Frequently Asked Questions

Procedural Clarifications

  1. When a company becomes signatory, is arbitration compulsory only for claims that arise on and after that date?
  2. I have a claim involving an auto and a home/building, do I file it in Auto or Property?
  3. Our insured sustained auto damages at a car wash. Can we file arbitration even though the Respondent isn't an auto liability carrier?
  4. What do I need to do to request a deferment?
  5. What are valid reasons to request a deferment, or, if my request is challenged, what will the arbitrator consider in determining whether or not to uphold my request?
  6. Explain the process to assert no coverage or denial of coverage?
  7. On occasion, our company incurs fees for cases that are not ours. How can we avoid this from happening?
  8. How do I implead another party under Rule 1-4?
  9. How does Rule 1-4 apply to claims involving phantom vehicles?
  10. How does Rule 1-4 apply in States with joint and several liability laws.
  11. If a company has policy limits can an arbitrator disregard the policy limit and award compensation over the limits? And, if so, is the award binding?
  12. Can I add (implead) another Respondent if I respond online?
  13. An Applicant has filed against me and another member (two Respondents). I want to file a Counterclaim, but only against the other Respondent. The Applicant is an innocent party. How do I do this?
  14. Must the filing company always name all potential tortfeasors in order to arbitrate?
  15. What are the options of the filing company if a responding party argues the liability of a negligent tortfeasor who is not a party to the arbitration or if a known negligent party is not a signatory and does not consent when another tortfeasor is a signatory?
  16. To whom must a denial of coverage letter be addressed to comply with Rule 2-4?
  17. May a case that has been closed by arbitrator because of an Affirmative Defense be filed in a court of law?
  18. Under what circumstances may a decision of an arbitrator be amended or voided?
  19. What is a sufficient reason to justify a request for a deferment?
  20. Can arbitration ever be filed after the statute of limitations has run?
  21. Must a signatory company arbitrate a case when the amount in dispute exceeds the forum limit?
  22. When are you able to recover legal fees?
  23. Can a dispute regarding a denial of coverage ever be arbitrated?
  24. How are you able to challenge the amount of damages as the responding party?
  25. What happens when a party does not pay an arbitration award?
  26. Must an applicant provide proof of payment to prove damages and secure an award?
  27. I'm curious to know whether a carrier can deny coverage for lack of cooperation or no response from their insured and use that as an affirmative defensive to avoid paying a loss?
  28. Can I consent to allow an insured to file intercompany arbitration against my company who is a member, or file intercompany arbitration myself against an individual with their consent? I have a claim where the adverse insured does not have collision coverage with their insurance carrier. I am wondering if I could get them to consent to arbitrate.
  29. What do arbitrators consider when they are presented with conflicting facts by the parties?
  30. Which rules apply on a case when the rules are revised between the date of filing and the scheduled hearing date?
  31. Can I fax my arbitration application or response?
  32. Can I fax my supporting arbitration evidence?
  33. Can I list and submit as evidence a link to an external Web site (i.e., YouTube) that has a video of how the accident/loss occurred?
  34. What is the difference between the terms - Materials Due Date, Ready to Hear Date, and Estimated Heard by Date?
  35. In which states is intercompany arbitration mandatory through AF?
  36. I have a claim wherein our insured sustained damage to their vehicle as well as two car seats. Does this all get filed in the Auto forum? Or, do I file the vehicle damages in Auto and the car seats in Property?
  37. What happens when the liability admitted percentage is different from the arguments made in the contentions?
  38. Should the responding company admit liability?
  39. If we file arbitration and do not prevail, or the arbitrator applies comparative negligence, are we required to pay the adverse carrier's insured's claim if the adverse carrier did not file a counterclaim (i.e., no collision coverage, claim amount is within deductible, etc.)?
  40. What is the appropriate way to raise the existence of a liability deductible or self-insured retention when responding to a filing?
  41. If there are multiple, related filings against my company and I request a deferment, is the deferment fee assessed on each case?
  42. Must signatories file all PIP claim disputes arising from Kentucky losses with AF?
  43. Must an insurer dismiss litigation, per Rule 1-2, when it seeks recovery of a Kentucky PIP claim?
  44. Can video evidence, such as dash cam or security videos, be submitted?
 
