Founded in 1991, MDRS has perhaps mediated and arbitrated more automobile claims of all types than any other DR provider in Massachusetts. Automobile related claims are particularly suited to the processes of dispute resolution, which are designed to meet the parties’ interests in resolving these cases equitably, economically and skillfully, and avoiding the time, expense, and uncertainty of trial in the Court system. Over the past years, the inability of the Court system to appropriately adjudicate the array of automobile claims has become even more pronounced to legal consumers.
MDRS has attempted to maintain our reasonable fee structure for automobile related claims and the present fees for a standard mediation session or arbitration hearing are but $575.00 per party, much less than parties would expend in bringing their case through litigation to a distant trial in the traditional Court system. MDRS also offers what we see as the best available panel of experienced neutrals with extensive substantive experience in mediating and arbitrating automobile claims. We have resolved thousands of automobile cases, including, but not limited to:
-Automobile bodily injury cases, ranging from soft tissue injuries to wrongful death cases
-Motorcycle, moped and bicycle accidents
-Trucking, Commercial Carrier and Disabled Transport Claims
-Lemon Law Claims
-Automobile coverage disputes
-Personal Injury Protection Claims
-Uninsured Motorist Claims
-Underinsured Motorist Claims
-MGL c. 93A and 176D claims
-Automobile Insurance Fraud or SIU Claims
-Automobile Subrogation and Third party claims
The DR processes most commonly sought at MDRS for resolving automobile claims are mediation, arbitration, and high-low arbitration.
In mediation an experienced neutral selected jointly by the parties assists them in negotiating and resolving their own dispute. The mediator has no authority to impose a settlement and the parties are under no obligation to reach agreement. The mediator may, but need not, suggest his or her own settlement evaluation. Mediation proceedings are private and confidential and the substance of the discussions in mediation is generally considered privileged. More than 95% of cases mediated with MDRS reach settlement.
In arbitration a binding decision is made by a neutral arbitrator, or panel of arbitrators, selected jointly by the parties after a hearing is conducted which involves the presentation of evidence and arguments by the disputants. This process most closely resembles a trial in the courts. In most arbitrations, however, the rules of evidence are somewhat relaxed and there can be more limited pre-hearing discovery. The award of the arbitrator, except in limited rare circumstances, is final and not subject to appeal.
High-low arbitration is a process designed to minimize the risks of both parties in proceeding to binding arbitration and is being used more and more by parties, attorneys, and insurers in automobile claims. In advance of the hearing the parties agree in writing to a minimum and maximum arbitration award. The decision of the arbitrator is binding but can be no less nor more than the minimum and maximum limits that the parties previously agreed to. Generally the arbitrator is not made aware of the high and low limits chosen by the parties, so as not to be influenced by these limits in making their award. This process can be used effectively when parties have made some progress in their negotiations and wish not to abandon the progress made, but rather choose to have an impartial arbitrator resolve the differences remaining within set limits. It may also be used to cap any award by the amount of automobile insurance available.
Automobile Bodily Injury Claims:
Over the past 25 years, perhaps no other type of claim has been the subject of more DR processes than cases brought by plaintiffs suffering injury in automobile accidents. This is because DR is a more efficient, economical, fair and flexible process than is presently offered by the Courts to effectively resolve these claims. Plaintiffs, defendants, counsel, and insurers all can appreciate the inherent benefits of DR in such cases. Unlike the Courts, DR affords participants the opportunity to sculpt the resolution process to the particular case. Participation in DR in automobile bodily injury cases is voluntary and not mandated by the automobile insurance contract, unlike uninsured and underinsured motorist claims.
If the parties cannot negotiate a settlement on their own, mediation affords them the opportunity to work with an experienced, professional neutral to reach their own resolution. MDRS mediators are experts at bringing parties from dispute to settlement.
Unlike trial in the Courts, binding arbitration allows the parties to schedule a hearing at their convenience, both in time and place, before an arbitrator of their own choosing. MDRS is ready for the hearing on the date scheduled, unlike the case often with the Courts. A hearing will be conducted in a private conference room, not in a public courtroom and the decision is issued is accompanied by a reasoned opinion, unlike the results of a jury trial.
An MDRS Arbitration Agreement is signed by all parties. MDRS Arbitration Rules are provided to the parties and by agreement they are applicable to the arbitration process. Evidence to be submitted at the arbitration hearing is to be produced to the opposing side no later the 10 days before the arbitration hearing (MDRS Rule 16).
Before the arbitration hearing begins, the parties can enter into stipulations that could streamline the hearing, such as whether liability is contested or acknowledged, whether and to what extent elements of damages are contested, such as medical bills, lost wages and/or offsets to be taken from any total award, such as for Personal Injury Protection [PIP] Benefits paid. The process of introducing evidence can also be made more efficient and understandable than the rules of procedure dictated by the Courts. The rules of evidence can be somewhat more relaxed, but not at the expense of fundamental fairness and reliability. Witness testimony is taken under oath. Counsel, or parties if not represented, can make opening and closing statements. Signed affidavits, narrative medical reports and other business records can often be admitted.
