March 2022 E-Bulletin

This month's E-Bulletin topics include:

  1. Concurrent Coverage Disputes in TRS
  2. California Joint & Several – Prop 51. What Does It Mean?
  3. Job Aids for Adverse Parties!
  4. May System Maintenance

Concurrent Coverage Disputes in TRS

TRS was designed to support the resolution of concurrent coverage disputes separately from negligence disputes. The Recovering party chooses the right of recovery on which its filing is based. Each right of recovery can be pursued, but must be done separately. The following examples clarify how these independent rights of recovery may play out in arbitration: 
  • A Recovering party does not prevail on a concurrent coverage right of recovery, and then files to recover from a different party under a negligence right of recovery.
  • A rental company files a concurrent coverage dispute against the renter’s insurer at the same time another involved party files a negligence dispute also against the insurer’s renter. 
When responding to a case, please note the right of recovery and respond accordingly. If the filing concerns concurrent coverage, do not add parties believed to be negligent. The sole issue to be decided in the filing is concurrent coverage. 

If the Recovering party selects the incorrect right of recovery, a jurisdictional exclusion may be raised, or, a request to disqualify the case may be submitted. The Recovering party can then re-file under the correct right of recovery.

Recovering party view

Adverse party view
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California Joint & Several – Prop 51. What Does It Mean?

California Joint & Several – Prop 51 can best be described as the concept of holding an innocent party harmless when there are multiple tortfeasors. 

A California Supreme Court decision in 2020 stated that while California’s Proposition 51 (Civil Code section 1431.2) states that all defendants are jointly liable for damages, “each defendant shall be liable only for…non-economic damages…in direct proportion to that defendant’s percentage of fault.” What this means is each tortfeasor is severally liable for the innocent party’s non-economic damages proportional to their liability for the loss, but jointly liable for the innocent party’s economic damages, no matter their portion of liability so long as there is some liability on all of the tortfeasors. 

To know how to apply California Joint & Several – Prop 51 correctly, first we must understand what economic damages and non-economic damages are. Economic damages are damages incurred to which a dollar amount can be definitively attached. Economic or “monetary” damages include, but are not limited to, medical bills, property damage (i.e., vehicle damage, rental, etc.), loss of income, and the like. Non-economic damages are damages that do not necessarily involve out-of-pocket money or expenses. Non-economic damages would include, but are not limited to, pain and suffering, emotional distress, inconvenience, etc. 
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Job Aids for Adverse Parties!

Need help with Prior Payments and Additional Exposures? Our job aids provide step-by-step instructions, quick tips, and do’s and don’ts.

Here are few things to keep in mind when entering Prior Payments
  • Per Rule 2-5, prior payments must be entered in the “Add Prior Payment Made” field for the credit to be applied to the award. If you enter payments in other fields, such as liability arguments, damage disputes or additional exposures, the payment will not be reduced from the award.
  • Do attach evidence supporting that a payment was cashed/cleared. Otherwise, a credit will not be applied.
  • Do not enter payments for out-of-pocket expenses or damages NOT sought in the filing (i.e., out of pocket rental or contents in the vehicle). These damages would be entered as an additional exposure if policy limits are at risk.
View for Entering Prior Payments

A few things to keep in mind when entering Additional Exposures
  • Additional Exposures are parties with damages that an Adverse Party may be legally liable to pay and are not named in the current case.
  • If policy limits are NOT at risk, do not enter additional exposures to the arbitration case.
  • Do not add additional exposures for parties named in the current filing (i.e., the Recovering Party).
  • Do attach evidence supporting the additional exposure (i.e., police report or recorded statement verifying an exposure exists). 
View for Additional Exposures
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May System Maintenance

The system maintenance that Arbitration Forums, Inc. (AF) was originally scheduled to perform in March has been rescheduled to May 13-16. As a result, AF’s website will be unavailable from 9:00 p.m. ET on Friday, May 13, 2022, through 5 AM ET on Monday, May 16, 2022

We apologize for any inconvenience this may cause your organization and appreciate your continued support as we work to enhance our products and services.
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