  1. When a company becomes signatory, is arbitration compulsory only for claims that arise on and after that date?
     
    • No, the date of the loss is not controlling. What controls compulsory jurisdiction is the status of the claim on the signatory effective date. If a pending claim meets the provisions of Article First, it is subject to compulsory arbitration, regardless of the accident date. The key word is pending. Pending is synonymous, from the viewpoint of arbitration, with active claims. Closed claims are excluded, as are claims that have been abandoned prior to a company's decision to participate in arbitration.

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  2. I have a claim involving an auto and a home/building, do I file it in Auto or Property?
     
    • The damages being sought determine which forum is compulsory. If you are seeking recovery of auto damages (e.g. tree limb fell on car), you must file in Auto; if you are seeking recovery of property damage (e.g. car drove into home/building), you must file in Property. The Respondent's liability coverage is irrelevant. A Respondent can be an auto liability, homeowner's liability, general liability, products liability carrier, etc.

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  3. Our insured sustained auto damages at a car wash. Can we file arbitration even though the Respondent isn't an auto liability carrier?
     
    • Yes. Since you are seeking recovery of auto damages, the Auto forum is compulsory. The type of damages sought determines which forum is compulsory, not the type of coverage afforded by the Respondent. The type of liability coverage afforded by the Respondent is irrelevant. A Respondent can be an auto liability, homeowner's liability, general liability, products liability carrier, etc. So, if the carrier is signatory to Auto, arbitration is compulsory.

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  4. What do I need to do to request a deferment?
     
    • For an initial deferment request, select "Yes" for "Request Deferment" on the Incident Info tab and explain why a one-year deferment is needed in the Deferment Justification field. Per Rule 2-10, a deferment request by the filing company will be automatically granted. A responding company may challenge the request if it believes the delay is not warranted. If challenged, the case will be heard, and the arbitrator(s) will consider the validity of the request. If the request is upheld, the case will be deferred for one year from the date of filing. If the request is denied, the arbitrator will continue to hear the disputed issues, i.e., coverage, liability, and damages. Deferment requests by a responding company will be automatically challenged, and the same process as outlined above will be followed.
    • If you need to renew your deferment request (after the initial one-year period lapses), the case status automatically changes from "Deferred" to "Scheduled Hearing" 120 days before the current deferment period expires. At this time, the Respondent will access the case, select "Amend Response" and then "Yes" for "Request Deferment" on the Incident Info tab. The Deferment Justification originally entered will carry over and can be used or amended if needed. If you originally responded via mail/paper, you will have to refile your paperwork via mail/paper. If you resubmit a copy of the original paperwork, you should initial where you originally signed the Certification of Service and write the new date so our Member Service Department knows it is a deferment renewal request.

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  5. What are valid reasons to request a deferment, or, if my request is challenged, what will the arbitrator consider in determining whether or not to uphold my request?
     
    • For starters, a deferment is a one-year postponement of a hearing due to the existence of a companion claim or suit. A deferment is not to be requested simply to get more time to prepare/submit a response. When considering whether to uphold a deferment request, the arbitrator will look at what effect the arbitration hearing will have on the companion claim/suit and vice versa. Since the arbitration decision is neither res judicata nor collateral estoppel, it, in itself, should have no effect on the companion claim/suit. Some reasons a deferment may be warranted include policy limit (including single-limit policy), discovery still in progress (results of which will be used in arbitration as well as litigation), and active fraud investigation. In many instances, when you have Auto and PIP or Med Pay companion claims, the arbitrator may agree to defer the PIP or Med Pay (for the above reasons) but not the Auto (unless there is a single-limit policy that would affect both claims). In closing, if you request a one-year deferment, you must effectively justify the request (Deferment Justification section of Incident Info tab) so the arbitrator understands why the companion claim/suit must be resolved first.

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  6. Explain the process to assert no coverage or denial of coverage?
     
    • The Incident Info tab in our Online Filing system (OLF) contains two coverage queries for the responding company to answer: "A liability policy was in effect at the time of loss" and "Has coverage been denied for this claim."

      For the first question, the Respondent will check "Yes" if the listed "Insured," as identified by the Applicant, is an insured under a liability policy or is self-insured for liability. Check "No" if the listed "Insured" is not insured under a liability policy, the policy expired, the insured has collision coverage only (no liability coverage), or the listed self-insured has liability coverage with a carrier. If the Respondent answers "No" to the first question, it must explain this in the Affirmative Defense section, i.e. no liability policy in effect or policy expired prior to loss. The case will be closed as arbitration lacks jurisdiction.

