Alerting the Arbitrator -Properly Citing Local Statute Delivers Successful Outcomes
by Dawn Reckmeyer CSRP
As a Sr. Recovery Specialist, handling a caseload of auto, property and workers' comp subrogation claims I have enjoyed the opportunity to become familiar with many different statutes governing rights of recovery across the country, for multiple lines of business. Understanding the nuances of various negligence rules and state specific statutes definitely requires that Recovery Specialists be prepared to negotiate settlements on subrogation claims, as well as be ready to arbitrate. However, even the best prepared cases can reach impasse during settlement discussions and arbitration is generally the best and most cost effective means to a recovery.
When preparing a claim for arbitration I have found that citing specific statutes relevant to the facts and the jurisdiction where the loss occurred often proves to be invaluable. Well-written and clear contentions backed up with relevant statutes assist the Arbitrator, who may not be well-versed in various statutes render a well-informed decision. A very interesting claim arising from an automobile accident which occurred in New York involving four injured parties riding in the insured's van proved this to be true.
The van, registered and insured as a private passenger vehicle, was struck in the rear by the adverse vehicle. Due to some inconsistencies during the loss adjustment process Examinations Under Oath (EUO) were conducted of the four injured parties. During the EUO testimonies, all of the injured parties claimed to have paid for transportation. Based on this testimony that the insured vehicle was being used as a livery vehicle a Loss Transfer Demand Package was sent to the Adverse Carrier. Upon receipt, the adverse carrier denied our subro claim citing the insured's vehicle was registered as a private passenger vehicle and not a commercial vehicle hence in their opinion Loss Transfer did not apply.
In New York, PIP Loss Transfer is permissible by statute under Regulation 68, but certain conditions apply pertaining to the weight and the use of the vehicles involved in the accident. As such, when drafting the Arbitration contentions in addition to arguing 100% liability against the adverse party I also argued that according to "N.Y. Ins.ยง 5104 PIP Loss Transfer applies if (a) at least one vehicle weighs more than 6,500 lbs. or (b) ONE VEHICLE IS USED FOR TRANSPORTATION OF PERSON OR PROPERTY FOR HIRE (LIVERY)," Thereby alerting the Arbitrator to the fact the statute does not state the vehicle has to be registered or insured as a commercial vehicle, but rather simply used as one.
The cases were heard and the Arbitrator awarded 100% of our damages for various amounts for each injured claimant passenger totaled $116,378. The Arbitrator agreed with our contentions stating "Based on the EUO submitted by the applicant which shows that the applicant vehicle was being used as livery; Loss Transfer does apply. The statute specifically states Loss Transfer applies when one vehicle is used for transportation of person or property for hire (livery). The liability solely rests with the respondent as the points of impact indicated on the police report, demonstrate rear-end collision."
Understanding the nuances of a statute and properly citing them when drafting arbitration contentions alerts the Arbitrator which can lead to a successful recovery and satisfaction for the Recovery Specialist!
