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Motorcycle Insurance Laws

New York State Motorcycle Insurance Laws

Subpart 65-1  Prescribed Policy Endorsements
Subpart 65-2  Rights and Liabilities of Self-insurers
Subpart 65-3  Claims for Personal Injury Protection benefits
Subpart 65-4  Arbitration


NEW YORK STATE - INSURANCE DEPARTMENT

REGULATION NO. 68  - (11 NYCRR 65)

 

REGULATIONS IMPLEMENTING THE COMPREHENSIVE MOTOR VEHICLE INSURANCE REPARATIONS ACT

 

11 NYCRR 65-4 (Regulation 68-D)

Arbitration

 

 

65-4.1              Applicability of arbitration procedures under Article 51 of the Insurance Law.

 

This subpart shall apply to insurers, and the term insurer, as used in this subpart, shall include both insurers and self-insurers, as those terms are defined in this Part and article 51 of the Insurance Law, and shall also include the Motor Vehicle Accident Indemnification Corporation (MVAIC) created pursuant to article 52 of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law. 

 

65-4.2              Initiation of optional arbitration procedures under section 5106(b) of the Insurance Law for arbitrations filed with an organization designated by the Superintendent on and after December 1, 1999.

 

(a) Administration by an organization designated by the Superintendent. 

 

(1) Section 5106 of the Insurance Law requires that the Superintendent of Insurance promulgate simplified procedures for the resolution by arbitration of no-fault disputes.

 

(2) Chapter 892 of the Laws of 1977 provides for the establishment of revised optional arbitration systems for the resolution of no-fault disputes. These changed procedures for the administration of the arbitration system provide for initial review of all arbitration requests by an organization designated by the Superintendent. The designated organization, acting on behalf of the superintendent, is authorized to receive, attempt to conciliate and forward to arbitration all requests for arbitration that it cannot conciliate.

 

(3) All optional arbitrations pursuant to section 5106(b) of the Insurance Law will be administered by an organization designated by the Superintendent.

 

(4) No-Fault Optional Arbitration Advisory Committee. The superintendent shall select an advisory committee composed of 12 members to review the operations and the actual costs of the optional arbitration procedures set forth in this subpart. Not more than four of the members of the advisory committee shall be representatives of self-insurers.

 

(5) Oversight.  The superintendent shall oversee the operation procedures of the designated organization with respect to the administration of the optional arbitration process.  Such oversight shall include, but not be limited to, access to all systems, databases, and records related to the optional arbitration process.  In addition, the designated organization shall make reports to the superintendent in whatever form the superintendent shall prescribe.

 

(b) Procedures. 

(1) Initiation of arbitration.

 

(i) An applicant for benefits may initiate arbitration proceedings by mailing a copy of the denial of claim form prescribed by subdivision 65-3.4(c)(11) of this Part, upon which the applicant has entered the reason(s) for contesting the denial, together with a detailed listing and calculation of all incurred expenses in dispute, indicating the dates upon which the claims for incurred expenses were submitted to the insurer, to the address designated on the denial of claim form. 

 

(ii) If there is a dispute with respect to any matter which is arbitrable pursuant to section 5106 of the Insurance Law and a denial of claim form has not been issued, the applicant may initiate arbitration by completing a no-fault arbitration request form and forwarding the original and one copy to the designated organization at the address designated on the form, and one copy to the insurer against which arbitration is being requested.  The no-fault arbitration request form shall be prescribed by the designated organization and approved by the superintendent.

 

(iii) The denial of claim form or the arbitration request form shall be accompanied by a check or money order for $40 payable to the designated organization. This filing fee shall be returned to the applicant directly by the insurer, if the applicant prevails in whole or in part. 

 

(iv) As a condition precedent to arbitration where there is no denial of claim by an insurer, evidence of attempts to settle the dispute must be detailed on the arbitration request form. 

 

(v) In the absence of a denial of claim form, a dispute shall be considered arbitrable if the claim is overdue as described in section 65-3.8(a)(1) of this Part and a demonstrable attempt was made by the applicant to obtain payment or an explanation from the insurer of the continued nonpayment of the claim. 

 

(vi) All items on the no-fault arbitration request form must be completed in full.  An explanation must be provided for any omitted spaces on the form, which may be obtained, upon request, from the designated organization by writing to the address designated on the Denial of Claim Form (NYS Form NF-10), which is included in Appendix 13 of this Title. 

 

(2) Initial review by the conciliation center. 

 

(i) The designated organization shall establish a conciliation center, which shall review all requests for arbitration and assign file numbers thereto, which shall be used by the designated organization and the parties thereto to identify the case.

 

(ii) Each insurer shall designate, for each claims office used by the insurer to handle New York no-fault claims, a responsible staff member whom the conciliation center can contact to determine whether the no-fault dispute for which arbitration has been requested can be resolved without the need for arbitration.  Since the conciliation staff will attempt to resolve the dispute by telephone, facsimile, e-mail, or other appropriate means, the insurer's designated representative shall have the authority to bind the insurer to any agreement reached.  The insurer shall notify the conciliation center of the designated representative in writing and must immediately notify the conciliation center of any change in such designation.

 

(iii) If it appears, after review, that the dispute may be resolved without arbitration, the conciliation center will communicate with the parties and attempt through conciliation to resolve the dispute. 

 

(a) If all the issues in dispute are resolved through the designated organization’s conciliation, by the insurer agreeing to pay and the applicant agreeing to accept all or a portion of the amount in dispute, the insurer shall, in addition, return the filing fee to the applicant.  If the claim was overdue, the insurer shall also pay the applicable interest. 

 

(b) If the arbitration was initiated by use of a no-fault arbitration request form and it is subsequently established that the claim and any applicable interest and attorney fees were paid at least 20 calendar days prior to the submission of the completed arbitration request form, the filing fee shall not be returned to the applicant. In such instance, an additional $100 service and processing fee shall be payable by the applicant to the designated organization.

 

(iv) If it appears to the conciliation center that the dispute cannot be resolved through conciliation within 60 calendar days, the conciliation center will refer the request for arbitration as prescribed in this section and the parties shall be so advised. The conciliation center may, however, withhold such referral pending receipt from the applicant of pertinent and available information that has been requested. 

 

(3) Submission of documents.

 

(i) The applicant shall submit all documents supporting the applicant’s position along with their request for arbitration.  All such documents shall also be simultaneously submitted to the respondent. Following this original submission of documents, no additional documents may be submitted by the applicant other than bills or claims for ongoing benefits.

 

(ii) The designated organization shall, no later than five business days after receipt of the arbitration request, advise the respondent of such receipt.  The respondent shall, within 30 calendar days after the mailing of such advice, provide all documents supporting its position on the disputed matter.  Such documents shall be submitted to the applicant at the same time.  The respondent may, in writing, request that the designated organization provide an additional 30 calendar days to respond based upon reasonable circumstances that prevent it from complying.

 

(iii) The written record shall be closed upon receipt of the respondent’s submission or the expiration of the period for receipt of the respondent’s submission. Documents submitted by either party after the record is closed shall be marked “Late”.

 

(iv) Any additional written submissions may be made only at the request or with the approval of the arbitrator.

 

(v) The provisions of this paragraph shall take effect with all arbitrations filed on and after March 1, 2002.

