are met, the arbitrator will close the arbitration without prejudice by upholding the affirmative defense of no jurisdiction. This does not apply to cases filed by MVAIC.
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  33. Does the above apply to issues of non-involvement?
     
    • No, the issue of an insured's involvement is an issue of fact or liability, not coverage. The Respondent carrier has the duty to defend its insured (i.e., provide coverage). The liability argument of non-involvement is to be presented in the contentions and supported with evidence for the arbitrator's consideration (i.e., the insured's statement or a vehicle log confirming where the vehicle was when the loss occurred). The arbitrator's decision will be neither collateral estoppel nor res judicata to any litigation brought against the insured of the respondent. That said, if litigation is pending, a deferment may be requested.
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  34. May a disability insurer seek a loss transfer recovery in arbitration?
     
    • Yes. Under Sec 227 of the Worker's Compensation Law which is the Disability Benefits Law, a carrier which pays disability can recover its disability payments in a case in which the tortfeasor is a covered person and the accident contains a qualifier as set forth in Sec 5105 of the Insurance Law. The reason is similar to that of a Worker's Comp carrier recovering lost wages-the disability payments are an offset to PIP under Article 51 of the Insurance Law and just as Workers Comp wages are recoverable, disability payments are-subject to their being a qualifier.
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  35. May loss transfer arbitration be brought against a Federal Government agency?
     
    • No. Although the Federal government vehicle may meet the criteria for "covered" and a qualifying vehicle may be present, the Federal Government may not be brought into a state mandated arbitration proceeding.
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  36. May a No-Fault insurer assert a loss transfer claim for Additional PIP (APIP)?
     
    • No. Additional PIP is not subject to loss transfer pursuant to Section 5105 of the Insurance Law which provides only for mandatory arbitration of basic no fault benefits.
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  37. Is a notice of claim required to be served upon a governmental entity within NYS within 90 days to preserve the right to bring a loss transfer arbitration, and what is the appropriate statute of limitation for arbitration in such cases?
     
    • No, it is not required. General Municipality Law 50e does not apply and the Statute of Limitations is, as in all other cases, three years from each payment. The New York State Court of Appeals ruled in the case of City of Syracuse v. City of Utica that Article 51 of the Insurance Law is paramount in these cases and the provisions of General Municipality Law and Court of Claims Act requiring notices of claim and setting short statute of limitation do not apply to loss transfer arbitration proceedings.
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  38. Is e-law the only acceptable proof to support whether a deferment is warranted if a deferment request is challenged?
     
    • No. E-law is one form of evidence, but it is not the only acceptable form that can be submitted. A party may submit e-law to support that litigation is still pending. However, the adverse party may submit other forms of evidence to support that the litigation is no longer pending. For example, a Stipulation of Dismissal may have been filed with the court that is not yet reflected in e-law. An arbitrator's decision on whether to grant a deferment, if challenged, will be based on the evidence that best proves the current state of the companion claim or suit.
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  39. Is joint and several liability an available Affirmative Pleading in New York Loss Transfer Arbitration? In other words, in a case involving multiple vehicles, may I file against only one Respondent and assert joint and several liability to recover 100% from that Respondent, even if that Respondent is not 100% negligent for the loss?
     
    • No. Loss transfer proceedings entail a determination of comparative negligence among the accident participants. In New York, joint and several liability falls under N.Y.C.P.L.R. § 1601. The section specifically relates to situations in which a verdict or a decision is reached in a claim for personal injury. As PIP is separate and distinct from claims for personal injury, it is not applicable. Moreover, joint and several liability applies to situations in which a verdict has already been issued finding joint liability between several tort feasors. As such, an Applicant may not claim joint and several liability as an affirmative pleading in New York Loss Transfer Arbitration. Rather, the Applicant should include all identified parties as Respondents to the arbitration filing for a determination of respective culpabilities.
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  40. May a health insurer that pays for medical treatment that should have been covered by the insured's no-fault automobile insurance carrier maintain a reimbursement claim against the no-fault insurer within the framework of the No-Fault law (Insurance Law 5101)?
     
    • Pursuant to a June 2016 court decision, it may not. In its decision, the court noted that Insurance Law 5101 pertains to health providers.
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  41. The rules provide that an "Applicant or Respondent may send a representative to a hearing. If an appearance is to be made, the intent to do so must be indicated in the filing or response." I understand appearances may be made in person at the NYC hearing location or via a telephone conference call. What is the process to appear via telephone conference call?
     
    • The intent to appear is indicated in the Administrative Requests section on the Incident Info tab. To appear via telephone conference, simply note the request. AF will send the call-in information as well as the date and time for the call.
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  42. Does a new Inter-company Reimbursement Notification Form (IRNF) need to be sent to the Respondent if additional payments are made?
     
    • Only one IRNF is required prior to filing arbitration.
    • If the Applicant makes additional payments after filing arbitration and amends its damages, the Applicant need only send the original IRNF to the Respondent. The Applicant does not have to send an updated IRNF each time additional payments are made and/or the filing is amended.
    • If the Applicant makes additional payments and submits a supplemental filing (the original filing was heard/closed), a new IRNF must be sent to the Respondent for the supplemental damages included in the supplemental filing.
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  43. Section 65-4.11 (b) provides that arbitrations shall be administered by "an Inter-Company Arbitration administrator designated by the Superintendent." Part (d) further provides the arbitrations "shall be conducted in accordance with procedures established by the Administrator and approved by the superintendent." Where is Arbitration Forums (AF) specifically designated as the administrator?
     
    • AF is proud to have served as the inter-company arbitration administrator since the program's inception in the early 1970's. Circular Letter No. 10 (2005) issued May 16, 2005, by the New York Department of Financial Services, reinforces AF's authority as administrator.
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