Damages: What Proof Is Required?
In arbitration, there are no default judgments. If the Respondent fails to answer an arbitration filing, the Applicant does not automatically win. This is because the Applicant has the burden of presenting a prima facie case, proving both liability and damages, notwithstanding any rebuttal by the Respondent.
What constitutes the requirement that the Applicant prove damages? Depending on which damages we're referring to, the answer changes. For rental, it would be the rental bill, showing the number of days and the daily rate. Towing is the same, a towing bill, showing mileage and the date of tow. Storage follows suit, requiring a bill from the storage facility with a daily rate and the number of days of storage. Vehicular damage doesn't typically result in a final bill; the estimate plus any supplements is considered proof of the damages. Some members consider proof of payment as a requirement as well as photos. Remember, many of our members are self-insured and would not cut a check for the repair of one of their vehicles as they make the repairs themselves. Photos of the damage are customary and common; however, photos by themselves do not prove damages, as there is no breakdown of parts, labor hours, and final cost that the estimate contains.
There are instances wherein damage photos and proof of payment are important pieces of evidence though. In cases where the damages are being disputed, the Applicant may turn to photos or proof of payment to rebut the Respondent's allegations and offer proof of the validity of its damages. In the absence of a damage dispute, proof of payment and damage photos are not required evidence items to prove damages. As the Guide for Arbitrators states on Page 24, "An arbitrator may not rule against the Filer on the issue of damage solely because no proof of payment has been included; it is only necessary to show proof of damages (e.g., estimate, repair bill, medical bill)." This also holds true for damage photos.
Article published in: November 2015 E-Bulletin