 

(4) Prior to transmittal to arbitration, the insurer may make a non-binding written offer to resolve the dispute.  Such offer, if not accepted by the applicant, shall be transmitted to the arbitration forum, but shall not be disclosed to the arbitrator. The parties to the dispute shall also not disclose the offer to the arbitrator.

 

(5) All disputes remaining after expiration of the conciliation period shall be forwarded for arbitration.

 

(c) Financing.

 

(1) The cost of administering the conciliation function, reduced by any fees collected, shall be paid annually by insurers (including self-insurers and MVAIC) to the designated organization upon receipt of a statement therefrom. This cost shall be distributed among insurers in an equitable manner approved by the Superintendent of Insurance. This distribution shall, to the extent practicable, be a function of the degree to which an insurer is named as a respondent in conciliation proceedings of the designated organization.

 

(2) Semiannually, commencing December 1, 1999 and continuing every six months thereafter, the designated organization shall prepare an estimate of the expenses expected to be incurred for the operation of the conciliation function during the subsequent six-month period. The projected cost of the conciliation function shall be assessed on a proportionate basis to those insurers named as respondents in the preceding calendar year and shall be subject to the approval of the superintendent. The designated organization shall send to each applicable insurer a bill for the amount due and any payment due shall be made to the designated organization within 30 days after billing date. 

 

(3) On an annual basis, as of December 31st of each year, the designated organization shall prepare a detailed analysis of the actual costs incurred for the operation of the conciliation function. This analysis shall be forwarded to the No-Fault Optional Arbitration Advisory Committee and the superintendent on or before April 30th of each year. The No-Fault Optional Arbitration Advisory Committee shall notify the designated organization and the superintendent whether it accepts or rejects the designated organization's cost analysis in whole or in part. In the event that the designated organization and the No-Fault Optional Arbitration Advisory Committee cannot resolve any differences that may exist, such differences will be referred to the superintendent for resolution. The superintendent's decision shall be binding on the designated organization and insurers. 

 

(4) Once the designated organization submits a final cost analysis that has either been approved by the No-Fault Optional Arbitration Advisory Committee or resolved by the superintendent in the event of a dispute, the designated organization shall send to each applicable insurer an accounting of the actual assessment. Any adjustment shall be made to the bill for the subsequent estimated assessment, as illustrated by the following example:

  

EXAMPLE

 

(1) Total conciliation cases closed during year 30,000

(2) Cases in which Insurer A was named as a respondent in theconciliation proceeding

1,250
(3) Insurer A's Assessment Percentage = (2)/(1) 4.167%

(4) Actual Expenses of the conciliation function reduced by amounts received through fees collected

$2,500,000
(5) Insurer A's actual expense = (3)*(4) $104,175
(6) Insurer A's Estimated Assessment
$102,000
(7) Insurer A's Debit or (Credit) = (5)-(6) $2,175

65-4.3              Jurisdiction of arbitration forums.

 

(a) Insurance Department Arbitration (IDA) forum.  IDA jurisdiction shall be limited to requests for No-Fault arbitration filed prior to December 1, 1999 and shall include only those disputes where the remaining issues after the expiration of the conciliation period involve:

 

(1) correct computation of health service provider fees, whether or not such fees are specifically covered by the fee schedules promulgated in Part 68 of this Title (Regulation 83);

 

(2) where the amount in dispute is less than $400 and such dispute does not involve a coverage question or affect the outcome of any other portion of the applicant’s claim; or

 

(3) whether the claim was overdue at the time it was paid, how long the claim was overdue, or whether the correct amount of interest or attorney’s fee on an overdue claim was paid.

 

(b) No-Fault Arbitration forum. All disputes remaining after expiration of the conciliation period, involving issues other than those to be resolved pursuant to subdivision (a) of this section, shall be forwarded to the No-Fault Arbitration forum which shall be the forum for their resolution. 

 

(c) Where a request for arbitration involves issues which fall within the jurisdiction of both of the forums specified in this paragraph, the dispute shall be resolved by the No-Fault Arbitration forum, except disputes specified in paragraph (a)(1) of this section and filed prior to December 1, 1999 shall be resolved by IDA arbitration.

  

65-4.4              Insurance Department Arbitration (IDA) forum procedure.

 

(a) Notice. If the dispute is subject to IDA arbitration, the parties will be notified by the IDA, in writing, that the dispute will be resolved by arbitration on the basis of written submissions of the parties.  All such submissions shall be received by the IDA within 30 calendar days of the date of mailing of the notice.  No oral arguments will be permitted.  In order to facilitate receipt of evidence by IDA, the parties may forward their submissions prior to receipt of the above notification.

 

(b) Consolidation. The IDA may consolidate disputes if the claims arose out of the same accident and involve common issues of fact.

 

(c) Designation of arbitrators. The arbitrator shall be a senior member of the Insurance Department staff designated by the superintendent to serve as an IDA arbitrator and shall not be the same person who attempted to conciliate the dispute. 

 

(d) Qualifications of the arbitrator.  Every IDA arbitrator shall be an examiner who regularly administers article 51 of the Insurance Law or an attorney.  If the issue in dispute includes a request for an additional attorney’s fee pursuant to section 65-4.6 of this subpart, the IDA arbitrator shall be an attorney. No person shall serve as an arbitrator in any arbitration in which such person has any financial or personal interest. An arbitrator shall disclose to the IDA any circumstance which is likely to create an appearance of bias or which might disqualify such arbitrator. Upon receipt of such information, the IDA shall immediately disclose it to the parties. If a party challenges an arbitrator, the specific grounds for the challenge shall be submitted in writing to the superintendent. The superintendent shall determine whether the arbitrator should be disqualified and shall inform the parties of that determination, which shall be conclusive. If an arbitrator should resign, be disqualified or be otherwise unable to perform necessary duties, the superintendent shall designate another arbitrator to resolve the dispute.

 

(e) Evidence.  The arbitrator shall be the judge of the relevancy and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary.  The arbitrator may subpoena documents upon the arbitrator’s own initiative or upon the request of any party when the issues to be resolved require such documents. Copies of all documents submitted to the arbitrator shall be simultaneously transmitted to the other parties.  The arbitrator may raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance Law and Department regulations.

 

(f) Form and scope of award. The award, which shall be in writing and signed by the arbitrator, shall state the issues in dispute and contain the arbitrator’s findings, conclusions and decision based on the Insurance Law and Insurance Department regulations. In the event that the applicant prevails in whole or in part on the claim, the arbitrator shall also direct the insurer to:

 

(1) reimburse the applicant for the amount of the filing fee paid, unless the filing fee had already been returned to the applicant; 

 

(2) if due under section 5106 of the Insurance Law, pay a reasonable attorney’s fee in accordance with the limitations set forth in section 65-4.6 of this subpart; and 

 

(3) in an award of interest, the arbitrator shall compute the amount due for each element of first-party benefits in dispute, commencing 30 days after proof of claim therefor was received by the insurer and ending with the day of payment of the award, subject to the provisions of subdivisions (c) and (d) of section 65-3.9 of this Part (stay of interest).

 

(g) Time of award. The award shall be issued no later than 30 calendar days from the final date submissions must be received. Failure to adhere to the prescribed time limit shall not nullify the award.

