August 2020 E-Bulletin

This month's E-Bulletin topics include:

  1. E-Subro Hub and Total Recovery Solution (TRS) Working Together for an Improved Member Experience
  2. Decision Quality? Members Say Yes!
  3. Reminder: Review Responding Party’s Company Name when Filing Cases
  4. Concurrent Coverage: Supporting Policy Limits
  5. How to Create a Post-Decision Inquiry (PDI) in TRS
  6. Video Evidence – What It Is and Isn't
  7. AF Transitioning to New Member Management Application This September
  8. System Maintenance, October 2020

E-Subro Hub and Total Recovery Solution (TRS) Working Together for an Improved Member Experience

Image of screen with icons on itAs responders, adding counterclaims is essential to a company’s bottom line. It allows the insurance industry to recoup a portion of the money paid during the claims process.

Arbitration Forums, Inc. (AF) is making this process easier through data migration. When a responder adds damages in TRS, they are obligated to complete the entire workflow. This takes time and effort. However, if they issued a demand in E-Subro Hub, they can simply forward it into TRS. This action flags the demand and all the information entered will migrate into the counter damages section of TRS, saving the responder valuable time.
 
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Decision Quality? Members Say Yes!

Image of a compass pointing to the word ExcellenceResults from our Member Decision Review process continue to be strong, with close to 95% of decisions being reasonable and clearly explained.

Thirty member reviewers from twenty one companies participate in the quarterly review process and share feedback on recent decisions. The feedback is specific to whether the decision was reasonable and clearly explained (what evidence was influential and why).

The feedback is completely objective. The reviewer’s company is not a party to the case they review, and the arbitrator’s name is omitted; the decision reviewed could have been made by an arbitrator from their own company.

Results are shared with the participating companies (overall, as well as for its individual arbitrators who had a decision reviewed), and any improvement opportunities are shared with individual arbitrators.

Additionally, TRS allows for self-reviews where members review decisions by their own arbitrators to ensure their own quality.

If your company would like to participate in the quarterly decision review process, or is interested in the self-review, please contact Tim McKernan, tmckerna@arbfile.org.
 
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Reminder: Review Responding Party’s Company Name when Filing Cases

Image of a string tied around a fingerWe’ve recently received feedback from members being added to cases in error due to their company name being similar to the actual responding company’s name. Naming the incorrect responder can create added work for filers, including needing to refile and incur a new filing fee. These errors can also cause delays in having cases heard.

To promote time saving for both parties, we encourage filers to carefully review the spelling and company code when entering a responding company to a case.

As a reminder, the TRS Guide for Filers provides a step-by-step view on filing a case, including how to better define results when selecting an adverse party (Page 11). 
 
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Concurrent Coverage: Supporting Policy Limits

Illustration of a clipboard with an insurance policy on itConcurrent coverage disputes offer some interesting challenges for an arbitrator. There are a number of scenarios under which proof of policy limits is required for an arbitrator to make a proper decision in a concurrent coverage case. Without support for the policy limit, the arbitrator may be forced to make an award for all damages proven, or none at all, where a pro-rata apportionment might otherwise be appropriate. 

Here are some examples:
  • In our first case, a filer (Alpha) attempts to recover damages for a third party that was in an accident with the vehicle that Alpha insures while being driven by the responder’s (Beta) named insured. Alpha asserts that the two policies have mutually repugnant other insurance clauses, so pro-rata apportionment of the damages would apply. The arbitrator agrees that pro-rata apportionment among Alpha’s and Beta’s policies is proper. Alpha does not present evidence of their policy limit, preventing the arbitrator from making a pro-rata calculation for an award. In this case, Alpha has failed to provide sufficient support for the pro-rata apportionment, and the arbitrator is forced to make a $0 award.
  • In the second example, Alpha files for contribution to third-party damages from Beta as Beta’s insured was in an accident while driving Alpha’s vehicle, as in the previous example. Alpha asserts that Beta is primary. Beta claims that the policies should share the damages on a pro-rata basis. Alpha proved all the damages, but Beta did not provide their own policy limits in evidence. The arbitrator agrees that the policies dictate pro-rata sharing, but is forced to make a full award in favor of Alpha for all damages as Beta did not provide sufficient evidence to support the pro-rata sharing percentages.
It is worth noting that there may be an inclination to turn to Rule 3-9 for a post-decision inquiry in such cases to show the policy limit after the fact. However, under Rule 3-9, there would be no relief for the scenarios, above. Example three, below, offers a look at one instance in which Rule 3-9 would offer a change to an award:
  • Alpha files for recovery of third party damages arising out of an accident in which their insured was driving a vehicle insured by Beta. Alpha agrees to accept policy limits, and argues that Beta is either the primary liability carrier, or else, that the policies should share the damages pro-rata as Alpha has not seen Beta’s policy language. Beta asserts that they have excess coverage for the Alpha-named insured, only. The damages are $7500.00. The arbitrator finds that the coverage would apply on a pro-rata basis, but awards the full amount as Beta did not offer support for their policy limit and so pro-rata apportionment could not be supported. Beta files a post decision inquiry under Rule 3-9 with support that they only have $5,000 policy limits. The award is then reduced to the policy limit.
These are only some of the examples of cases in which a pro-rata coverage finding is a likely outcome. It is critical that the parties produce proof of their policy limits in matters of concurrent coverage to equip the arbitrator with the support he or she will need to make the most accurate decision concerning the apportionment of damages.
 