      If the Respondent answers "Yes" to the first question, it must answer the second as well. If it answers “Yes” that coverage has been denied to the party seeking coverage for the loss in dispute, it must also assert the Affirmative Defense and submit a copy of the denial letter to that party as evidence. If submitted, the filing will be administratively closed as arbitration will lack jurisdiction (per Article Second (e)). If a denial letter is not submitted, the case will proceed to hearing wherein the coverage defense will be considered by the arbitrator(s).
       

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  7. On occasion, our company incurs fees for cases that are not ours. How can we avoid this from happening?
     
    • When you file as Applicant, list your correct Company Code. The Company Code listed is used for billing purposes (i.e. filing fee, reschedule fee). When you are the Respondent, list your Company Code on your response. By indicating the proper Company Code on the arbitration application, you will eliminate any billing errors.

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  8. How do I implead another party under Rule 1-4?
     
    • If the unnamed party is a signatory, you must name them as a Respondent (Company 3 in Special) on the application. You will present your liability position in your Contentions. You will send a copy of your response to AF and all parties.

      If the unnamed party is not a signatory, you can secure their consent to participate in the arbitration and then name them as a Respondent (or Company 3) and proceed as above. If their consent is not secured, you do not name them as a party on the application. Rather, you present your liability case in your contentions and argue the unnamed party’s negligence. The filing company has the right to withdraw their application if they wish pursue all parties in litigation. If the filing is not withdrawn, the arbitrator(s) will apportion liability and award damages, if applicable, against the named Respondent(s). The filing company is barred from pursuing further recovery.

      If the unnamed party is uninsured, you do not name them as a party on the application. You present your liability case in your contentions. The case proceeds as above.

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  9. How does Rule 1-4 apply to claims involving phantom vehicles?
     
    • Since the unnamed alleged tortfeasor is a phantom, arbitration would retain jurisdiction as the dispute is between two members. The named Respondent (or Company 3 in Special) will need to implead this unknown party by arguing their respective liability in their contentions. The arbitrator(s) will apportion liability and award the filing company what it is owed by the named Respondent.

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  10. How does Rule 1-4 apply in States with joint and several liability laws.
     
    • If joint and several liability is asserted, supported, and applies, the arbitrator must follow local law and apply it in the arbitration. Local law controls the decisions and the parties neither gain nor lose any rights in arbitration that they have in litigation.

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  11. If a company has policy limits can an arbitrator disregard the policy limit and award compensation over the limits? And, if so, is the award binding?
     
    • If the Respondent does not properly assert and support its policy limit coverage defense under the Affirmative Defense tab, or it fails to assert at all, the arbitrator may award the Applicant's full claim amount. Per Rule 2-4, any affirmative defense MUST be properly asserted and supported, i.e., dec page or something. Last, if the Rules are not followed, including Rule 3-9, and an award in excess of the policy limits is given, the award is binding and most likely would be enforceable by a court.

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  12. Can I add (implead) another Respondent if I respond online?
     
    • Yes. If per Rule 1-4 you wish to implead/add another signatory, there is an option to add a Respondent.

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  13. An Applicant has filed against me and another member (two Respondents). I want to file a Counterclaim, but only against the other Respondent. The Applicant is an innocent party. How do I do this?
     
    • Simply file a Counterclaim as you normally would so the cases are related. Your contentions will/should outline your case so the arbitrator(s) who hear the cases know that you are seeking your recovery from the other Respondent.

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  14. Must the filing company always name all potential tortfeasors in order to arbitrate?
     
    • No, but it is strongly recommended to ensure optimal recovery. A filing company need only name any signatory tortfeasor from whom they seek recovery. If they don't, however, Rule 1-4, affords a responding company the right to implead another party whom they believe to be at fault. If the insurer for that party is signatory (or the party itself is a self-insured signatory), the responding company must name that party as a Respondent (or Company 3 in Special and UM forums). If the other party is not a signatory, the responding company cannot name them as a party (absent their consent to participate) but they may argue a nonmembers liability in their contentions, the filing company will have two options: 1, withdraw their filing and pursue all parties outside of arbitration, or 2, allow the case to proceed to hearing to secure any amount the arbitrator deems the signatory responding company is liable for. By allowing the case to proceed to hearing, the Applicant thereby waives pursuit of any other party of any remaining balance.