 

(h) Delivery of award to parties. The award shall be transmitted to the parties, which shall accept as delivery of the award the placing of the award or a true copy thereof, in the mail, addressed to the parties and their designated representatives at their last known addresses, or by any other form of service permitted by law. The IDA shall note on such award or transmittal letter thereof the date of mailing, and keep a record of same.

 

(i) Interpretation and application of procedures. The arbitrator shall interpret and apply these procedures insofar as they relate to the arbitrator’s powers and duties. All other procedures shall be administered by the Insurance Department.

 

(j) Payment of award. Insurers shall, within 30 calendar days of the date of mailing of the award, either pay the amounts set forth in the award or, where grounds exist, appeal to the master arbitrator as provided for in this Part, which appeal shall stay payment of the award. The award need not be confirmed into judgment. 

 

(k) Financing. The Insurance Department shall bill the insurer the sum of $100 whenever the applicant prevails in whole or in part on the disputed claim. Such fee shall be payable within 30 days after the billing date and shall be utilized to defray the operating expenses of the department.

 

65-4.5              No-Fault Arbitration forum procedure.

 

(a) Notice. If a dispute has been transmitted for arbitration by the Insurance Department or the conciliation center, the parties will be notified by the designated organization, in writing, that the dispute will be resolved by arbitration.  At the arbitrator’s discretion, if the dispute involves an amount less than $2,000, the parties shall be notified that the dispute shall be resolved on the basis of written submissions of the parties.  All such submissions shall be received by the designated organization within 30 calendar days of the date of mailing of the notice.  No oral arguments will be permitted, unless the arbitrator determines that additional evidence or testimony is necessary.  In order to facilitate receipt of evidence by the designated organization, the parties may forward their submissions prior to receipt of the above notification.

 

(b) Special Expedited Arbitration.

 

(1) Special Expedited Arbitration shall be available for disputes involving the failure to submit notice of claim within 30 calendar days after the accident and where it has been determined by the insurer that reasonable justification for late notice has not been established.

 

(2) An applicant may request Special Expedited Arbitration for resolution of the dispute involving late notice within 30 calendar days after mailing of the denial of claim by the insurer stating that reasonable justification for late notice has not been established.  At the time of such request, the applicant shall make a complete submission supporting his or her position.  No further submissions shall be accepted unless requested by the arbitrator.

 

(3) Applications for Special Expedited Arbitration shall be submitted to the Conciliation Center of the designated organization and shall comply with the requirements for initiation of arbitration contained in paragraph 65-4.2(b)(1) of this Subpart.

 

(4) The applicant’s submission shall be forwarded by the Conciliation Center to the insurer within 3 business days of receipt. The insurer may provide the Center with reasonable special mailing or transmittal instructions to facilitate the processing of these arbitration requests.

 

(5) The insurer shall respond in writing to the applicant’s submission within 10 business days after the mailing by the Center. No further submissions shall be accepted unless requested by the arbitrator.

 

(6) The dispute shall be resolved solely upon the basis of written submissions unless the arbitrator concludes that the issues in dispute require an oral hearing.

 

(7) The arbitrator shall issue a written decision within 10 business days after receipt of all written submissions from the parties or at the conclusion of an oral hearing.

 

(8) For the purpose of Special Expedited Arbitration, the superintendent may appoint arbitrators, qualified in accordance with the provisions of this section, to serve on a per diem basis. Such arbitrators shall contract with the designated organization.  The rate of per diem compensation shall be determined by the designated organization, after consultation with the No-Fault Arbitrator Screening Committee subject to the approval of the Superintendent. Such arbitrators shall be independent contractors, and shall not be employees or agents of the designated organization or the Insurance Department.     

 

(c) Consolidation. The designated organization shall, except where impracticable, consolidate disputes for which a request for arbitration has been received, if the claims involved arose out of the same accident and involve common issues of fact. 

 

(d) Qualifications of arbitrators for a hearing held in New York State.

 

(1) No-Fault Arbitrator Screening Committee. The superintendent shall appoint an advisory committee composed of six members, who will review the qualifications of applicants for the position of no-fault arbitrator for hearings to be held in New York State and review the performance of the appointed arbitrators. The screening committee shall make recommendations to the superintendent pertaining to the appointment and dismissal of no-fault arbitrators.  The committee shall consist of one representative of the New York State Bar Association, one representative of the New York State Trial Lawyer’s Association, two representatives of the insurance industry selected by the No-Fault Optional Arbitration Advisory Committee, a nonvoting representative of the designated organization and a nonvoting representative of the Insurance Department. Tie votes shall be reported as such to the superintendent. 

 

(2) A no-fault arbitrator shall be an attorney, licensed to practice law in New York State, with at least 5 years’ experience which the No-Fault Arbitrator Screening Committee has determined qualifies such attorney to review and resolve the issues involved in no-fault insurance disputes. Documentation of such experience shall be submitted to, and reviewed by, the superintendent prior to the appointment of an arbitrator.

 

(3) All no-fault arbitrators shall be appointed by, and serve at the pleasure of, the superintendent. An arbitrator candidate shall disclose to the superintendent any circumstance, which is likely to create an appearance of bias, or which might disqualify such person as an arbitrator, and the superintendent shall determine whether the candidate should be disqualified. The superintendent shall forward the name of all no-fault arbitrators to the designated organization, and promptly inform the designated organization of all additions to, and deletions from, the panel.

 

(4) No person shall, during the period of appointment as an arbitrator, have any practice or professional connection with any firm or insurer involved in any degree with automobile insurance or negligence law. The No-Fault Arbitrator Screening Committee, subject to the approval of the superintendent, shall establish any additional qualifications for appointment as a no-fault arbitrator. 

 

(e) Qualifications of arbitrators for a hearing held outside New York State. For a hearing which will be held outside New York State, the arbitrator shall be a licensed attorney in the State or Canadian province where the hearing is held.

 

(f) Designation of arbitrator. The designated organization shall assign an arbitrator who will hear the case, and shall submit the name of the arbitrator to each party to the arbitration. The designated organization shall maintain a file containing the professional background of each of its no-fault arbitrators, and the information contained therein shall be available to any party to the arbitration upon written or oral request. 

 

(g) Conflict of interest and disqualification of arbitrator. No person shall serve as an arbitrator in any arbitration in which such person has any financial or personal interest or bias. If a party challenges an arbitrator, the specific grounds for the challenge shall be submitted in writing to the designated organization, which shall determine, in consultation with the Insurance Department, within 15 calendar days after receipt of the challenge, whether the arbitrator shall be disqualified. Such written determination, in a format approved by the Department, shall be final and binding. If an arbitrator should resign, be disqualified or be otherwise unable to perform necessary duties, the designated organization shall assign another arbitrator to the case.

 

(h) Oaths.  Arbitrators shall take an annual oath of office. Arbitrators shall require all witnesses to testify under oath or affirm that their statements are true under the penalties of perjury.

 

(i) Time and place of arbitration.

 

(1) The arbitration hearing shall be held in the arbitrator’s office or any other appropriate place selected by the designated organization and, to the extent practicable, within the general locale of the applicant’s residence but, in no event, more than 100 miles from such residence.  The arbitrator shall fix the time and place for such hearing.  At least 15 calendar days prior to the hearing, the designated organization shall mail a notice of hearing to each party. Unless otherwise agreed by the parties, the hearing shall be scheduled to be held within 30 calendar days of the date of the appointment of the arbitrator. The parties to the arbitration shall not directly contact the arbitrator at any time prior to or subsequent to the hearing, but shall direct all communications to the designated organization.

