other across an aisle parking lot or two
cars side-swiping each other on the freeway. Or is it a claim where the facts are
very much in dispute between the parties,
such as a claim where the asserted tort-feasor turned left at the intersection on a
changing light or swerved around a truck
backing up in the middle of the road.
Next, identify all possible scenarios including position of the vehicles, points of
impact, speed, conditions and the negligence laws applicable to the fact pattern.
From there the theory begins to take
shape around how the accident occurred
and an all-important theme develops that
will be used to traverse the entirety of
the storyline presented to the arbitrator.
Given the dynamic that the facts of the
loss are not in dispute, the question becomes: Will we be asking for 100 percent
recovery in arbitration or taking a more
reasonable tone toward comparative negligence and perhaps seeking 75 percent?
Why are the defined dynamics for facts
of the loss important? It involves what one
must prove to the arbitrator within the
confines of the case presentation. If there
is no dispute that both vehicles were backing up; that is one less element of the case
you have to support. If there is a dispute
as to the color of the light when the driver
turned left; then this is clearly an element
of the case you need to be ready to prove.
Fundamental arbitration advocacy
says to work within the evidence, knowing what is clearly in dispute and what is
not. This establishes the foundation of the
core issues on which the arbitrator must
rule and the key turning points on which
he or she must decide. Core issues in arbitration are things like liability, damages
or a noted discrepancy in a police report.
Turning points are items such as the light
was yellow or red when the driver turned
left or the insured had already backed
out of the parking space and was actually moving forward when hit by the other
driver in the lot.
When writing contentions in an inter-
company arbitration case, consider using
the following questions as a template:
What is the core issue for the arbitrator
to rule on in this case? What is the key
critical turning point on which the arbi-
trator must decide? This helps establish in
the arbitrator’s mind a rolling hypothesis
about what the claim dispute entails and
what the parties’ intentions are likely to
be towards proof.
How does one leverage evidence to succeed in challenging the auto liability case?
The decision to pursue recovery may have
been made if the adverse party initiates
an arbitration filing. Assuming there are
damages to recover; it would be wise to
answer that case and file as counter applicant. If your team is going second, read
the adverse party’s contentions and look
for unsupported assertions while scrutinizing their declared evidence list.
Intercompany arbitration works on
a preponderance of evidence standard,
so it is important to convey a more than
likely scenario for the fact pattern present
to the arbiter while meeting the prima
facie burden in order to succeed. Filing
the counterclaim provides a window into
the adverse party’s world. Claims professionals who process a good deal of intercompany arbitration cases develop an
innate ability to breakdown the adverse
party’s contentions; look for what is said
and not said, and tabulate what is missing from the adverse party’s narrative and
evidence. They then use their instinctive
skill set to transition the arbitrator away
from the opposing party’s portrayal and
toward their own via their contentions.
Parties may not pursue subrogation or
arbitration because they believe the fact
pattern and evidence are insufficient to
induce a settlement or be successful in
arbitration. The problem with that logic
is not knowing what evidence (or lack
thereof) the adverse party has.
Under the Rules of Arbitration, a good
faith effort must be made to attempt to
settle a claim before filing subrogation ar-
bitration (Condition Precedent), so some
form of a demand is forthcoming. The
question is do parties fully exchange all
available proofs in that effort to settle or
are some held back and put forth once
the case goes before an arbitrator? One
may be able to prevail in intercompany
arbitration even with a tough or marginal
case based on the preponderance stan-
dard and the weight of the evidence in
your favor since the arbiter evaluates both
parties’ proofs. Keep in mind the expla-
nation for the way the accident occurred
does have to be the only explanation for
what happened, it simply has to be the
more logical of any offered.
Lastly, how you construct the challenging liability case can also have an impact
on whether the intercompany arbitrator accepts your theory. Develop a well
thought out narrative that incorporates
demonstrative exhibits; things like scene
photos and diagrams (to show what occurred), compliment that with direct evidence (that maintains the theme) of what
parties actually said at the scene or when
giving a statement.
Mix in documentary supports like police reports or adjusters’ notes to validate
the theory. Consider adding in some circumstantial evidence (like skid marks or
the adverse driver’s actions at the scene
that may infer fault), since arbitrators
frequently draw inferences in their decision-making.
Recovering a company’s dollars on a
tough auto liability case need not be so arduous if one establishes the defined dynamics; appreciates the preponderance standard
inherent in arbitration, and strategically
leverages evidence to construct a narrative
that is persuasive and impactful.
Kevin Pike ( firstname.lastname@example.org)
is with arbitration client services at
Claims Resource Services, one of the
nation’s top five firms filing intercompany
arbitration cases. His background
encompasses 30 years in arbitration
and the dispute resolution field, and he
writes a weekly blog on intercompany
arbitration disseminated throughout the