The insureds state they were absolutely certain they saw the driver across the intersection “waive them through” to make a left turn before the collision. Based on that statement coupled with photos of the damage to the insured's vehicle and a witness who alleges the tortfeasor was speeding through a red light, you are confident you will prevail on liability when this subrogation file goes to intercompany arbitration.

While seeming like a sure win before the arbitration panel, this scenario sets the stage for what every claims professional needs to think about to win intercompany arbitration cases; it is not so much what you believe occurred or what the insured said, but what can actually be proved. It takes a special skill set to appreciate and highlight proofs in support of a theory in concert with an ability to overcome any challenges with problem evidence that sets the stage for success. If there was not competing evidence or conflicting fact patterns, why is this claim in arbitration?

Cases are won in arbitration based on the evidence presented, complimented by a persusasive written narrative (known as contentions) that urges the arbitrator/panelist to accept a theory. Police reports, witness and insured statements, and even aerial photos of the loss location are all types of evidence which may be submitted in intercompany arbitration. This article will discuss evidence methodology on both the applicant (recovery) and respondent (defense) side of claims.