 

(2) Effective with arbitrations filed on and after March 1, 2002, if the applicant requests arbitration within 90 days after the claim became overdue or within 90 days after receipt of the denial of claim, the arbitration shall be scheduled for a hearing within 45 days after transmittal from the conciliation center, when requested by the applicant.

 

(j) Postponements and adjournments. The arbitrator may for good cause postpone or adjourn the hearing upon request of a party or upon the arbitrator’s own initiative.  Each party may cause one adjournment without the payment of an adjournment fee, if the adjournment request is received by the designated organization at least two business days prior to the scheduled arbitration. There shall be an adjournment fee of $50 payable to the designated organization by the party requesting any subsequent adjournment. An adjournment fee of one hundred dollars ($100) shall be payable to the designated organization by the party causing any adjournment within two (2) business days prior to the scheduled hearing. Such fees shall be used to defray the cost of administration of the arbitration forum.

 

(k) Representation at arbitration. Any party shall either represent itself or be represented by an attorney.

 

(l) Record of proceedings. A stenographic record of the arbitration proceedings shall not be required. However, a party requesting such a record shall inform the other party or parties of such intent, make the necessary arrangements, and pay the cost thereof directly to the person or agency making such record. Any other party or parties to the arbitration shall be entitled to a copy of such record upon agreeing to share the cost of the total stenographic expense. Whether or not a stenographic record of the proceeding is made, the arbitrator shall, at a minimum, record the exhibits offered by each party and the names and addresses of all parties and witnesses.

 

(m) Interpreters. Any party wishing an interpreter shall make all arrangements directly with the interpreter and shall assume the costs of such services.

 

(n) Attendance at hearings. Persons having a direct interest in the arbitration are entitled to attend hearings. It shall be discretionary with the arbitrator to permit the attendance of any other persons.

 

(o) Evidence.

 

(1) The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and strict conformity to legal rules of evidence shall not be necessary.  The arbitrator may question any witness or party and independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance Law and Department regulations.

 

(2) The arbitrator or an attorney of record in the arbitration may subpoena witnesses or documents upon the arbitrator’s own initiative or upon the request of any party, when the issues to be resolved require such witnesses or documents. 

 

(3)

(i)For arbitrations filed prior to March 1, 2002, copies of all documents to be submitted to the arbitrator shall be simultaneously transmitted to the other parties at least seven calendar days prior to the hearing. The arbitrator shall determine if all parties received such documents prior to the commencement of the hearing.

 

(ii) For arbitrations filed on or after March 1, 2002, the arbitrator shall determine if the parties provided and exchanged documents in accordance with the requirements of paragraph (3) of subdivision (b) of section 65-4.2 of this Part.

 

(4) If a party to the arbitration intends to introduce an expert witness at the hearing, the identity of the expert witness must be given to all parties at least seven calendar days prior to the hearing. 

 

(p) Arbitration in the absence of a party. The arbitration may proceed in the absence of any party who, after due notice, fails to be present or fails to obtain a postponement or adjournment. An award shall not be made in favor of an appearing party solely on the text_con of another party. The arbitrator shall require the appearing party to submit such evidence as may be required for the making of an award. The arbitrator may require the appearance of a party at the hearing if the arbitrator determines that the party’s appearance is necessary to realize a fair and just resolution of the dispute and to afford all parties due process.

 

(q) Reopening of hearing. The hearing may be reopened by the arbitrator, for good cause, at any time before the award is made. 

 

(r) Time of award. The award shall be made and delivered no later than 30 calendar days from the date the hearing is completed or 30 days from the date of the designated organization’s transmittal of the final documentary proofs to the arbitrator.  Failure to adhere to this time limit shall not nullify the award.

 

(s) Form and scope of award. The award shall be in writing in a format approved by the superintendent. It shall state the issues in dispute and contain the arbitrator’s findings and conclusions based on the Insurance Law and Insurance Department regulations. It shall be signed by the arbitrator and shall be transmitted to the parties by the designated organization with a copy to the Insurance Department. The award shall contain a decision on all issues submitted to the arbitrator by the parties. In the event that the applicant prevails in whole or in part on the claim, the arbitrator shall also direct the insurer to:

 

(1) reimburse the applicant for the amount of the filing fee paid, unless the filing fee had already been returned to the applicant;

 

(2) if due under section 5106 of the Insurance Law, pay a reasonable attorney’s fee in accordance with the limitations set forth in section 65-4.6 of this subpart; and 

 

(3) in an award of interest, compute the amount due for each element of first-party benefits in dispute, commencing 30 days after proof of claim therefor was received by the insurer and ending with the date of payment of the award, subject to the provisions of subdivision 65-3.9(c) of this Part (stay of interest).

 

(t) Imposition of costs.

 

(1) Effective with arbitrations filed on and after March 1, 2002, the arbitrator may impose all administrative costs of arbitration to the applicant or apportion the administrative costs of arbitration between the parties if the arbitrator concludes that the applicant’s arbitration request was frivolous, was without factual or legal merit, or was filed for the purpose of harassing the respondent.  Cases in which arbitrators impose all administrative costs to the applicant shall be excluded from the assessment calculation contained in paragraph (aa) of this subdivision.

 

(2) The amount of such administrative costs per case shall be established for each calendar year by the designated organization.  The administrative cost shall be based upon the actual administrative costs per case in the prior calendar year. Such costs shall be paid to the designated organization and the receipt of such costs shall be used to reduce the actual expenses of the designated organization for the administration of the arbitration forum.

 

(u) Award upon settlement. 

 

(1) If the parties settle their dispute during the course of arbitration, the arbitrator shall set forth the terms of the agreed settlement in an award, which shall provide that the parties agree that the settlement is final and binding and shall not be subject to review by a master arbitrator or by a court. If an attorney’s fee is due under section 5106 of the Insurance Law, such fee shall be awarded in accordance with the limitations set forth in section 65-4.6 of this subpart. The award shall be signed by the arbitrator and shall be transmitted to the parties by the designated organization, with a copy to the Insurance Department. 

 

(2) The insurer shall provide the designated organization with the terms of settlement for transmittal to the arbitrator no later than thirty calendar days following the scheduled date of the hearing. 

 

(v) Delivery of award to parties. The parties shall accept as delivery of the award the placing of the award or a true copy thereof in the mail, addressed to the parties or their designated representatives at their last known addresses, or by any other form of service permitted by law. The designated organization shall note on such award or transmittal letter thereof the date of mailing and keep a record of same.

 

(w) Interpretation and application of procedures. The arbitrator shall interpret and apply these procedures insofar as they relate to the arbitrator’s powers and duties. All other procedures shall be interpreted by the designated organization, subject to consultation with and approval by the superintendent.

 

(x) Alternative legal remedies. The designated organization shall not be made a party to a court proceeding relating to an arbitration award unless the designated organization’s presence as a party is pertinent to the issues raised in the litigation. The participation of a party in an arbitration proceeding shall be a waiver of any claim against an arbitrator or the designated organization for any act or omission in connection with any arbitration conducted under these rules. The designated organization shall transmit to the superintendent copies of any legal papers served upon designated organization or an arbitrator, relating to any stay or appeal of an arbitration.

