January 2021 E-Bulletin

This month's E-Bulletin topics include:

  1. A New Look for E-Subro Hub Coming This Year
  2. Auto and Special Agreement Changes Coming Later This Year
  3. Improved Cycle Time without Compromising Quality
  4. Managing Expectations: Post-Decision Inquiries
  5. Discontinued: Traffic Crash Reports and Overlay Forms Resource

A New Look for E-Subro Hub Coming This Year

Illustration of people around a monitor building a web pageWith a new year comes a new look for E-Subro Hub! Focused on maintaining continuity among our products, the E-Subro Hub interface will be redesigned to match the look and feel of Total Recovery Solution® (TRS®). AF is looking forward to improving the user experience for our members through this enhancement and will provide additional details in the coming months.
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Auto and Special Agreement Changes Coming Later This Year

Changes Coming in 2021Arbitration Forums, Inc. (AF)'s Board of Directors has approved changes to the Auto and Special Agreements. These changes would make the Auto forum the exclusive forum for automobile physical damage disputes, whether the disputed issue concerns negligence, damages, or concurrent coverage.

Through this change, AF aims to simplify forum selection and E-Subro Hub demand-to-arbitration transition for members by making the Automobile forum compulsory for all/any automobile physical damage disputes, including first party (subrogation), third-party settlement, and first- or third-party concurrent coverage. Special Arbitration would remain compulsory for disputes involving third-party BI settlements, non-automobile property damage contribution or concurrent coverage, and workers’ compensation subrogation.

Until this change becomes effective later this year, if these arbitrations are filed in Total Recovery Solution® (TRS®), they will be heard as long as the exclusion of Wrong Forum is waived or not asserted. This allows members to receive the cycle time and decision quality benefits of TRS before the agreement change occurs.

Please see below for the upcoming changes.

Article First: Auto and Special Agreements
Bolded text shows changes.

Auto
Signatory companies must forego litigation and arbitrate any personal, commercial, or self-insured automobile damage dispute to Arbitration Forums, Inc. (hereinafter referred to as AF) where:
(a) a subrogated insurer or self-insured seeks recovery from an at-fault party(ies); or
(b) upon settlement of a claim or suit, the liability of the respective parties must be determined; or
(c) each has issued separate policies of property or casualty insurance providing, or as a self-insured provides, concurrent coverage to the same party or parties asserted to cover an accident, occurrence, or event out of which a first- or third-party claim or suit for automobile damage arises.
Special
Upon settlement of a bodily injury or a non-automobile property damage claim or suit, signatory companies must submit any unresolved disputes to Arbitration Forums, Inc. (hereinafter referred to as AF) where:
(a) each has issued a policy of casualty insurance covering, or as a self-insured covers, one or more parties asserted to be legally liable for an accident, occurrence, or event out of which the claim or suit arises; or
(b) each has issued separate policies of property or casualty insurance providing, or as a self-insured provides, concurrent coverage to the same party or parties asserted to cover an accident, occurrence, or event out of which a first- or third-party claim or suit for bodily injury or property damage arises; or
(c) a workers’ compensation carrier or a self-insured seeks to recover reimbursement of workers’ compensation benefits from an alleged tortfeasor.
 
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Improved Cycle Time without Compromising Quality

Image of a compass with the arrow pointing to the word qualityThe later half of 2020 saw significant reductions in both case cycle time and Post-Decision Inquiry (PDI) response time. This helps ensure awards are promptly paid, and our members’ claims are closed as quickly as possible.

There is the perception by some, however, that quality has been sacrificed to improve these processes. That simply is not accurate.

Arbitrators take the same amount of time to hear a case. Rather, improved member arbitrator participation has greatly reduced the time the cases sit in the ready-to-hear queue.

Likewise, appropriate time is taken to review a PDI and correct a clerical or jurisdictional error. We simply added resources to help reduce the pending backlog. This has helped achieve a current average response time of four days.

AF is committed to providing our membership with efficient and effective subrogation and arbitration services.
 
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Managing Expectations: Post-Decision Inquiries

Image of a pencil with erasure marksIt was understood and accepted when intercompany arbitration was first created for and adopted by the insurance industry that errors would be made, either by Arbitration Forums, Inc. (AF) or an arbitrator. This is why the Agreements and Rules include provisions for AF to correct certain errors (i.e., clerical or jurisdictional).

Fortunately, for our membership, the number of errors has significantly declined over the years as we’ve moved from a totally paper-based process to a paper-less one. What has remained constant over the years, however, is what is not a clerical or jurisdictional error.

Disagreeing with a decision based on the belief the arbitrator misunderstood the facts or misread the evidence, or failed to comment on a specific piece of evidence, is not a correctible, clerical error. Per the various arbitration Agreements, a decision by an arbitrator is “final and binding without the right to rehearing or appeal.” This is true even if an error of fact or law were made.

Approximately, 38,000 post-decision inquiries were submitted in 2020. While that’s a significant number, it’s a low percentage when compared to the 850,000 disputes that will be resolved (4%). However, half of these inquiries will result in a final and binding response: no clerical or jurisdictional error was made.

Below are examples of clerical and jurisdictional errors:

Clerical Error – A mistake made by AF staff or the arbitrator(s). Examples of AF staff error include not providing proper notice of filing or not assigning a requested three-person panel. Arbitrator errors include mathematical errors; switching the parties when recording the liability decision; referencing the lack of or need for evidence that was, in fact, submitted; applying, on his/her own, a state regulation or statute from a state other than the loss state; or misapplying an AF Rule or procedure. It is at AF’s sole discretion to determine whether a correctible error was made.

Jurisdictional Error – Occurs when an arbitrator fails to rule on an Affirmative Defense/Exclusion; asserts an Affirmative Defense/Exclusion was not pled by a party; renders a decision on an issue not in dispute or over which arbitration lacks jurisdiction; or improperly dismisses a case for lack of jurisdiction where jurisdiction exists.

AF takes pride in providing exceptional service to our membership; however, time is valuable. Before you submit a post-decision inquiry on a decision, please make sure your concern is truly correctible. We thank you for your continued dedication to our products and services.
 
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Discontinued: Traffic Crash Reports and Overlay Forms Resource

Image of a red banner with the word discontinued in itThe Traffic Crash Reports and Overlay Forms resource has been discontinued by the source. The link has been removed from the Arbitrator Resources page on our website. 
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