Current Arbitration Procedures in the United States in the Insurance and Reinsurance Industry

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1 in the Insurance and Reinsurance Industry Larry P. Schiffer LeBoeuf, Lamb, Greene & MacRae, L.L.P. 125 West 55 th Street New York, New York Biography Larry P. Schiffer is a partner in the New York office of LeBoeuf, Lamb, Greene & MacRae, L.L.P. He is a member of the American Bar Association's Tort Trial & Insurance Practice Section, where he was Chair of the Excess, Reinsurance & Surplus Lines. He is Chair of the New York State Bar Association Committee on Association Insurance Programs, a member of the Federation of Defense and Corporate Counsel, where he serves as a Vice Chair of its Reinsurance, Excess and Surplus Lines Section, and is Chair of the ARIAS U.S. Technology Committee. Mr. Schiffer received his J.D. from Albany Law School of Union University, where he graduated cum laude, was a member of the Albany Law Review and a member of the Justinian Society, and received his B.A. magna cum laude from Brooklyn College of the City University of New York. He was admitted to practice in New York in Mr. Schiffer practices in the areas of commercial, insurance, and reinsurance litigation, arbitration, and mediation. He also serves as a mediator for the mandatory commercial mediation program of the United States District Court for the Southern District of New York, and for the New York Supreme Court Commercial Division, Alternative Dispute Resolution Program. Page 1

2 Introduction to Arbitration Procedures in the United States Arbitration is a quasi-judicial process in which the parties submit a dispute to a third party or parties for decision. It is the best known and most widely used dispute resolution alternative to litigation. Indeed, it has become increasingly popular in the insurance industry. Arbitration clauses now regularly appear in many insurance policies. In the United States, the arbitrator (typically one person or a panel of three) is chosen by the parties. Although an arbitrator's decision is usually binding, the parties can agree in advance to a nonbinding decision or to allow for an appeal of the arbitration award to a court under certain limited circumstances. Parties can provide by contract for arbitration of future disputes or can agree to arbitrate after a dispute has arisen. The parties to an arbitration select the time and place of hearing, and may devise their own rules of procedure or adopt the rules of one of a plethora of private organizations both in the United States and abroad that administer national and transnational arbitrations. For example, the American Arbitration Association ("AAA") has promulgated Commercial Arbitration Rules and Mediation Procedures, and Supplementary Procedures for the Resolution of Intra-Industry U.S. Reinsurance and Insurance Disputes. Confidentiality is one of the hallmarks of arbitration. The rules of evidence that govern court proceedings normally are not applicable in arbitrations. Theoretically, discovery is usually not available, although the parties may, and often do, by agreement or custom and practice, provide for both discovery and the applicability of selected evidentiary or procedural rules. In most jurisdictions, arbitral awards are enforceable by the courts and are not appealable, except under limited circumstances. J. Oshinsky, T. Howard, Practitioner's Guide to Litigating Insurance Coverage Actions, Ch. 10, Alternatives to Litigation, (2d ed.). In the United States, the Federal Arbitration Act ("FAA") provides the statutory mechanism for enforcing arbitration agreements. While nearly every state has its own arbitration statute, which may be relevant in certain circumstances, the FAA will likely apply to most insurance disputes because most insurance contracts involve some aspect of interstate commerce, thereby invoking the FAA. The FAA was designed by Congress to overrule the judiciary's long-standing refusal to enforce agreements to arbitrate, and to place arbitration agreements upon the same footing as other commercial contracts. The FAA simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms. Under the FAA, United States federal courts are required to enforce agreements to arbitrate in all cases Page 2

