Special Frequently Asked Questions

  1. Is there anything I have to do before filing in Special Arbitration?
  2. Where do I file?
  3. What are the general categories of disputes that are heard in Special Arbitration?
  4. May a case involving first-party payment be heard in Special Arbitration?
  5. Is there a time limit for filing Special Arbitration?
  6. Who pays the filing fee for participation in the Special Arbitration Forum and how much does it cost?
  7. Why should I use Special Arbitration?
  8. Specify the conditions that invoke compulsory arbitration among insurers when there are two or more parties allegedly responsible for the bodily injury and/or property damages of a third party.
  9. Will the arbitrator think I am liable because I settled the claim?
  10. Specify the conditions that invoke compulsory arbitration in overlapping coverage disputes.
  11. Can I arbitrate before settlement?
  12. Can I arbitrate against a nonmember?
  13. Can I be subject to exposure in excess of my policy limits?
  14. What is the monetary limit for the Special Arbitration Forum?
  15. Once a case is in litigation, may I settle the case and bring it into arbitration?
  16. Do parties have to agree on the amount prior to settlement?
  17. Can I recover my legal expenses in Special Arbitration?
  18. Is it necessary for me to file a counterclaim in Special Arbitration?
  19. Can I file a companion claim along with my Special Arbitration filing? Will the cases be heard together?
  20. Can I file an uninsured/underinsured motorist claim in Special Arbitration?
  21. Can workers' compensation subrogation cases be filed in Special Arbitration?
  22. How many arbitrators will hear my case?
  23. Will I know when the case will be heard?
  24. How and when will I find out the arbitrator's decision?
  25. Will the arbitrator explain the basis for his/her decision?
  26. Can I bring other parties into Special Arbitration?
  27. What are the arbitrator's qualifications?
  28. Can the decision in arbitration be applied to ther claims or suits arising from the same accident, occurence, or event?
  29. Am I able to request a deferment in Special Arbitration?
  30. Does Special Arbitration have an appeal process?
  31. Does Special Arbitration have provisions for product liability cases?
  32. How are fees for Special different than for other forums?
  33. Can Special Arbitration be used for Construction Defect claims?
  34. What kind of concurrent coverage issues would be filed in Special Arbitration?
  35. Why are all parties assessed the filing fee in Special Arbitration, unlike in the other forums where only the filing party is assessed the filing fee?
  36. We insure a rental car company. The renter of our insured vehicle was at fault for an auto accident and she has her own auto policy. In our state, the rental car company's policy is excess over any other applicable auto insurance. If the renter's auto policy is also excess, the loss is shared co-primary. If we are unable to negotiate settlement with the renter's auto insurer, is the dispute resolved in the Auto forum or Special forum?
  37. We paid a claim under a PIP policy but believe there is concurrent coverage and want to pursue a portion or all of the PIP benefits paid. Do we file in PIP or Special Arbitration?
  38. Can a filing company recover a deductible paid by their insured in Special Arbitration as a part of a claim for contribution?
  39. If my insured (Company 1) and another insured (Company 2) are in an accident and another "innocent" vehicle is damaged and the driver injured, when I file Special Arbitration to seek contribution from Company 2, do I file one case and include both the PD and BI payments? Or do I file two cases, one for PD and one for the BI payment?
  1. Is there anything I have to do before filing in Special Arbitration?
     
    • As a condition precedent to filing in Special Arbitration, all parties should conduct direct negotiations in an attempt to settle the claim. The condition precedent requires the filing party, at a minimum, to list the correct and current representative's name, address, insured name, and claim file number for all adverse parties.
    Return to top
     
  2. Where do I file?
      Return to top
     
  3. What are the general categories of disputes that are heard in Special Arbitration?
     
    • Liability apportionment between alleged joint tortfeasors and/or first or third-party coverage disputes, overlapping and concurrent coverages, and subrogation of workers' compensation benefits paid by an insurer or a self-insured from an alleged tortfeasor after settlement are compulsory disputes. Other kinds of disputes may be heard with the consent of all parties.
    Return to top
     
  4. May a case involving first-party payment be heard in Special Arbitration?
     
    • Yes, a case involving a first-party payment can be heard in Special Arbitration if the case involves overlapping coverage issue. In most cases, all the other first-party reimbursement situations will fall within the jurisdiction of another AF program - subject to the rules and regulations of that forum.
    Return to top
     