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How to Create a Post-Decision Inquiry (PDI) in TRS

Parties to arbitration can file a potential clerical or jurisdictional error with AF, known as a Post-Decision Inquiry (PDI), within 30 days of the decision publication. These potential errors are filed directly from the case

To file a PDI, follow the navigation below:

Screenshot of TRS with step 1 highlighted

Screenshot of TRS with step 2 highlighted

Screenshot of TRS with step 3 highlighted

Screenshot of TRS with step 4 highlighted

How do you know if you have a potential clerical or jurisdictional error? If the issue is a matter of the arbitrator’s interpretation of fact or law, it is not a clerical or jurisdictional error, and AF cannot take any action toward a possible change in the decision outcome. For more details about clerical and jurisdictional errors, please read the definition of these terms on Pages 9 and 10 of AF Rules.
 
A PDI can also be filed for the following reasons: 
  • To assert a coverage or policy limits defense (Rule 3-9), 
  • To assert the condition precedent was not met (Preamble AF Rules, Page 1), 
  • To file an appeal in Property or Special (Rule 2-12), or
  • To follow the second step listed in regarding unpaid awards (Rule 5-2).
What to Expect after a PDI is Filed

A badge will appear on the Case Overview to advise the parties that a PDI has been filed: 

Screenshot of TRS with the Decision Actions highlighted

An email notification will be sent: 

Screenshot of a sample notification email

Please allow time for review and resolution of the PDI before contacting AF for status. The average turnaround time to process a PDI is 30 to 45 days, and you will receive an email regarding the outcome. Please see discussion of Rule 3-9 in the Reference Guide to AF Rules and Agreements, on Pages 58 and 59. 
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Video Evidence – What It Is and Isn't

Image of a dashcam on a windshieldThe ability to upload and submit video evidence has been widely applauded by our membership, as it eliminates the need to schedule a date and time for a video conference to show the video to the arbitrator.

In a few cases, however, we have seen non-video evidence submitted as video evidence. Some recent examples include a video of an audio cassette player playing a recorded statement and a video playing a voice message left by an insured.

To clarify, examples of appropriate video evidence include the following: 
  • Dash-cam video of an accident
  • Security video showing an accident
  • Video of an accident scene. 
In short, video evidence is something for the arbitrator to watch, not listen to.
In the case of evidence that is truly audio evidence (such as recorded statements or audio recordings), AF requires the written transcript of the recording be provided as evidence for the arbitrator to read. These items are not acceptable as video evidence and will not be considered by the arbitrator.
 
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AF Transitioning to New Member Management Application This September

Illustration of people working on a computer monitorAs announced in the April E-Bulletin and further communicated in the July E-Bulletin for Security Administrators, AF will be transitioning to the new Member Management application in order to continue to provide optimal security and an enhanced selection of features for our users.

The current user maintenance application will be decommissioned September 19, 2020. Users are encouraged to begin the transition to the new member management application as soon as possible to limit any workflow impacts. 

Member Management includes several upgraded, easy-to-use features compared to previous user management tools.
  • The new application provides an enhanced UI, including a comprehensive interface to modify users and create passwords.
  • Users can be searched simply by typing the person’s first name, last name, email, or login ID. There is also advanced search functionality, which enables searching by many different fields such as business unit and administrators only.
  • The privileges assigned to a user show you which privilege group gave that user that privilege and which ones are directly assigned. 
  • Administrators will also be able to select multiple users to make changes to more than one user at a time. 
For more information, please view the guide available on our website.
 
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System Maintenance, October 2020

Image of a miniature toolbox on top of a laptop keyboardAF is scheduled to perform system maintenance. As a result, AF’s website will be unavailable from 9 PM Eastern on Friday, October 2, 2020, to 10 AM Eastern on Saturday, October 3, 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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