3 where it is agreed and where an independent basis for jurisdiction exists. The FAA itself does not provide independent federal jurisdiction. State courts also are required by the FAA to enforce arbitration agreements if the underlying transaction involved interstate commerce. Most insurance-related arbitrations take place under the administration of a private dispute resolution organization, except for reinsurance disputes. Typically, arbitration clauses in insurance contracts, other than reinsurance agreements, will specifically invoke a set of rules or agree to arbitration administered by a specific organization. In this article, we briefly explore current arbitration procedures between insurance companies and their insureds, inter-insurer arbitration, and reinsurance arbitration. Arbitration Between Insurers and Insureds As stated above, arbitration clauses are becoming more common in contracts between insurers and their insureds. In one area, no-fault automobile insurance, arbitration has a longstanding history of being the preferred dispute resolution method. No-fault automobile insurance arbitration has a long tradition in the United States. Today, twenty-three states including New York, the District of Columbia, and Puerto Rico have some form of auto no-fault statute in force. No-fault auto insurance systems were developed to keep auto insurance costs low by keeping small claims out of the courts. Each insurance company compensates its own policyholders for the cost of minor injuries regardless of who was at fault in the accident. These socalled "first-party" benefits, which are a mandatory coverage, vary from state to state. In New York, a policyholder is eligible to receive compensation for medical fees, lost wages, funeral costs and other out-ofpocket expenses without having to prove the fault of the other driver. This type of coverage is referred to as "Personal Injury Protection"(PIP) coverage. Many no-fault insurance statutes include provisions mandating arbitration of claims, at least under certain circumstances. Under some statutory schemes, arbitration is at the option of the insured, but mandatory for the insurer. In addition, arbitration may be mandated where one no-fault carrier seeks to recover from another no-fault carrier, or where a workers' compensation carrier attempts to recover from a no-fault insurer. Under some statutes, arbitration is available to the insurer that pays benefits and is seeking reimbursement. The AAA has published the Rules for Arbitration of No-Fault Disputes in the State of New York and Page 3

4 has handled no-fault arbitrations in New York and other states for many years. Upon receipt of a New York Motor Vehicle No-Fault Insurance Law Arbitration Request, the AAA will attempt to resolve the dispute by conciliation pursuant to New York Insurance Department Regulation, 11 N.Y. Code, Rules & Reg (b)(2)(iii). If the dispute cannot be resolved by conciliation, the case will be forwarded to arbitration. According to the AAA, most of the cases in arbitration are brought by health service providers who have been assigned the no-fault benefits by the injured person. Cases brought directly by the injured person, rather than by a health service provider, constituted 2% of the filings in As arbitration has become more prevalent in insurance contracts, United States courts have had to address a variety of issues concerning arbitration rights between insurers and insureds. For example, in Rankin v. Allstate Insurance Co., 336 F.3d 8 (1 st Cir. 2003), the court was asked to decide whether an insurance company totally breached its indemnity obligations to its customer and was thus barred from relying on any provisions of the contract, including the arbitration clause. After articulating the question, the court treated it as one of waiver. Finding prejudicial delay in invoking the right to arbitration, the court held that the right had been forfeited by the insurer and that the matter should continue to proceed in court. In the bankruptcy context, the Fifth Circuit has held that a bankruptcy court has discretion to refuse to order arbitration of disputes under contracts with the debtor where (i) the predominant relief sought was based upon the avoidance power of the debtor cognizable only in bankruptcy and was thus a core proceeding, and (ii) enforcement of the arbitration agreement would conflict with the Bankruptcy Code. In re Gandy, 299 F.3d 489 (5 th Cir. July 22, 2002), as revised (Aug. 2, 2002). One recent area of controversy has been class arbitrations against financial services companies. In Green Tree Financial Corp. - Alabama v. Randolph, 531 U.S. 79 (2000), the United States Supreme Court rejected a consumer's argument that the agreement under which the consumer had agreed to arbitrate all claims against a financial services company should not be enforced because arbitration of the consumer's small claim would be too expensive. The Court held that the consumer had not established that arbitration would be wholly impracticable, and indicated that "unconscionability" would rarely be accepted as a basis to allow economically weaker parties to escape their agreement to arbitrate. Thereafter, in other litigation with the same financial services company, South Carolina state courts held that consumers who had identical arbitration agreements with the company could band together to Page 4