 

(y) Payment of award. Insurers shall, within 30 calendar days of the date of mailing of the award, either pay the amounts set forth in the award or, where grounds exist, appeal to the master arbitrator as provided for in this Part, which appeal shall stay payment of the award. The award need not be confirmed into judgment.

 

(z) Arbitrator’s compensation and expenses.  At the direction of the Superintendent, arbitrators shall contract on an annual basis with the designated organization. The rate of annual compensation shall be determined by the designated organization, after consultation with the No-Fault Arbitrator Screening Committee subject to the approval of the Superintendent. Arbitrators shall be independent contractors, and shall not be employees or agents of the designated organization or the Insurance Department.

 

(aa) Financing.

 

(1) The cost of administering the No-Fault Arbitration forum shall be paid annually by insurers (including self-insurers and MVAIC) to the designated organization upon receipt of a statement therefrom. This cost shall be distributed among insurers in an equitable manner approved by the Superintendent of Insurance. This distribution shall, to the extent practicable, be a function of the degree to which an insurer is named as a respondent in No-Fault Arbitration forum proceedings.

 

(2) Semiannually, the designated organization shall prepare a budget of the estimated fees to be incurred for the operation of the No-Fault Arbitration forum during the subsequent six-month period. The estimated fees of the No-Fault Arbitration forum shall be assessed on a proportionate basis to those insurers named as respondents on cases forwarded to No-Fault arbitration in the preceding calendar year and shall be subject to the approval of the superintendent. The designated organization shall send to each applicable insurer a bill for the amount due and any payment due shall be made to the designated organization within 30 days after billing date. 

 

(3) On an annual basis, as of December 31st of each year, the designated organization shall prepare a detailed analysis of the fees for the operation of the No-Fault Arbitration forum. This analysis shall be forwarded to the No-Fault Optional Arbitration Advisory Committee and the superintendent on or before April 30th of each year. The No-Fault Optional Arbitration Advisory Committee shall notify the designated organization and the superintendent whether it accepts or rejects the designated organization’s fee analysis in whole or in part. In the event that the designated organization and the No-Fault Optional Arbitration Advisory Committee cannot resolve any differences that may exist, such differences will be referred to the superintendent for resolution. The superintendent's decision shall be binding on the designated organization and insurers.

 

(4) Once the designated organization submits a final fee analysis that has either been approved by the No-Fault Optional Arbitration Advisory Committee or resolved by the superintendent in the event of a dispute, the designated organization shall send to each applicable insurer an accounting of the designated organization’s assessment. Any adjustment shall be made to the bill for the subsequent estimated assessment, as illustrated by the following example: 

 

EXAMPLE

 

(1) Total No-Fault Arbitration forum cases closed during year

6,000

(2) Cases in which Insurer A was named as a respondent in the

      No-Fault Arbitration forum proceeding

250

(3) Insurer A's Assessment Percentage =  (2) /(1)

4.167%

(4) Actual Expenses of the No-Fault Arbitration forum

$2,500,000

(5) Insurer A's actual expense =  (3)x(4)

$104,175

(6) Insurer A's Estimated Assessment

$102,000

(7) Insurer A's Debit or (Credit)      =(5)-(6)

$2,175

 

 

65-4.6              Limitations on attorney’s fees pursuant to section 5106 of the Insurance Law.

 

The following limitations shall apply to the payment by insurers of applicants’ attorney’s fees for services necessarily performed in the resolution of no-fault disputes:

 

(a) If an arbitration was initiated or a court action was commenced by an attorney on behalf of an applicant and the claim or portion thereof was not denied or overdue at the time the arbitration proceeding was initiated or the action was commenced, no attorney’s fees shall be granted.

 

(b) If the claim is resolved by the designated organization at any time prior to transmittal to an arbitrator and it was initially denied by the insurer or overdue, the payment of the applicant’s attorney’s fee by the insurer shall be limited as follows:

 

(1) If the resolved claim was initially denied, the attorney’s fee shall be $80.

 

(2) If the resolved claim was overdue but not denied, the attorney’s fee shall not exceed the amount of first-party benefits and any additional first-party benefits, plus interest thereon, which the insurer agreed to pay and the applicant agreed to accept in full settlement of the dispute submitted, subject to a maximum fee of $60.

 

(3) In disputes solely involving interest, the attorney’s fee shall be equal to the amount of interest which the insurer agreed to pay and the applicant agreed to accept in full settlement of the dispute submitted, subject to a maximum fee of $60.

 

(4) Notwithstanding the limitations of this subdivision, the insurer may, at its discretion, offer a higher attorney’s fee, subject to the limitations of subdivisions (d) or (e) of this section, in order to resolve the dispute during conciliation.

 

(c) Except as provided in subdivisions (a) and (b) of this section, the minimum attorney’s fee payable pursuant to this subpart shall be $60.

 

(d) For disputes subject to arbitration by the No-Fault Arbitration forum where one of the issues involves a policy issue as enumerated on the prescribed denial of claim form (NYS form N-F-10), subject to the provisions of subdivisions (a) and (c) of this section, the attorney’s fee for the arbitration of all issues shall be limited as follows:

 

(1) for preparatory services relating to the arbitration forum or court, the attorney shall be entitled to receive a fee of up to $70 per hour, subject to a maximum fee of $1,400; and 

 

(2) in addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court.

 

(e) For all other disputes subject to arbitration, subject to the provisions of subdivisions (a) and (c) of this section, the attorney’s fee shall be limited as follows:  20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850. If the nature of the dispute results in an attorney’s fee which could be computed in accordance with the limitations prescribed in both subdivision (d) and this subdivision, the higher attorney’s fee shall be payable.  However, if the insurer made a written offer pursuant to section 65-4.2(b)(4) of this Subpart and if such offer equals or exceeds the amount awarded by the arbitrator, the attorney’s fee shall be based upon the provisions of subdivision (b) of this section.

 

(f) Notwithstanding the limitations listed in this section, if the arbitrator or a court determines that the issues in dispute were of such a novel or unique nature as to require extraordinary skills or services, the arbitrator or court may award an attorney’s fee in excess of the limitations set forth in this section. An excess fee award shall detail the specific novel or unique nature of the dispute which justifies the award. An excess award of an attorney’s fee by an arbitrator shall be appealable to a master arbitrator.

 

(g) If a dispute involving an overdue or denied claim is resolved by the parties after it has been forwarded by the Insurance Department or the conciliation center to the appropriate arbitration forum or after a court action has been commenced, the claimant’s attorney shall be entitled to a fee which shall be computed in accordance with the limitations set forth in this section. 

 

(h) No attorney shall demand, request or receive from the insurer any payment of fees not permitted by this section.1

 

(i) Notwithstanding any other provision of this section and with respect to billings on and after the effective date of this regulation, if the charges by a health care provider, who is an applicant for benefits, exceed the limitations contained in the schedules established pursuant to section 5108 of the Insurance Law, no attorney’s fee shall be payable by the insurer.  This provision shall not be applicable to charges that involve interpretation of such schedules or inadvertent miscalculation or error. 

 

65-4.7              Independent health consultant.