  5. Is there a time limit for filing Special Arbitration?
     
    1. There is no time limit as long as a legal cause of action exists. AF follows the rules and guidelines of the local jurisdiction. However, Company #1 (who initiates the filing) should file within 180 days from the date of settlement. Exceeding the 180 days allows an affirmative defense to be raised and allows an opposing party to try to show the delay has caused prejudice.
    2. AF must receive all documentation by the close of business at least 10 full business days prior to the scheduled arbitration hearing.
    Return to top
     
  6. Who pays the filing fee for participation in the Special Arbitration Forum and how much does it cost to file?
     
    • Each participating party pays a fee of $95 per arbitrator.
    Return to top
     
  7. Why should I use Special Arbitration?
     
    • Cases are settled quicker, capping the exposure to the third party.
    • Minimizes the need for expensive and drawn out litigation
    • Simple and easy for an adjuster to use
    • Certified claims professionals make the decision, not lay jurors.
    Return to top
     
  8. Specify the conditions that invoke compulsory arbitration among insurers when there are two or more parties allegedly responsible for the bodily injury and/or property damages of a third party.
     
    • The alleged tortfeasor(s) must be a self-insured entity and/or an insured with a casualty insurance policy.
    • One of the tortfeasors must contend others are legally liable for: (1) bodily injury or property damage, or (2) providing defense for the third party action.
    • One or more of the insurers and/or self-insureds must have participated in the settlement of a claim with the third party.
    • The insurers or self-insureds must be signatories (members) to the Special Arbitration Agreement. (non-members may participate with consent)
    Return to top
     
  9. Will the arbitrator think I am liable because I settled the claim?
     
    • No, settlement of the claim will not prejudice the case of any participating party.
    Return to top
     
  10. Specify the conditions that invoke compulsory arbitration in concurrent coverage disputes?
     
    • All participating parties have a policy or self-insure casualty or property coverage for the same person, entity or risk for the same triggering event.
    • Either of the following conditions exists: (1) The insured is legally liable for a bodily injury or property damage claim and at least one of the insurers or self-insureds has settled the claim with the third party, or (2) The insured has suffered a loss or injury paid by at least one of the insurers or borne by the self-insured.
    • The insurers or self-insured are signatories (members) to the Special Arbitration Agreement. (Non-members may participate with written consent.)
    Return to top
     
  11. Can I arbitrate before settlement?
     
    • Yes, with written consent of the involved parties. You may submit cases to determine coverage disputes, apportion liability, allocate fault and/or determine contribution prior to settlement. Without written consent, there must always be a settlement with the injured party before filing Special Arbitration.
    Return to top
     
  12. Can I arbitrate against a nonmember?
     
    • Yes, with written consent or if the non-member implies consent when it submits an answer, unless the answer is an objection to AF's jurisdiction. The non-member's answer indicates an acceptance of a final and binding decision. However, it is recommended that you get written consent up front and submit a copy at the time of filing.
    Return to top
     
  13. Can I be subject to exposure in excess of my policy limits?
     
    • No, as long as the limit of liability is raised as an Affirmative Defense and supported by some form of evidence, in accordance with Rule 2-4. However, the other party may agree to accept your limits if they desire.
    Return to top
     
  14. What is the monetary limit for the Special Arbitration Forum?
     
    • Compulsory arbitration is applicable to a maximum of $250,000 contribution sought per claim.
    • Claims for separate parties arising out of the same accident, occurrence, or event are considered separate claims.
    • AF considers a claim and a companion claim for a different line of coverage as separate claims. As such, each claim has its own monetary limit.
    Return to top
     
  15. Once a case is in litigation, may I settle the case and bring it into arbitration?
     
    • Yes, as long as all tortfeasors who will participate in the arbitration have been released by the third party. If the statute of limitations has run or will have run, the case must be filed in Arbitration within 60 days of the dismissal of the lawsuit.
    Return to top
     
  16. Do parties have to agree on the amount prior to settlement?
     
    • No. An adverse party may contest the settlement amount.
    Return to top
     
  17. Can I recover my legal expenses in Special Arbitration?
     
    • Yes, you can seek recovery of legal fees in this forum. These fees consist of expenses directly related to the prosecution or defense of a lawsuit.
    Return to top
     
