Attorneys often make a distinction between substance and process. “Substance” usually refers to what it is you have to prove, or the evidence in a particular case. The “process” refers to how you get there. This article discusses the process of underinsured and uninsured motorist arbitration in Oregon.
Be aware that a party injured by an underinsured or uninsured motorist does have a right to seek a jury trial. However, the insurance statutes allow the injured motorist and the insurance company to agree to a binding arbitration instead of a jury trial. The term “binding” means that the arbitration is the one and only chance to litigate the claim. Any result is final, and cannot be appealed.
First, the insurance company and the injured motorist must agree to arbitrate the claim. Each party then selects an arbitrator. Arbitrators are the fact finders in an arbitration, and act as the judge in the jury on the issues of the case. The two arbitrators then get together to select a third or “swing” arbitrator. Most arbitrators are attorneys with several years of experience, or retired or Senior Judges.
During this time, the insurance company and the injured motorist will conduct “discovery,” which is the exchange of information prior to the actual arbitration. This includes providing documents, and making the injured motorist available for a deposition. The insurance company, under the insurance code, has the right to request, if it is reasonable, that the injured motorist attend a medical examination with a physician chosen by the insurance company.
One challenge an arbitration is simply scheduling the actual arbitration date. The parties are trying to court make the calendar of three arbitrators, to attorneys, an injured motorist, and other expert or fact witnesses. Arbitration will typically occur in a conference room, sometimes at an attorney’s office or at an arbitrator’s office.
The injured motorist and the insurance carrier, prior to arbitration, submit a pre-arbitration statement. This document includes a list of the witnesses, the exhibits, a summary of the issues, as well as a summary of witness testimony.
The arbitration itself is significantly less formal than a court trial. The arbitrator will place witnesses under oath. The injured motorist presents his or her case first, and can call fact witnesses and expert witnesses. Witnesses can also appear by declaration or affidavit. Witnesses are subject to cross examination. After the injured motorist puts his or her case on, the insurance company then presents its case, and also has the option of calling witnesses. In many uninsured/underinsured motorist arbitration cases, the insurance company will call the physician who examined the injured motorist.
The injured motorist and has the opportunity to put on a rebuttal case. A rebuttal case is limited to rebutting or responding to the evidence that the insurance company presented through its witnesses or exhibits.
After everybody has their opportunity to present evidence, the arbitrators will meet in private, and then decide the issues in the case. Sometimes the issues include whether or not the uninsured or underinsured motorist was at fault, as well as the nature and extent of the injured motorist’s damages. Sometimes, fault is not really an issue, and the only question the arbitrators face is the value of the claim.
In most cases, the arbitration panel will not know about whether the personal injury protection paid some or all of the medical expenses, or in an underinsured motorist case, the amount of the underinsured motorist settlement. The arbitrators are simply there to decide issues of fault or negligence, and the resulting amount of damages appropriate to compensate the injured motorist.
The “swing” arbitrator will typically author a brief award letter, outlining the findings of the arbitration panel. In our experience, arbitration awards are almost always unanimous.
After the arbitration, the injured motorist in the insurance company will discuss any issues regarding offset of benefits already paid, or the offset of an underlying liability policy limits settlement from the arbitration award.
If you have questions about uninsured or underinsured motorist claims, call us at 503-325-8600. We handle these issues every day, and can share our experience.