 

(a) The designated organization shall maintain a list of independent health consultants, who will review medical evidence or examine the eligible injured person upon the request of any arbitrator designated pursuant to this Subpart.

 

(b) The independent health consultant shall be selected by the designated organization from its list and, to the extent practicable, shall be a specialist in the field requested by the arbitrator. If a medical examination is requested by the arbitrator, such examination shall be conducted at the health consultant’s office, which shall be located in the general locale of the applicant’s residence, or at a place agreed upon by the parties and the consultant. 

 

(c) Within 15 calendar days after the review of medical evidence or examination of the eligible injured person, the health consultant shall submit to the designated organization a written report which shall contain the consultant’s advisory opinion for consideration by the arbitrator. The designated organization shall submit such report to the arbitrator and the parties. 

 

(d) The independent health consultant’s fee shall include the written report and be paid by the designated organization, with the cost of such fee charged as an administrative expense of the No-Fault Arbitration forum. 

 

1Attorneys should be aware of the Appellate Division Rules prohibiting fees in connection with the collection of first-party no-fault benefits (22 NYCRR 603.7 (e)(7), 691.20 (e)(7), 806.13(f), and 1022.3(f)).

 

(e) No person shall serve as an independent health consultant in any arbitration in which such person has any financial or personal interest or bias. An independent health consultant shall disclose to the designated organization any circumstance which is likely to create an appearance of bias or which might serve to disqualify such expert. Upon receipt of such information, the designated organization shall immediately disclose it to the parties. If a party challenges a health consultant, the specific grounds for the challenge shall be submitted in writing. The designated organization shall determine whether the health consultant should be disqualified and shall inform the parties of its decision, which shall be final and binding. If a health consultant should resign, be disqualified or be otherwise unable to perform necessary duties, the designated organization shall appoint another health consultant to the case. 

 

65-4.8              Witness fees.

 

(a) No witness fee shall be payable to a person who is a party to the arbitration.

 

(b) The arbitrator shall not approve the payment of a fee to a witness appearing on behalf of an applicant or an assignee, unless the witness was subpoenaed by the arbitrator or, prior to appearance, the witness’s presence was determined by the arbitrator to be necessary for resolution of the dispute.

 

(c) Whenever a witness fee is determined by the arbitrator to be payable, the cost thereof shall be charged as an administrative expense of the arbitration forum.

 

(d) Any witness fee awarded pursuant to subdivisions (b) and (c) of this section shall be determined as follows:

 

(1) If the witness is testifying as an expert, the fee shall be calculated on the basis of such witness’s documented usual and customary hourly charge for an appearance, plus necessary verified disbursements. 

 

(2) Any other witness shall only be entitled to reimbursement for verified expenses and economic losses necessarily incurred in connection with an appearance before the arbitrator. 

 

65-4.9              Serving of Notice

 

The IDA, the designated organization and the Parties may use facsimile transmission, telex, telegram or other written or electronic forms of communication to give the notices required by this subpart.

 

65-4.10            Master arbitration procedures under section 5106(b) of the Insurance Law.

 

 

(a) Grounds for review.  An award by an arbitrator rendered pursuant to section 5106(b) of the Insurance Law and section 65-4.4 or section 65-4.5 of this Subpart may be vacated or modified solely by appeal to a master arbitrator, and only upon one or more of the following grounds:

 

(1) any ground for vacating or modifying an award enumerated in article 75 of the Civil Practice Law and Rules (an article 75 proceeding), except the ground enumerated in CPLR subparagraph 7511(b)(1)(iv) (failure to follow article 75 procedure);

 

(2) that the award required the insurer to pay amounts in excess of the policy limitations for any element of first-party benefits; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of an appeal, as provided for in section 65-4.4 or section 65-4.5 of this Subpart;

 

(3) that the award required the insurer to pay amounts in excess of the policy limitations for any element of additional first-party benefits (when the parties had agreed to arbitrate the dispute under the additional personal injury protection endorsement for an accident which occurred prior to January 1, 1982); provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or section 65-4.5 of this Subpart; 

 

(4) that an award rendered in an arbitration under section 65-4.4 or section 65-4.5 of this Subpart, was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground);

 

(5) that the attorney’s fee awarded by an arbitrator below was not rendered in accordance with the limitations prescribed in section 65-4.6 of this Part; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or section 65-4.5 of this Subpart.

 

(b) Qualifications of master arbitrators.

 

(1) A master arbitrator shall be an attorney, licensed to practice law in New York State, who has at least 15 years’ experience which the superintendent has determined qualifies such attorney to review and resolve the issues involved in no-fault insurance disputes. Documentation of such experience shall be submitted to, and reviewed by, the superintendent prior to appointment of a master arbitrator. 

 

(2) All master arbitrators shall be appointed by, and serve at the pleasure of, the superintendent. A master arbitrator candidate shall disclose to the superintendent any circumstance which is likely to create an appearance of bias or which might disqualify such person as a master arbitrator, and the superintendent shall determine whether the candidate should be disqualified. The superintendent shall forward the names of all master arbitrators to the designated organization, and promptly inform it of all additions to, and deletions from, the panel.

 

(3) No person shall, during the period of appointment as a master arbitrator, also serve as an arbitrator under the optional arbitration systems prescribed in section 5106(b) of the Insurance Law and section 65-4.4 or section 65-4.5 of this Subpart, nor serve as an attorney to a party to any such arbitration.

 

(4) All master arbitrators shall take an oath of office. 

 

(5) No person shall serve as a master arbitrator in any master arbitration in which such person has any financial or personal interest or bias. If a party challenges a master arbitrator, the specific grounds for the challenge shall be submitted in writing to the designated organization which, in consultation with the superintendent, shall determine within 15 calendar days after receipt of the challenge whether the master arbitrator should be disqualified. Such determination shall be final and binding. If a master arbitrator should resign, be disqualified or be otherwise unable to perform necessary duties, the designated organization shall assign another master arbitrator to the case within seven calendar days after receipt of notice thereof.

 

(c) Scope of master arbitration review.

 

 (1) Review by a master arbitrator shall be based solely on submitted documents, including any record made of the arbitration below, unless a master arbitrator requires oral argument on specified issues. 

 

(2) Legal briefs shall not be submitted, unless requested by the master arbitrator.

 

(3) The master arbitrator shall initially consider and determine whether the facts alleged in the submitted documents set forth a ground for review pursuant to subdivision (a) of this section. 

 

(4) If the master arbitrator determines that subdivision (a) of this section has not been complied with, the master arbitrator shall, in lieu of rendering an award, deny the request for review. The procedural requirements contained in this section applicable to a master award, shall also be applicable to a denial of request for review, but such denial shall not form the basis of an action de novo within the meaning of section 5106(b) of the Insurance Law.

 

(5) If the master arbitrator determines that subdivision (a) of this section has been complied with, the master arbitrator shall proceed to review the matter and render an award accordingly.

 

(6) The master arbitrator shall only consider those matters which were the subject of the arbitration below or which were included in the arbitration award appealed from. 

 

(d) Procedure for review.

 

(1) If grounds exist, pursuant to subdivision (a) of this section, any party to an arbitration may request that the arbitration award be vacated or modified by a master arbitrator.