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  15. What are the options of the filing company if a responding party argues the liability of a negligent tortfeasor who is not a party to the arbitration or if a known negligent party is not a signatory and does not consent when another tortfeasor is a signatory?
     
    • The filing company has a choice to arbitrate against only the signatory party, or file an action for recovery in a court against all negligent parties. If the Filing company chooses to arbitrate and the negligence of the not named party is successfully argued by the named responding company, the Filing company may NOT later file another action in court against the non-signatory. By choosing to pursue recovery via arbitration, the filing company waives any right to pursue other parties separately outside of arbitration's jurisdiction.

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  16. To whom must a denial of coverage letter be addressed to comply with Rule 2-4?
     
    • To document a denial of coverage, a denial letter must be directly addressed to the entity for whom coverage is denied (or, the party seeking coverage) informing him of the denial (not always the Named Insured). A letter to another entity (i.e. any third party with a liability claim/action) regarding the denial is not sufficient for purposes of Rule 2-4. This includes correspondence that "copies" the entity for whom coverage is denied.

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  17. May a case that has been closed by arbitrator because of an Affirmative Defense be filed in a court of law?
     
    • An Affirmative Defense bears only on the authority of an arbitrator on behalf of Arbitration Forums, Inc. to decide the dispute in arbitration. It has no bearing on the right of recovery in any other venue and is NOT a finding of no liability. It means only that Arbitration Forums has no authority over, or may not decide, the dispute.

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  18. Under what circumstances may a decision of an arbitrator be amended or voided?
     
    • Unless the decision is eligible for Appeal under Rule 2-12 in the Property or Special forums, only a clerical or jurisdictional error can be reviewed. Any other issue, such as interpretation of law or evidence, is within the discretion of the arbitrator and may NOT be reviewed, amended or voided.

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  19. What is a sufficient reason to justify a request for a deferment?
     
    • A one-year deferment is requested when a pending companion claim or suit to the matter in arbitration must be concluded before an arbitrator considers the dispute in arbitration. The Deferment Justification must state a clear reason why the arbitration hearing must be postponed, and evidence to support that reason should be provided. Since the sufficiency of the justification is within the arbitrator's discretion and is specific to each case, it is difficult to provide a list of valid reasons for deferments. All that can be stated is, a deferment request must outline the affect the pending claim or suit has on the matter in arbitration and why such a claim or suit must be concluded prior to the arbitration matter proceeding to hearing. It also must be stressed that since the decision on the deferment request is at the arbitrator's discretion, it is not subject to review.

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  20. Can arbitration ever be filed after the statute of limitations has run?
     
    • Yes. Under Rule 1-2, if a matter is in litigation and it is determined that all parties are represented by signatory companies, arbitration must be filed even if the Statue of Limitations has expired. It must be noted though, that arbitration must be filed within 60 days of dismissal or the responding company will be free to assert the delay as an Affirmative Defense.

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  21. Must a signatory company arbitrate a case when the amount in dispute exceeds the forum limit?
     
    • No. Each forum includes a monetary limit for compulsory dispute. If the claim exceeds this amount, the matter is outside arbitration's jurisdiction. Arbitration might still be filed with written consent, or, the filing company may file arbitration for the monetary limit and waive pursuit of the balance of the claim.

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  22. When are you able to recover legal fees?
     
    • Legal fees may be recovered for one of two reasons. A party may be entitled to recover attorney fees if a case is removed from arbitration because of an objection to jurisdiction (affirmative defense) raised by the responding party, and it is discovered that it was properly placed in arbitration and the filing company refiles the case (Rule 2-8). Legal fees may also be recovered in Special Arbitration. For more details, please refer to Chapter 16 in AF's Reference Guide.

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  23. Can a dispute regarding a denial of coverage ever be arbitrated?
     