  18. Is it necessary for me to file a counterclaim in Special Arbitration?
    • No, there are no counterclaims in Special Arbitration. The arbitrator will determine the apportionment of liability among the involved parties. The arbitrator will also apply that percentage to the total amount of the settlement to determine each party's contribution amount. Recovery for legal fees set forth in a company's written response will also be decided if these amounts are listed on the application.
    • If another third-party claim arising from the same event was settled by another participating party for which liability should be apportioned, a separate Special case should be filed, referencing the original docket number. The second case will be heard as a Companion to the original filing.
    Return to top
     
  19. Can I file a companion claim along with my Special Arbitration filing? Will the cases be heard together?
    • Yes, a company has the option to file a companion claim along with the Special Arbitration filing. A companion claim is an additional claim(s) by or against a participating party arising out of the same accident, occurrence, event, or offense. The Special Arbitrator will hear the companion claim along with the Special Arbitration case if all related matters are filed together. and/or the related docket number is listed on the S-Form.
    Return to top
     
  20. Can I file an uninsured/underinsured motorist claim in Special Arbitration?
    • You may file cases for reimbursement of payments under UMBI or UMPD coverage from the insurer for the responsible tortfeasor that was identified or acknowledged coverage after the payment. If the insurer for the tortfeasor still maintains a no coverage position, the case should be filed in the Uninsured Motorist Forum. Disputes involving UIM coverage are not compulsory in Special Arbitration and may be heard only with consent or if the responding member answers without asserting the affirmative defense regarding jurisdiction.
    Return to top
     
  21. Can workers' compensation subrogation cases be filed in Special Arbitration?
    • Yes, if permitted in the applicable jurisdiction, Recovery of WC benefits from an alleged responsible 3rd party tortfeasor is permitted in this forum. No other dispute involved workers' compensation is compulsory in Special Arbitration.
    Return to top
     
  22. How many arbitrators will hear my case?
    • If the Contribution Sought Amount or legal Fees Sought Amount is under $15,000, one (1) arbitrator will hear the case. If either of these amounts is $15,000 or more, any party may request a three-person panel.
    Return to top
     
  23. Will I know when the case will be heard?
    • Yes, all parties are notified of the ready to be heard date at least 60 days prior to the case being heard. You may also utilize AF's Website.
    Return to top
     
  24. How and when will I find out the arbitrator's decision?
    • Once a decision is entered into AF's system (published), all interested parties will be notified that it is available on our Web site.
    Return to top
     
  25. Will the arbitrator explain the basis for his/her decision?
    • Yes, the arbitrator will provide comments explaining the basis for his/her decision.
    Return to top
     
  26. Can I bring other parties into Special Arbitration?
    • Yes, a company can add additional signatories for alleged tortfeasors that Company 1 did not name. Your rationale for including them in the case will be outlined in your Contentions. If the alleged tortfeasor is not insured by a signatory member you will argue their negligence in the Contentions.
    Return to top
     
  27. What are the arbitrator's qualifications?
    • All Special Arbitration cases are heard by arbitrators who are experienced claims professionals and have been certified under an Auto Liability and/or General Liability track. Our Special arbitrators consist of signatory members as well as AF staff employees.
    Return to top
     
  28. Can the decision in arbitration be applied to ther claims or suits arising from the same accident, occurence, or event?
    • No, the decision is conclusive only of the issues in the matter submitted to the arbitrator and only as to the parties to the arbitration. All matters concerning an arbitration proceeding are held in strict confidence.
    Return to top
     
  29. Am I able to request a deferment in Special Arbitration?
    • Yes, you may request a deferment in this forum. Per Rule 2-10, your request will automatically proceed to the hearing for the arbitrator (s) to rule on the validity of the request. If the request is upheld, the case will be deferred for one year. If denied, the arbitrator will continue to hear the disputed issues.
    Return to top
     
  30. Does Special Arbitration have an appeal process?
    • Decisions are final and binding to all parties, however, any party may appeal a decision wherein the Total Settlement amount is $100,000 or more (Rule 2-12). This appeal must be brought to AF's attention within 30 days from the date of the publication of the decision.
    Return to top
     