 

(2) The request for review by a master arbitrator shall be in writing and shall be mailed or delivered to the  designated organization’s Master Arbitration administrative office  within 21 calendar days of the mailing of the award.  The request shall include a copy of the award in issue and shall state the nature of the dispute and the grounds for review. A request by an applicant for benefits shall be accompanied by a filing fee of $75, payable by check or money order to the designated organization.  A request by an insurer shall be accompanied by a filing fee of $325, payable by check or money order to the designated organization.  The failure of a party to enclose the appropriate filing fee with a timely request for review shall result in a denial of the request for review by a master arbitrator if such payment is not made within 28 calendar days of the mailing of the award.

 

(3) The applicant for master arbitration review shall send, by certified mail, a copy of its filing papers to the opposing party at the same time that it submits the request for review to the designated organization.

 

(4) Within seven calendar days of receipt of the request, the designated organization shall assign a master arbitrator, selected in sequence from a panel of master arbitrators appointed by the superintendent, and shall forward to the master arbitrator a copy of the request for review.

 

(5) The master arbitrator shall render an award no later than 90 calendar days after assignment.

 

(i) Submission of materials. Within 15 calendar days after assignment, the master arbitrator shall set a date (which date shall not be more than 45 calendar days after assignment) by which all evidence, documents and briefs, if any, must be submitted to the master arbitrator by the parties. The master arbitrator shall give the parties 30 calendar days’ written notice of this date.

 

(ii) Oral argument. If after receipt of these materials, the master arbitrator determines that oral argument on specific issues is necessary, the master arbitrator shall give the parties 10 calendar days’ notice of the place, time and date for oral argument and the issues to be argued. Oral argument shall be conducted at the office of the master arbitrator, the office of the designated organization or at a location agreeable to the parties and the master arbitrator. 

 

(iii) The master arbitrator may postpone or adjourn the date for submission of materials or of oral argument to a date within the 90-day period for good cause shown. A postponement or adjournment shall also be granted when all the parties agree thereto. The postponement or adjournment shall not extend the 90-day period for rendering of an award. 

 

(6) The failure of a master arbitrator to adhere to the procedural time frames, contained in paragraph (5) of this subdivision, shall not affect the validity of an award.

 

(7) Any party may be represented in a master arbitration by an attorney.

 

(8) A master arbitration shall proceed if any party, after due notice of the date to submit materials or date of oral arguments, fails to appear, to submit materials or to obtain a postponement or adjournment. However, an award shall not be made in favor of an appearing party solely on the text_con of another party. A master arbitrator shall direct the appearing party to submit such materials as may be required in order to render a decision in the matter.

 

(e) Award by master arbitrator.

 

 (1) Form and scope of award. 

 

(i) The award shall be in writing in a format approved by the superintendent. It shall state the issues in dispute and contain the master arbitrator’s findings and conclusions based on the materials submitted. It shall be signed by the master arbitrator and shall be transmitted to the parties by the designated organization, with a copy to the Insurance Department. The award shall be determinative of all issues submitted to the master arbitrator by the parties.

 

(ii) If the applicant for benefits prevails in whole or part on the claim, the award shall also direct the insurer to:

 

(a) if the applicant requested review by a master arbitrator, pay to the applicant reimbursement of the amount of the master arbitration filing fee paid;

 

(b) pay to the applicant the amount previously paid by the applicant to reimburse for the filing fee in the arbitration below, unless the filing fee had already been returned to the applicant pursuant to an earlier award;

 

(c) if due under section 5106 of the Insurance Law, pay a reasonable attorney’s fee in accordance with the limitations set forth in subdivision (j) of this section;

 

(d) if due, compute and pay the amount of interest for each element of first-party benefits in dispute, commencing 30 days after proof of claim therefor was received by the insurer and ending with the date of payment of the award, subject to the provisions of section 65-3.9(c) and (d) of this Part (stay of interest).

 

(2) Award upon settlement. If the parties settle their dispute during the course of the master arbitration, the master arbitrator shall set forth the terms of the agreed settlement in an award which shall provide that the parties agree that the settlement is final and binding and shall not be subject to review by a court or the subject of a de novo court action. The award shall be signed by the master and shall be transmitted to the parties by the designated organization, with a copy to the Insurance Department.

 

(3) Delivery of award to parties. The parties shall accept as delivery of the award the placing of the award or a true copy thereof in the mail, addressed to the parties or their designated representatives at their last known addresses, or by any other form of service permitted by law. The designated organization shall note on such award or transmittal letter thereof the date of mailing and keep a record of same.

 

(4) Payment of award. Subject to subdivision (h) of this section, the insurer shall, within 21 calendar days of the date of mailing of the award, pay the amounts set forth in the award. The award need not be confirmed into judgment.

 

(f) Interpretation and application of procedures. The master arbitrator shall interpret and apply the procedures of this section insofar as they relate to the master arbitrator’s powers and duties. All other procedures shall be administered by the designated organization, subject to consultation with and approval by the superintendent. 

 

(g) Alternative legal remedies.  The designated organization or the master arbitrator shall transmit to the superintendent copies of any legal papers served upon the designated organization, or the master arbitrator, relating to any stay or appeal of a master arbitration.

 

(h) Appeal from master arbitrators award.

 

(1) A decision of a master arbitrator is final and binding, except for:

 

(i) court review pursuant to an article 75 proceeding; or

 

(ii) if the award of the master arbitrator is $5,000 or greater, exclusive of interest and attorney’s fees, either party may, in lieu of an article 75 proceeding, institute a court action to adjudicate the dispute de novo.

 

(2) A party who intends to commence an article 75 proceeding or an action to adjudicate a dispute de novo shall follow the applicable procedures as set forth in CPLR article 75. If the party initiating such action is an insurer, payment of all amounts set forth in the master arbitration award which will not be the subject of judicial action or review shall be made prior to the commencement of such action.

 

(i) Master arbitrator’s fee. The master arbitrator shall be compensated in the amount of $250 for each case. Such fee will be paid by the designated organization. The master arbitrator’s fee shall be charged to the cost of administering the master arbitration system.

 

(j) Limitations on attorney’s fees pursuant to section 5106 of the Insurance Law.  The following limitations shall apply to the payment by insurers of applicant’s attorney’s fees for services rendered in a master arbitration to resolve a no-fault dispute:

 

(1) The minimum attorney’s fee payable pursuant to this subpart shall be $60.

 

(2)

 (i) For preparatory services necessarily rendered, the attorney shall be entitled to receive a fee of up to $65 per hour, subject to a maximum fee of $650. 

 

(ii) An attorney shall be entitled to receive a fee of up to $80 per hour for oral argument before the master arbitrator, made pursuant to paragraph (c)(1) of this section. 

 

(iii) If an applicant is successful in obtaining a reversal of the arbitration(s) below, wherein no attorney’s fee was awarded, the attorney in the arbitration below shall also be entitled to receive a fee, computed in accordance with the provisions of section 65-4.6 of this Subpart.

 

(3) Notwithstanding the above limitations, if the master arbitrator determines that the issues in dispute were of such a novel or unique nature as to require extraordinary skills or services, the master arbitrator may award an attorney’s fee in excess of the limitations set forth above. An excess fee award shall detail the specific novel or unique nature of the dispute which justifies the award.

 

(4) The attorney’s fee for services rendered in connection with a court adjudication of a dispute de novo, as provided in section 5106(c) of the Insurance Law, or in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter.