After the close of the hearing a written reasoned award is issued, usually within 14-30 days. The award has the same effect as a jury award and is enforceable in any Court of competent jurisdiction.
As indicated above, the parties may also choose to enter into a High-Low Arbitration Agreement, usually kept confidential from the arbitrator, that limits any award to the high and low amounts agreed upon.
By using DR with MDRS, parties to automobile bodily injury cases can achieve resolution of their case expeditiously, economically, fairly and finally, which is, after all, what all parties involved in these matters are seeking.
Uninsured and Underinsured Motorist Claims:
Section 113L. states in pertinent part…(1) No policy shall be issued or delivered in the commonwealth with respect to a motor vehicle, trailer or semitrailer registered in this state unless such policy provides coverage in amounts or limits prescribed for bodily injury or death for a liability policy under this chapter, under provisions approved by the insurance commissioner, for the protection of persons insured there under who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, trailers or semitrailers and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting there from; and, subject to the terms and conditions of such coverage, such coverage shall include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.
Briefly stated, benefits payable under underinsured motorist coverage are limited to a maximum of the difference between the applicable limits of underinsured motorist coverage and the amount collected from the tortfeasor’s liability coverage. Under the terms of the statute, the tortfeasor vehicle qualifies as “underinsured” only if the applicable limits of liability coverage are less than the claimant’s limits of underinsured motorist coverage.
If the insurer and the claimant are unable to agree on issues of liability (the purported tortfeasor’s negligence) or damages, those issues must be resolved through arbitration. No defense to coverage or arbitration lies solely on the basis that the claimant may have settled with the tortfeasor’s insurer for less than the tortfeasor’s limit of liability coverage. However, in such cases, the underinsured motorist carrier is entitled to an offset reflecting the full amount of the tortfeasor’s available liability coverage limit. All fact finding functions involved in determining liability and damages are subject to the automobile policy’s arbitration clause.
An insured who intends to pursue an underinsured motorist claim should obtain the consent of the insurer prior to settlement with the tortfeasor. Insurers consenting to settlement are nevertheless not precluded from contesting liability in connection with the underinsured motorist claim. There is a six-year statute of limitations applicable to uninsured/underinsured motorist claims.
Ordinarily, the amount of UM coverage available is not disclosed to the arbitrator at the arbitration hearing. Often, the amount of the underlying recovery from the tortfeasor and the amount of Personal Injury Protection Benefits paid, both of which will offset any total award of damages, are disclosed, by agreement of the parties, to the arbitrator.
Personal Injury Protection Benefits (PIP) Claims:
Briefly stated, Personal Injury Protection or “no-fault” benefits require an automobile insurer to pay reasonable and necessary medical and funeral expenses incurred within two years of the accident, lost wages of up to 75 percent of the injured person’s average weekly gross wage or equivalent for the year immediately preceding the accident (if employed at the time of the accident) or of up to 75 percent of the injured person’s actual loss of earning power (if not employed at the time of the accident); and replacement services paid to someone outside of the injured person’s household to perform necessary services that the injured party would have otherwise performed if not for his or her disability resulting from the accident.
Persons entitled to PIP benefits include anyone occupying the insured vehicle with the insured’s consent; the named insured or anyone else living in his or her household if injured either while occupying or struck by an auto that does not have Massachusetts compulsory insurance; and any pedestrian struck by the insured’s automobile in Massachusetts, or any Massachusetts resident struck by the insured’s automobile outside of Massachusetts who was a pedestrian at the time.
MGL c. 90 Section 34M, includes, in pertinent part, this language: In any case where benefits due and payable remain unpaid for more than thirty days, any unpaid party shall be deemed a party to a contract with the insurer responsible for payment and shall therefore have a right to commence an action in contract for payment of amounts therein determined to be due in accordance with the provisions of this chapter. In any such action commenced in the district court in the judicial district in which the unpaid party resides, the court shall, upon the filing of an answer by the insurer and upon the motion of the unpaid party, advance the action for a speedy trial. If the unpaid party recovers a judgment for any amount due and payable by the insurer, the court shall assess against the insurer in addition thereto costs and reasonable attorney’s fees.
The statutory language above concerning actions in contract for payment of PIP, as well as the allowance of reasonable attorney’s fees and costs, has resulted in a volume of PIP claims begin presented on behalf of insured parties as well as medical care providers. Particularly with the exposure of costs and attorneys fees being awarded in the event of a judgment in any amount, insurers may be particularly interested in the expedience and economy offered by DR to resolve these claims. Over the past years MDRS has mediated and arbitrated many of these PIP cases. On a number of occasions several claims by a particular insurer or a medical care provider have been submitted together to streamline the resolution process in these matters, made possible with the flexibility afforded by the DR process.
MDRS is particularly suited to handle automobile claims of all varieties in a manner that affords expedience, economy, fairness, and finality to parties, attorneys, and insurers. Should you wish to schedule your case or have any questions please call us at (800) 536-5520.