  31. Does Special Arbitration have provisions for product liability cases?
    • Rule 2-11 was added to require that reasonable accommodations be made for inspection of an alleged defective product, and failure to do so could result in withdrawal of the case if the failure is raised as critical to the defense.
    Return to top
     
  32. How are fees for Special different than for other forums?
    • All parties pay a fee, not just the filing company. The fee is per arbitrator, not per case. So, if one arbitrator hears the case, each party will pay the filing fee. If a party requests a three-person panel (see Question 24), each party will pay triple the filing fee.
    Return to top
     
  33. Can Special Arbitration be used for Construction Defect claims?
    • Once the claim is settled (per the definition of settlement) claims relating to construction defect exposures could be filed in Special as either of two of the three compulsory disputes. Contribution among co-defendants disputes could be used for recovery of all or part of a third party settlement from another negligent tortfeasor; concurrent coverage disputes could be used for recovery of all or part of loss or legal expense payments from another insurer who also provides coverage for the same insured.
    Return to top
     
  34. What kind of concurrent coverage issues would be filed in Special Arbitration?
    • The most common concurrent coverage issues that might be filed in Special would be time on risk issues, or additional insured issues. Time on risk would involve disputes that arise when two or more insurers provide coverage for the entity for different periods over which a construction project takes place. Additional insured issues would involve disputes that arise between general contractors and their subcontractors when the general is named as an additional insured under the subcontractor's policy.
    Return to top
     
  35. Why are all parties assessed the filing fee in Special Arbitration, unlike in the other forums where only the filing party is assessed the filing fee?
    • Special Arbitration provides for the disposition of inter-company disputes arising from the parties' responsibilities as insurers of codefendants or when they occupy the position of overlapping liability coverage insurers. In both instances, the parties share the responsibility to defend the claim or suit and benefit from the use of Special Arbitration to resolve the claim. The shared obligation of the filing fee is also intended to foster cooperation between the parties in settling the claim or suit and resolving the inter-company dispute in arbitration.
    Return to top
     
  36. We insure a rental car company. The renter of our insured vehicle was at fault for an auto accident and she has her own auto policy. In our state, the rental car company's policy is excess over any other applicable auto insurance. If the renter's auto policy is also excess, the loss is shared co-primary. If we are unable to negotiate settlement with the renter's auto insurer, is the dispute resolved in the Auto forum or Special forum?
    • If the filing company's argument will be that the responding company's coverage is primary, this would be a concurrent coverage dispute filed in Special Arbitration (Article First b). If the filing company is seeking recovery of their damages from the responding company due to renter's/driver's negligence or liability under the contract, this would be filed in the Auto Forum.
    Return to top
  37. We paid a claim under a PIP policy but believe there is concurrent coverage and want to pursue a portion or all of the PIP benefits paid. Do we file in PIP or Special Arbitration?
    • Concurrent coverage disputes under Article First (b) in Special are limited to those involving property or casualty insurance. PIP is obviously not property insurance and casualty insurance is an AF-defined term that specifies bodily injury, property damage, personal injury or advertising injury, as well as UM. It doesn't apply to PIP. Also the compulsory dispute in PIP is triggered by recovery rights which is defined to be much broader than subrogation, and specifically includes reimbursement and indemnity - which essentially describe contribution because of concurrent coverage. Based on the above, PIP is the appropriate forum to resolve this kind of dispute.
    Return to top
  38. Can a filing company recover a deductible paid by their insured in Special Arbitration as a part of a claim for contribution?
    • Yes. The amount of the deductible should be included in the Total Settlement Amount field which is the figure from which all awards for co-defendant or concurrent coverage contribution disputes are calculated. The amount of the deductible or the portion of the deductible for which recovery is sought should also be included in the Contribution Sought field.
    Return to top
  39. If my insured (Company 1) and another insured (Company 2) are in an accident and another "innocent" vehicle is damaged and the driver injured, when I file Special Arbitration to seek contribution from Company 2, do I file one case and include both the PD and BI payments? Or do I file two cases, one for the PD and one for the BI payment?
    • Rule 1-3 makes a claim based on a "claimant". Therefore, if the injured person and the owner of the vehicle are the same claimant, the BI and PD can be filed together (one filing). If the injured person and the owner of the vehicle are different entities (claimants), they need to be filed separately (two filings).
    Return to top