5 assert class actions before a single arbitrator who had already been appointed by joint agreement between the company and one consumer. In effect, the state court instructed the arbitrator to take the case as a class action arbitration. The arbitrator rendered a significant award against the company and in favor of the class. Another arbitrator, appointed by agreement in another arbitration, also expanded the arbitration into a class action, relying on the prior state court decisions. In Green Tree Financial Corp. v. Bazzle, 123 S. Ct (2003), the Court reversed the state court decisions calling for the arbitrators to handle class actions, but by a closely divided vote held that it was for each arbitrator appointed by the financial services company and a consumer in an individual arbitration to decide whether the arbitration agreement allowed the arbitrator to expand the arbitration to bring in additional consumers. This decision may inspire financial services companies, including insurance companies, concluding arbitration agreements with large numbers of consumers to include explicit language in the arbitration clause limiting the authority of the arbitrator to the specific arbitration between the corporation and the named consumer, and otherwise to preclude an arbitrator's extension of authority in one dispute to other disputes, or to class action arbitration As a result of Green Tree, the AAA published the Supplementary Rules for Class Arbitrations. The AAA will administer demands for class arbitration pursuant to its Supplementary Rules for Class Arbitrations if: (i) the underlying agreement specifies that disputes arising out of the parties agreement shall be resolved by arbitration in accordance with any of the AAA's rules; and (ii) the agreement is silent with respect to class claims, consolidation, or joinder of claims. The AAA is not currently accepting for administration demands for class arbitration where the underlying agreement prohibits class claims, consolidation or joinder, unless an order of a court directs the parties to the underlying dispute to submit their dispute to an arbitrator or to the AAA. Arbitration Between Insurers Various organizations have developed expertise and procedures to provide inter-insurance company arbitration services. For example, the AAA provides arbitration and mediation services to the insurance industry, including provisions for international disputes, through its various rules and insurance industry arbitration panels. In the past few years, the AAA has revamped its various insurance industry arbitration panels by reducing the number of panelists and insuring that panel members have actual industry experience. Page 5

6 Another organization providing dispute resolution services to the insurance industry is the CPR Institute for Dispute Resolution ("CPR"). The CPR Insurance Mediation Forum deals directly with insurance company and coverage disputes. By signing the CPR Insurance Industry Dispute Resolution Commitment (the "Commitment"), an Insurer agrees on behalf of itself and its insurance subsidiaries to attempt to resolve commercial lines coverage disputes with other insurers, with certain exceptions, through confidential negotiation or nonbinding mediation under the auspices of the CPR Insurance Mediation Forum. The Commitment applies to any insurance coverage dispute among insurers (defined to exclude reinsurers) issuing commercial lines policies (as broadly defined) to the same insured, except any pollution, environmental and/or asbestos or other long term exposure related insurance coverage dispute, and except for a dispute solely involving personal lines. Initially, authorized representatives of the insurers will negotiate in a good faith effort to resolve the dispute without the assistance of a neutral third party. If the negotiators have not resolved the matter within 45 days of receipt of the Notice of Negotiation, any party may give a Notice of Mediation, whereupon mediation will take place. If the mediation procedure has been terminated in accordance with its terms without a written resolution of the dispute, either party may propose submission of the dispute to arbitration under CPR or other rules, but no party is obligated to agree to any such procedure. A recent example of inter-insurance dispute resolution procedures is the CPR commitment for disputes relating to the September 11, 2001 attacks. The purpose of the Commitment was to address any problems between insurance companies quickly, inexpensively, and without court rulings that might have long-lasting impact on the industry. To accomplish these goals, each signing insurer has agreed that, when a dispute covered by the Commitment arises with another signing insurer and is not settled promptly in the normal course of business, the signing insurers will initiate a settlement procedure that involves formal negotiation and, if needed, mediation to resolve the problem. Mediation almost always works. In the unlikely event that it does not, the signing companies have agreed to consider but are not obligated to engage in binding and final arbitration under CPR or other rules. Another organization providing for inter-insurance dispute resolution procedures is Arbitration Forums, Inc. ("AF"). The services of AF are available on a compulsory basis to all insurers, self-insured s, and commercial insured s with large retentions who have executed a signed agreement with AF. All of AF s programs are designed with compulsory provisions requiring signatory members to forego the future litigation of Page 6