    • Yes. Per Rule 2-4, if a responding company asserts the affirmative defense of denial of coverage they must also submit a copy of their denial of coverage letter to the person seeking the coverage under the policy. If a denial of coverage letter to the proper party is submitted, the case will be administratively closed. If no such letter is submitted, or the submitted letter is not to the appropriate person (i.e. letter is directed to Named Insured not person driving vehicle, or, to filing company advising them that coverage is being denied), the case will proceed to hearing wherein the denial of coverage position will be ruled on by an arbitrator. Another example could be where the responding company's position is based on the theft of their insured's vehicle. If the thief is unknown, the responding company will be unable to send a denial of coverage letter. This type of case will also proceed to hearing wherein the arbitrator will consider and rule on the defense of theft. Last, a denial of coverage can also be arbitrated in our UM forum. The UM forum is where the correctness of a coverage denial is the ONLY issue that may be decided and that is ONLY if the denial of coverage resulted in a claim being made under the uninsured motorist provisions of the policy.

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  24. How are you able to challenge the amount of damages as the responding party?
     
    • The Dispute Damages tab must be used to dispute the amount of damages sought by the filing company. Damage arguments in any other section will not be considered by the arbitrator. Also, when disputing damages, you must state the specific damages being disputed and the disputed amounts. Simply stating "All damages are disputed" will not yield a favorable result. Lastly, if no entry is made in the Dispute Damages tab, damages are not at issue.

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  25. What happens when a party does not pay an arbitration award?
     
    • Rule 5-2 provides the process to follow to secure payment of an award. The rule also contains language that permits the filing company to seek reimbursement of any legal expenses, costs, etc. that are incurred should litigation have to be filed to enforce payment.

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  26. Must an applicant provide proof of payment to prove damages and secure an award?
     
    • The distinction between proof of payment and proof of damages is important. Confusion has existed at times from both sides of a dispute, as well as arbitrators. Proof of payment is a must only when a respondent, through its answer, affirmatively challenges the existence of a subrogation claim. If this is not challenged affirmatively through the respondent's answer, then the presumption is the applicant has made payment to its insured. Otherwise, it would not have a subrogation claim and arbitration would not be filed. Such challenges should be rare and the challenge should be substantiated. A challenge should not simply be raised because the Applicant did not list Proof of Payment in their evidence listing. We don't want to require the submission of unnecessary documentation. If the applicant's claim for subrogation is challenged, then as part of its evidence the applicant must prove payment. This could take the form of a copy of the check or draft issued to an insured in payment of the loss or a copy of the proof of loss executed by the insured on the claim. While it is not a requirement to submit proof of payment to prove damages, we do recommend it be included in the evidence packet. Many arbitrators find it useful to verify if the filing company has listed their damage claim correctly (not included their deductible twice, deducted their salvage return. It is also of particular benefit when there are prior partial payments.

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  27. I'm curious to know whether a carrier can deny coverage for lack of cooperation or no response from their insured and use that as an affirmative defensive to avoid paying a loss?
     
    • A responding company can assert denial of coverage as an affirmative defense. Per Rule 2-4, if they submit a denial of coverage letter to the appropriate party (advising them that coverage is being denied due to noncooperation or no notice, etc.), the case will be administratively closed as lacking jurisdiction (Article Second). You would be free to pursue the 'uninsured' party directly. If no such letter is submitted, the case will proceed to hearing. The arbitrator will consider the coverage defense and any evidence submitted to support it. He/She will either uphold or deny the defense. It should be noted that each State may have different 'requirements' that a carrier must comply with to uphold such a defense.

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  28. Can I consent to allow an insured to file intercompany arbitration against my company who is a member, or file intercompany arbitration myself against an individual with their consent? I have a claim where the adverse insured does not have collision coverage with their insurance carrier. I am wondering if I could get them to consent to arbitrate.
     
    • The 'intercompany' arbitration agreements are available only to insurers, self-insureds, or commercial insured with large retentions/deductibles, not individuals - even if they should wish to participate. Their participation is excluded under the individual Agreements.

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  29. What do arbitrators consider when they are presented with conflicting facts by the parties?
     
    • An arbitrator's decision must always be based solely on the evidence that is submitted. In cases where conflicting versions of an accident/loss are presented (i.e. conflicting insured versions of a motor vehicle accident), and no other evidence corroborates either insured's version, determining liability will most likely be impossible. An exception would be where the filing company is an innocent party (i.e. parked or legally stopped vehicle) seeking recovery from multiple respondents whose accident caused their damages. In these cases, while the specific liability percentage of the respective responding companies may not be determined, the filing company has proven that their damages were the result of their accident and an award may be apportioned equally amongst the responding companies.
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  30. Which rules apply on a case when the rules are revised between the date of filing and the scheduled hearing date?
     
