December 2019 E-Bulletin

This month's E-Bulletin topics include:

  1. AF Reduces Fees in 2020
  2. Revisions to AF Agreements
  3. Non-signatories and TRS
  4. Effective Evidence Linking
  5. Counterclaims: A Revisit of Rule 2-2
  6. Disputed Damages and Rule 2-5 in TRS
  7. Reminder: System Maintenance, February 2020

AF Reduces Fees in 2020

Image of letter blocks spelling out the word feesArbitration Forums, Inc. (AF) is pleased to announce additional changes to our fee structure, providing our members with even more cost-effective services. In addition to a five dollar reduction to filing fees, AF will continue to provide the use of E-Subro Hub at no charge.

These changes will go into effect on January 1, 2020.

AF is dedicated to ensuring you, our members, are at the center of everything we do. We appreciate your continued participation in AF’s programs.
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Revisions to AF Agreements

Image of someone signing a piece of paperUpdates to Article Fifth and Sixth of the AF Agreements have been made to include arbitrator participation. These changes will become effective March 1, 2020.

Article Fifth – AF’s Function and Authority
  • (c) determine qualification criteria, provide for the selection and appointment of arbitrators, and establish arbitrator participation requirements for the signatory companies;
Article Sixth – Arbitrator Participation
  • Signatory companies agree to provide qualified arbitrators from among full-time employees, and hear as many cases as they file.
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Non-signatories and TRS

Image of a bull-horn with a bubble that reads What's NewOn December 16, AF added the ability for a signatory to file against a non-signatory or vice versa in TRS, including scenarios in which the non-signatory consents to arbitrate or the loss state mandates the use of intercompany arbitration through AF.

is now available to view on the TRS Resources page

If you are filing as or against a non-signatory, please contact the Member Service Center at 1-866-977-3434 for instructions. 
 
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Effective Evidence Linking

Arbitration filers and responders are aware of the concept of linking evidence. This is where a party directs the arbitrator to specific evidence that supports an allegation. See the example below.
Screenshot of the Liability Arguments tab

The “Insert Evidence Attachment” option in Total Recovery Solution® (TRS®) offers additional flexibility for a party to embed a link to an evidence item. Embedding the link will require the arbitrator to comment on that specific evidence item. Note: The arbitrator will always provide his or her decision justification, commenting on the evidence that was influential to his or her decision, even if the “Insert Evidence Attachment” option is not used. As such, the “Insert Evidence Attachment” functionality should be used as needed. For example, if arbitrators routinely comment on police reports or driver statements, you may not need to use the “Insert Evidence Attachment” for these evidence types.
Screenshot of the Liability Arguments tab with an evidence attachment highlighted
 
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Counterclaims: A Revisit of Rule 2-2

Image of a gavel and a law book on a tableFamiliarizing yourself with the Arbitration Forums, Inc. Rules is not only important in regard to saving you valuable time when submitting cases, but also ensures you collect the right amount of money owed to your organization.

Let’s examine Rule 2-2. As an Adverse Party responding to a case, you are required to add your damages at the same time you enter your response to the Recovering Party’s case.
 
Simply enter “Yes” to the My Damages section to enter your counterclaim. 
Image of the My Damages tab

If you work for a company that outsources the handling of counterclaims (TPA’s, subrogation, or other departments), ensure the response section is completed first, and then select Exit Workflow
 Image of the exit workflow option

Do not submit the case, as you will not be permitted to go back and add the counterclaim later.  Instead, contact the TPA, or other department assigned to handle the counterclaim, and have them add the company damages. Once all aspects of the case are finished, select Submit
 
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Disputed Damages and Rule 2-5 in TRS

The Arbitration Forums, Inc. Rules (effective October 1, 2019) includes updates that support TRS as the exclusive platform for Auto cases. 

Rule 2-5 specifies: “For new Auto filings, damages must be disputed where provided.” In TRS, “where provided” is the Feature Response workflow step.
Screenshot of the feature response
 
We are sharing the following scenarios to help you better understand Rule 2-5 in TRS. 

Scenario 1
The Filer sought $7,020.64 in Auto Damage. The Responder disputed Auto Damage, entered the Proposed Amount of $6,422.23, and argued LKQ parts should have been used because the vehicle was six years old. 
Screenshot of the justification
                            
Did the Responder meet the terms of Rule 2-5 in TRS? 

Yes. The Responder disputed the correct Damage Type in the Feature Response, included its Proposed Amount, and presented its Justification regarding vehicle age and appropriate comparable parts. The difference between the amount sought and amount owed can be easily calculated. The fact that the Responder did not provide specific dollar amounts for each part should not preclude the dispute from being heard. Whether or not the reduction is proven will depend on the Responder’s evidence.
 
The help text for the Responder in TRS clarifies what is required: “Each itemized damage item can be disputed. Once the dispute option has been chosen, the damage item will expand, allowing you to enter the required information: Proposed Amount, the Justification, and the Dispute Type(s).” 
NOTE: If the Responder proves all of its reductions for parts costs, it might be sufficient to dispute parts with a single reduction (i.e., $300 total for three parts). However, if the arbitrator decides that the Responder proved only some of the parts reductions, and the Responder did not provide individual pricing, it may be appropriate to deny the damage dispute, noting that a reduction could not be given because the Responder did not provide the necessary individual pricing to calculate the reduction accurately.   

Scenario 2 
The filer submitted total loss damages, and partially itemized its damages by lumping the storage in with the salvage figure (see illustration). As a result, the Responder did not have the opportunity to choose Storage as a disputed item. With no alternative, the Responder disputed Valuation noting its storage challenge. 
Screenshot of the company-paid damages

Did the Responder meet the terms of Rule 2-5 in TRS? 

Yes. It is the responsibility of the filer to enter its damages accurately. The arbitrator has discretion whether or not to consider the amount the filer entered improperly as part of its subrogation claim. Per the current Reference Guide to Arbitration Forums, Inc. Agreements and Rules: “If the responding company disputes the damages claimed, it must clearly outline its position where provided, and note the amount that it feels is owed.” When the type of damage is not specifically named by the filer, the Responder does not have the opportunity to enter the dispute where it is provided in TRS, and the Responder is then allowed to raise the dispute in a different portion of its damage dispute.

Scenario 3
The filer sought $2,750.00 in Auto Damage and $300 in Rental. The Responder entered a challenge under the Auto Damage only as follows:“We challenge $250.00 of the Auto Damage as unrelated and $100.00 of the rental as unnecessary.” The Rental area did not include a challenge by the Responder. 
 Screenshot showing the damages sought
Screenshot with the amount challenged highlighted
                     
Did the Responder meet the terms of Rule 2-5 in TRS?

Yes and No. The challenge to the Auto Damage is acceptable, but the challenge to Rental is not. The disputed Rental should have been entered in the Rental field.

As a neutral evaluator, the arbitrator should approach each damage dispute by giving it every consideration possible. A dismissal of a damage dispute based on Rule 2-5 in TRS should be rare because TRS has been designed to support the clear articulation of damage challenges, with the Proposed Amount field, the ability to dispute damages by item, and the ability to link/embed supporting evidence into the damage arguments.  

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Reminder: System Maintenance, February 2020

Illustration of gears over an update barAF is scheduled to perform system maintenance and upgrades from February 14-16, 2020. As a result, AF’s website will be unavailable from 9 PM Eastern on Friday, February 14, 2020, to 6 PM Eastern on Sunday, February 16, 2020.

We apologize for any inconvenience this may cause our members. AF is committed to continuously enhancing our products and services. We thank you for your continued support.
 
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