7 disputes and have their differences settled within the applicable AF forum. AF has seven insurance industry forums, including Automobile Subrogation Forum, Personal Injury Protection (PIP) Arbitration Forum, Medical Payment Subrogation Forum, Property Subrogation Forum, International Reciprocal Program, and Uninsured Motorists' Arbitration Forum. The Subrogation Forum is designed to resolve inter-company subrogation disputes among insurers. Disputes arising from no-fault coverage between insurers, self-insureds and commercial insureds with large retentions can be quickly and economically settled through the Personal Injury Protection (PIP) Arbitration Forum. A Special Arbitration Forum resolves disputes between insurers, self-insureds, and commercial insureds with retentions for claims involving third-party liability and/or disputes regarding concurrent, overlapping, or excess/primary coverage. The Special Arbitration Forum is used (i) to apportion liability/damages when there are two or more parties allegedly responsible for the bodily injury and/or property damage of a third party; (ii) to resolve coverage disputes when there are two or more insurers or self-insureds allegedly providing coverage for the same insured; and (iii) to resolve workers' compensation subrogation claims against the alleged responsible party. AF also provides a unique electronic filing program for arbitration called E-Speed Filing. E-Speed Filing is an electronic filing program for automobile liability and damage claims. This program complements AF s Automobile Subrogation Arbitration Forum to make the arbitration process quicker and easier. E-Speed Filing is designed for two-vehicle accident claims for which the disputed claim amount does not exceed $2,000. With E-Speed Filing, the time from date of filing a claim to posting of a decision is 30 days or less. The decisions are final and binding. On-staff arbitrators with extensive claims experience and problem-solving and analytical skills thoroughly review each case and make the decision based on the information provided. Reinsurance Arbitration Traditionally, most reinsurance disputes are resolved through private, confidential arbitration. Unlike insurer-insured and inter-insurance arbitrations that are typically administered by a third-party organization, there is no reinsurance arbitration organization that administers reinsurance arbitrations. Most reinsurance contracts contain an arbitration clause requiring that a panel of three arbitrators chosen by the parties resolve all disputes. The three arbitrators usually are required to be present or former executive officers of insurance or reinsurance companies or underwriters at Lloyd's, London. This tradition evolved from the business side of the reinsurance industry and reflects a strong desire Page 7

8 to have reinsurance disputes resolved in a businesslike fashion by highly experienced industry professionals. The parties commonly each select their own arbitrator who traditionally may have a predisposition in favor of the appointing party. The party-appointed arbitrators then choose the third arbitrator or umpire. In practice, the parties and their party-appointed arbitrator discuss a series of candidates and then exchange lists with each other. Usually, there are three candidates on each side's list. If there is a match, the process concludes, barring any conflicts or the unavailability of the nominee. If there is no match, each side strikes two from the other side's list, leaving one candidate each. Very often, umpire questionnaires are sent to the candidates before the striking exercise. The umpire is then selected by lot, which today often means using an odd or even digit in the closing Dow Jones Industrial average with one side's candidate chosen if there is an even number and the other side's candidate chosen if there is an odd number. The selection of the umpire tends to be among the most important parts of the arbitration process. In general, most reinsurance agreements contain very broad arbitration clauses that require nearly every conceivable dispute be arbitrated. This often includes fraud in the inducement or other precontract disputes. Reinsurance arbitrations typically proceed under informal rules agreed upon by the parties and the arbitration panel at an organizational meeting, which may be reduced to a panel order or a letter following the organizational meeting. The parties and the arbitration panel craft the format for the arbitration hearing and agree on what discovery is necessary to suit the particular dispute. Pre-hearing disputes are resolved through informal letter requests to the arbitration panel and by interim orders issued by the panel. The reinsurance arbitration itself may take many forms from briefing and oral argument to a full evidentiary trial. At the hearing, the rules of evidence and strict adherence to the law are usually waived. Most reinsurance arbitration clauses instruct the arbitration panel to resolve the dispute as an "honorable engagement" based on the customs and practices of the industry, and not to construe the reinsurance contract as a strict legal document. The typical arbitration clause expressly relieves the arbitrators from following the rules of evidence or application of law. The arbitrators typically will accept most evidence offered at the arbitration hearing, giving the parties the opportunity to present whatever they believe is necessary to support their case. Arbitrators will ask Page 8