    • Cases are administered in adherence to the rules in effect on the date of filing.
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  31. Can I fax my arbitration application or response?
     
    • No, Applications, Responses or Contentions Sheet are NOT accepted via fax. You can utilize our Online Filing system to submit applications or responses. Online Filing offers a number of benefits including saving you both time and money and having a positive effect on the environment by eliminating paper from the arbitration process.
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  32. Can I fax my supporting arbitration evidence?
     
    • Yes, supporting evidence will be accepted via fax up to the Materials Due Date but ONLY if the following conditions are met. Faxed evidence must be:
      • Sent with the AF bar-coded document coversheet printed from the system (with the AF coversheet placed on top of each evidence item; no other coversheet should be included) AND
      • Faxed to 813-889-4060
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  33. Can I list and submit as evidence a link to an external Web site (i.e., YouTube) that has a video of how the accident/loss occurred?
     
    • AF does not currently accept audio or video files via direct upload or links to external Web sites like YouTube as evidence. AF, as well as our member companies whose arbitrators hear cases remotely, prohibits access to external links as part of its IT security policy to prevent the spread of viruses, malware, etc.

      If a party wishes to have video evidence viewed by the Arbitrator, it must declare the tape, DVD, etc. as evidence. The member must also request a personal appearance. AF will contact the member representative to schedule a videoconference for the arbitrator to view the declared evidence.

      In the event a member is unable to participate or share evidence via videoconferencing, AF will make arrangements with the member to provide the evidence to be viewed by an arbitrator, or the member may present the video evidence in person and must arrange for equipment to be available to present the evidence to the arbitrator.

      In the case of audio evidence (such as recorded statements), AF requires the written transcript of the recording be declared and provided as evidence for the arbitrator to view.
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  34. What is the difference between the terms - Materials Due Date, Ready to Hear Date, and Estimated Heard by Date?
     
    • Materials Due Date: This is the deadline that all case actions must be completed, i.e., responses, amendments, reschedules, evidence submission.
    • Ready to Hear Date: This is the date the case is ready to be assigned to an arbitrator for resolution; the Materials Due Date and Last Reschedule Date have lapsed.
    • Estimated Heard by Date: This is the adjuster's diary date for a decision. Depending on arbitrator participation, this is the latest date by which the decision will be published.
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  35. In which states is intercompany arbitration mandatory through AF?
     
    • Below are the States where intercompany arbitration is mandatory per state statute and AF is specifically named as the administrator. The source is also provided, however, this is subject to change, and AF does not guarantee its accuracy. For other states that mandate arbitration for disputes between insurers but do specifically designate AF as the provider, arbitration would be compulsory if all parties are signatory to the PIP Arbitration Agreement for the loss state; arbitration may also be filed with consent.
      State Source Forum
      DC § 31-2405 (i) Auto Arbitration
      DE 21 Del. C. § 2118(g)(3) Auto, PIP, Property, and Special (when claim involves DE registered motor vehicle)
      KY KRS 304.39-070 PIP (Authority for PIP arbitration is given to KIAA, whose rules reflect that either the KIAA or AF may be selected for arbitration)
      MD Insurance Code 19-514 Auto Arbitration
      MN § 65B.53 PIP Arbitration
      NY § 65-4.11 of Regulation 68 PIP Arbitration (Loss Transfer/Priority of Payment)
      VA § 38.2-2231 Auto Arbitration
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  36. I have a claim wherein our insured sustained damage to their vehicle as well as two car seats. Does this all get filed in the Auto forum? Or, do I file the vehicle damages in Auto and the car seats in Property?
     
    • The answer, and the forum in which you will file, will depend on which coverage was used to pay the damages. If you paid everything under auto coverage, Auto would be the appropriate forum. If you paid the car seat claim under Homeowners coverage, you would file it in the Property forum as companion filing to Auto filing (for the vehicle damage claim).
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  37. What happens when the liability admitted percentage is different from the arguments made in the contentions?
     