 

(5) No attorney shall demand, request or receive from the insurer any payment or fee in excess of the fees permitted by this subdivision for services rendered with respect to a no-fault master arbitration dispute.

 

(k) Financing.

 

(1) The cost of administering the master arbitration system over and above the amount of fees paid by applicants and insurers shall be paid annually by insurers to the designated organization upon receipt of a statement therefrom. This cost shall be distributed among insurers in an equitable manner approved by the superintendent. This distribution shall, to the extent practicable, be a function of the degree to which an insurer is a party to arbitration proceedings.

 

(2) Upon filing of a demand for master arbitration by an applicant, the designated organization shall bill the respondent insurer the sum of $250, which shall be payable by the insurer within 30 days after billing.

 

(3) On an annual basis, as of December 31st of each year, the designated organization shall prepare a detailed accounting of the actual costs incurred for the implementation of the master arbitration system and the amount of fees received from applicants and insurers. The accounting will be forwarded to the No-Fault Optional Arbitration Advisory Committee (the committee) and the superintendent on or before April 30th of each year. The committee shall notify the designated organization and the superintendent whether it accepts the designated organization’s accounting in whole or in part. In the event the designated organization and the committee cannot resolve any differences that may exist, the dispute will be referred to the superintendent for resolution. The superintendent’s decision shall be binding on the designated organization and insurers.

 

(4) Once the designated organization submits a final accounting that has either been approved by the committee or resolved, in the event of a dispute, by the superintendent, the designated organization shall send to each insurer a bill for the amount due or a refund for the amount credited, based upon the number of master arbitrations to which the insurer was a party. 

 

65-4.11            Mandatory arbitration for insurers, self-insurers and compensation providers under section 5105 of the Insurance Law. 

 

 (a) Applicability.

 

(1) This section shall apply to mandatory arbitration of controversies between insurers, pursuant to the provisions of section 5105 of the Insurance Law, and shall apply to insurers, self-insurers and compensation providers. The term insurer as used in this section (except as specified in paragraphs (c)(2) and (f)(1) of this section) shall include both “insurers” and “self-insurers” as those terms are defined in this Part and article 51 of the Insurance Law; the Motor Vehicle Accident Indemnification Corporation (MVAIC); any company providing insurance pursuant to section 5103(g) of the Insurance Law; and compensation providers as defined in section 5102(l) of the Insurance Law.

 

(2)  All insurers shall submit controversies arising out of accidents, insured events or occurrences within the jurisdiction of section 5105 or 5221(b) of the Insurance Law to mandatory arbitration, as prescribed in this section. Controversies arising from accidents, insured events or occurrences outside the jurisdiction of section 5105 or 5221(b) may be submitted with the consent of the controverting insurers.

 

(3) Any determination as to whether an insurer is legally entitled to recovery from another insurer shall be made by an arbitration panel (see paragraph (c)(2) of this section) appointed pursuant to this section. The decision of a majority of an arbitration panel shall be final and binding upon the insurers to the controversy. There shall be no right of rehearing or appeal.  However, this provision does not preclude correction of clerical or typographical errors. 

 

(4) Where arbitrating insurers are signators to any insurer arbitration program under which a claim or companion claims would be otherwise subject to the compulsory jurisdiction of such agreements, the jurisdiction of this section shall be primary. Insurers shall waive their rights to proceed separately under such other arbitration programs and include all claims arising out of the same accident or insured event for disposition by an arbitration panel appointed pursuant to this section.

 

(5) This section is applicable only to controversies involving insurers.

 

(6) Other than claims asserted by MVAIC against an insurer, this section shall not apply to any claim for recovery rights to which an insurer in good faith asserts a defense of lack of coverage of an alleged covered person on any grounds, unless specific written consent of mandatory arbitration is obtained from the insurer asserting such defense. Where an insurer asserts a defense of lack of coverage of an alleged covered person on any grounds relating to claims asserted by MVAIC for recovery rights, same shall be subject to mandatory arbitration. However, any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority or payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.

 

(7) This section shall not be construed to create any causes of action or liabilities not existing in law or equity, nor shall this section be construed to abolish any causes of action or liabilities existing in law or equity. 

 

(b) Administration of arbitration.

 

(1) The arbitration prescribed in this section shall be administered by an Inter-Company Arbitration administrator “Administrator” designated by the Superintendent.  The Administrator may:

 

(i) make appropriate administrative rules for arbitrations;

 

(ii) select places where arbitration facilities are to be available, and adopt a policy for the selection and appointment of arbitration panels; and

 

(iii) make appropriate recommendations for equitable apportionment among arbitrating insurers of the operating expenses of this program.

 

(2) Local arbitration panels.

 

(i) Members of local arbitration panels shall be appointed by the Administrator from full-time salaried representative of insurers, on the basis of their experience and qualifications, and shall serve without compensation.

 

(ii) The Administrator shall be responsible for the selection of arbitration panels to hear the particular cases.

 

(c) Selection of arbitrators.

 

(1) Insurers shall furnish the Administrator with a list of names, titles and local addresses of all employees who are qualified to act as arbitrators.

 

(2) The Administrator shall designate one disinterested member of such panel to serve as an arbitrator in each case. However, an insurer may request a three-member arbitration panel in a specific case. If one or more of the controverting parties is a self-insurer which has requested a three-member panel, then the self-insurer may also request that at least one member of the panel be a disinterested representative of a self-insurer, where such representative is available to serve on the panel.

 

(3) No one shall serve as an arbitrator on a panel hearing a case in which the insurer represented by the arbitrator is directly or indirectly interested.

 

(d) All arbitrations under this Subpart shall be conducted in accordance with procedures established by the Administrator and approved by the superintendent.

 

(e) Filing assessments.

 

(1) The Administrator, by resolution, will recommend the filing assessment for the use of local arbitration facilities. The expenses of the program shall be periodically reviewed by the loss transfer advisory committee (see subdivision (f) of this section), which shall consider the recommendations of the Administrator and prescribe from time to time arbitration assessments.

 

(2) The obligation for the prescribed filing assessment is incurred upon filing by the applicant, by a respondent filing a counterclaim or by a party filing a deferment.  There are no exceptions to an insurer’s obligation to pay the filing assessment.

 

(3) The secretary of the Administrator is the custodian of the assessment charges collected and shall make expenditures therefrom to defray such arbitration expenses as may be authorized by the Administrator.

 

(4) The secretary of the Administrator will submit reports on assessments collected and disbursed during such period as may be considered desirable by the Administrator.

 

(f) Loss transfer advisory committee.

 

(1) The superintendent shall select a loss transfer advisory committee composed of 14 members, of which eight shall represent motor vehicle insurers, three shall represent motor vehicle self-insurers, two shall represent compensation providers and one shall represent the Motor Vehicle Accident Indemnification Corporation.

 

(2) The loss transfer advisory committee shall:

 

(i) regularly review the operations, procedures, rules, expenditures, assessments and all other relevant matters involving settlements between insurers in accordance with the requirements of section 5105 or 5221(b) of the Insurance Law;

 

(ii) review the operations of the Administrator insofar as they relate to the arbitration prescribed in this section; and

 

(iii) report its findings, conclusions and recommendations directly to the superintendent annually and at such other intervals as it deems appropriate.

 

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