9 questions of the witnesses and may request supplemental information if needed to resolve the dispute. At the end of the hearing, the arbitration panel will issue a written award, which typically says very little more than who must pay, and generally does not provide reasons for the panel's decision. Because reinsurance arbitration is private and confidential, there is no reinsurance arbitration reporter and there is no body of arbitration decisions to use as precedent. Most reinsurance arbitrations fall under the jurisdiction of the Federal Arbitration Act, which, like most state arbitration codes, limits severely a party s ability to successfully challenge an arbitration award. While traditional reinsurance arbitration operates without so-called formal rules, many of these rules have been codified into suggested guidelines or suggested procedures offered by a number of organizations. What we have seen in the past ten years is a slow, but steady, movement from the informal, "make-it-up-as-you-go-along" tradition to the suggested use of formalized rules and guidelines. Reinsurance arbitration rules have been promulgated by the Reinsurance Association of America (Mediation and Arbitration Suggested Guidelines for Resolving Reinsurance Disputes, 1998), the American Arbitration Association (Supplementary Rules for the Resolution of Intra- Industry U.S. Reinsurance and Insurance Disputes, 2002), ARIAS-U.S. (Practical Guide to Reinsurance Arbitration Procedure, 1998), and by an industry task force (Procedures for the Resolution of U.S. Insurance and Reinsurance Disputes, 1999). There are many similarities and some significant differences among these promulgations. Some are drafted as guidelines, with various alternatives and rationales for adopting various procedures. Others are meant to be adopted by the parties as the actual rules to follow during the arbitration. Most are common sense rules that attempt to bring regularity and certainty to the process. Even if parties do not agree to follow any particular set of written rules, the ARIAS-U.S. Practical Guide and the Procedures for the Resolution of U.S. Insurance and Reinsurance Disputes are useful roadmaps for understanding and following the typical procedures used in reinsurance arbitrations. These rules also give the parties and the panel options should issues arise during arbitration that require a procedural resolution. For example, parties may choose the umpire selection methods of ARIAS-U.S. or the Procedures for the Resolution of U.S. Insurance and Reinsurance Disputes should disputes over umpire selection arise. Page 9

10 Conclusion Insurance arbitration in the United States ranges from highly structured arbitrations between insurers and their insureds and equally structured inter-insurance arbitrations, to ad hoc arbitrations between insurers and reinsurers. More and more insurance contracts contain arbitration clauses, and procedures for arbitrating disputes between insureds and their carriers continue to expand. An entire industry has developed for inter-insurance disputes in an effort by the insurance industry to resolve inter-company disputes outside of the judicial system. While negotiation and mediation are the first line of dispute resolution methods for inter-company disputes, private arbitration is used with some frequency under the rules of various arbitration organizations. Only reinsurance arbitration differs with its traditional reliance on ad hoc arbitration controlled by the parties and the arbitration panel. Yet, even in reinsurance arbitration there is a movement toward established rules and procedures, including a strong movement in the direction of neutral panels. The author would like to thank Yukihito Machida, an associate at LeBoeuf, Lamb, Greene & MacRae, L.L.P., for his assistance in preparing this article. NYC /29/ :17pm Page 10