    • The entry in the "I admit ____% liability" field takes precedence over any liability arguments made in the responding company's contentions in most cases. For example, in cases involving a single impact, if the responding company enters "100%" in this field but also makes liability arguments in its contentions, the arbitrator's liability decision will be controlled by the 100% liability admission. (If "0%" is entered in this field but no liability arguments are made, the arbitrator is free to deem that liability is not at issue and resolve any damages dispute.) In cases involving multiple impacts where the Respondent may be admitting 100% liability for the Applicant's rear damages only, the arbitrator will have the discretion to rule on the disputed front damages.
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  38. Should the responding company admit liability?
     
    • Yes, especially when liability is admitted and the only disputed issue is damages, or when partial liability is admitted. The responding company is the party that sets forth the issue(s) to be decided by the arbitrator. By entering a percentage of liability in the "I admit ____% liability" field, the responding company is advising the arbitrator that it concedes this amount of liability. The arbitrator can find the Respondent more liable than it admitted, but not less. Also, an offer is not a concession of liability. Prior negotiation correspondence between the parties can be submitted to support a liability theory, but it does not trigger whether liability is conceded. Rather, it is the Respondent's answer to the arbitration filing and what is entered in the "I admit ____% liability" field.
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  39. If we file arbitration and do not prevail, or the arbitrator applies comparative negligence, are we required to pay the adverse carrier's insured's claim if the adverse carrier did not file a counterclaim (i.e., no collision coverage, claim amount is within deductible, etc.)?
     
    • There is nothing in the Arbitration Agreements or Rules that compels a signatory to pay an adverse insured's claim. The Intercompany Arbitration Agreements bind the signatory companies to arbitrate disputes among themselves. The insured is not a party to the Agreement. Article Third of the various Agreement specifically states that an arbitration decision is "neither res judicata nor collateral estoppel to any other claim or suit arising out of the same accident, occurrence, or event" and "conclusive only of the issues in the matter submitted to the panel and only as to the parties to the arbitration."
  40. What is the appropriate way to raise the existence of a liability deductible or self-insured retention when responding to a filing?
     
    • There are two ways to raise a liability deductible or self-insured retention:
      1. As an Affirmative Defense when the amount sought by the filing company is less than or within the liability deductible or self-insured retention amount — In this scenario the exposure rests completely with your insured and arbitration would lack jurisdiction over the claim, so raising as an Affirmative Defense to jurisdiction would be appropriate.
      2. As a Damages Dispute when the amount sought by the filing company is greater than the liability deductible or self-insured retention amount — In this scenario the Respondent carrier may have an exposure (for the amount in excess of the liability deductible/self-insured retention), so arbitration would retain jurisdiction over the dispute. The responding company would need to present the issue of the liability deductible/self-insured retention in the Dispute Damages area and provide supporting evidence, so these damages can be reduced by the arbitrator if liability is proven against the Respondent.
  41. If there are multiple, related filings against my company and I request a deferment, is the deferment fee assessed on each case?
     
    • Yes. Per Rule 2-10, companion cases are treated as one claim, and each related case will be deferred and the deferment fee charged accordingly.
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  42. Must signatories file all PIP claim disputes arising from Kentucky losses with AF?
     
    • Kentucky statutory authority for PIP arbitration is given to KIAA whose rules reflect that either the KIAA or AF may be selected for arbitration.
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  43. Must an insurer dismiss litigation, per Rule 1-2, when it seeks recovery of a Kentucky PIP claim?
     
    • KRS 304.39-070 gives insurers two options for resolving disputes: (1) joining as a party in an action that may be commenced by the person suffering the injury, or (2) filing intercompany arbitration. If an insurer opts (1), Rule 1-2 cannot be enforced; the statute takes precedence. This applies specifically to Kentucky PIP claims.
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  44. Can video evidence, such as dash cam or security videos, be submitted?
     
    • Yes, video evidence can be submitted in both the TRS and OLF arbitration platform.
      • The file size cannot exceed 40MB.
      • Acceptable file types are .mov, .wmv, .avi, .mp4, and .vob.
      • All submitted video file types are converted to .mp4 format to eliminate any compatibility issues for the arbitrator.
      • Bookmarking may be used on lengthy videos to indicate points of interest to the arbitrator.
      • Examples of appropriate video evidence include: dash cam video of accident, security video showing accident, and video of scene.
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