AF recently facilitated its latest Filer and Responder workshops on June 19 and 20 with 182 member company representatives in attendance. The purpose of these workshops is to drive decision quality by:

• Sharing information to improve filing and responding effectiveness.
• Answering questions attendees have regarding filing and responding workflows and procedures.

The following are key takeaways from the June workshops:

Rules of Evidence – Rule 3-6 and Other Considerations

• Remember, it is not the type of evidence that is important (i.e., a recorded statement versus a written statement) but rather the content of the evidence or what it proves/disproves.
• While invoices and photos are not required to prove damages, this evidence might lend support to the damages being sought. The estimate may not fully support a procedure or operation that was allowed, but the addition of photos or invoices may provide additional information in support of the allowance.
• AF articles and E-Bulletins are not to be entered as evidence in support of an argument. These resources are meant for training purposes only and are not intended to be cited as an authority on any claim.

Denial of Coverage – No Liability Policy or No Coverage

• A company should base its coverage defense on the fact that there was no liability policy in effect at the time of the incident at issue, or the company’s policy does not cover the individual or entity seeking coverage for the claim or suit. 
• A Responding Company should be aware of Rule 2-8. If a case is removed from arbitration jurisdiction because of a coverage denial and coverage is subsequently accepted, the Responding Company must reimburse the Recovering Party for any legal expenses and court costs if litigation has been filed due to the removal from arbitration. The Responding Party must also reimburse the Recovering Party for the additional filing fee incurred. These expenses and fees are required to be filed in conjunction with a compulsory loss.
• A denial of coverage letter to the party seeking liability protection is not always necessary to support a denial of coverage defense. For example, if the Responder’s jurisdictional exclusion is based on theft, a denial of coverage letter to the thief may not be needed so long as evidence is submitted to prove theft (i.e., police/theft report).

Deferments – What the Arbitrator Sees

• When requesting or challenging a deferment, enter all arguments in the Deferment section.
• Attach supporting evidence (i.e., policy declarations, proof of additional exposures, proof of pending litigation, etc.) to the Deferment Request or Challenge section.
• The arbitrator will only see the arguments and evidence attached to the deferment request/challenge. So, even if you attach policy declarations to support policy limits, you will need to attach the evidence to the deferment request as well to make it available to the arbitrator should the deferment be challenged.

Additional Exposures

• Policy limits is the most common exclusion asserted by a Responding Company. That said, the arbitrator can only rule on what is clearly asserted and presented in the filing.
• The Responding Company will need to support its position (i.e., policy declaration page, claim system coverage screen, or some other written documentation that states the policy limits).
• The Responding Company should also raise and support any additional exposure(s) to its policy under the Additional Exposure section. This information is critical in helping the arbitrator determine, after liability and damages have been decided, if the Responding Company is out of jurisdiction.