ARBITRATION IN UNINSURED AND UNDERINSURED MOTORIST DISPUTES IN UTAH (PART I: INITIAL DISCLOSURES AND IDENTIFYING HEALTH CARE PROVIDERS)
One thing both plaintiff’s attorneys and defense attorneys can agree upon is that all drivers should get ample and significant Uninsured Motorist (UM) and Underinsured Motorist (UIM) insurance coverage. These insurance provisions add extra layers of protection for parties injured in automobile accidents, and can help ensure that the injured party is more fully compensated for their injuries.
In recent years, as the court system has become increasingly backlogged, the Utah Legislature has turned to alternative dispute resolution (ADR) procedures to resolve disputes. I’ve discussed one recent attempt to introduce arbitration to torts actions, S.B. 52. Today, I’ll begin an examination of the arbitration procedures established for UM and UIM cases. Specifically, I will look at the reporting requirements of U.C.A. §§ 31A-22-305(9)(b), -305(9)(c), -305.3(8)(b) and -305.3(8)(c). These provisions outline the initial disclosures required by plaintiffs in UM/UIM cases, and the process of identifying health care providers and collecting health care records.
Brief Overview of New Regulations Regarding Arbitration Added in 2010
In 2010, the legislature made significant changes to U.C.A. §§ 31A-22-305 and 31A-22-305.3, the sections dealing with arbitration procedures in UM and UIM claims. These new provisions outline the procedures that both the plaintiff and the UM or UIM carrier must follow in both arbitration and litigation.
In 2010, the Utah Legislature amended U.C.A. §§ 31A-22-305 and 31A-22-305.3, adding subsections 305(9) and 305.3(8). These provisions are virtually identical, and address the following issues related to arbitration claims: (1) the initial disclosures required by the plaintiff; (2) the process of identifying health care providers and collecting health care records; (3) the insurance carrier’s obligations regarding the arbitration process; (4) the options available to the plaintiff after receiving the insurance carrier’s response; (5) the limitations to any final arbitration or litigation award; and (6) the submission of the final affidavit of costs.
These provisions apply whether the plaintiff elects to arbitrate or litigate, and puts the initial burden on the plaintiff to have the main elements of the case established from the outset. They apply to all motor vehicle accidents that occur on or after March 30, 2010.
Initial Disclosures Required by Covered Person (U.C.A. §§ 31A-22-305(9)(b) and 31A-22-305.3(8)(b))
Within 30 days of the election to arbitrate or litigate, the plaintiff must provide the UM or UIM insurance carrier with the following disclosures:
- A written demand for payment of the UM or UIM coverage benefits. This demand must set forth the monetary amount of the demand and the factual and legal basis for the demand, with supporting documentation.
- A written statement under oath, disclosing information concerning the plaintiff’s injury and damages claims:
- Names and last known addresses of all health care providers who have provided health care services to the plaintiff related to the UM or UIM claim for a period of five years preceding the date of the accident up to the time the plaintiff elected to arbitrate or litigate the claim;
- Whether the plaintiff has seen other health care providers for health care services unrelated to the UM or UIM claim during the same period that have not been disclosed;
- Names and last known addresses of all health care insurers or other entities to whom the plaintiff has submitted claims for health care services or benefits related to the UM or UIM claim for the same period of time;
- Whether the identity of any health insurers or other entities to whom the plaintiff has submitted claims for health care services or benefits unrelated to the UM or UIM claim during the same period have not been disclosed;
- All employers of the plaintiff for a period of five years preceding the date of the accident up to the time the plaintiff elected to arbitrate or litigate the claim (if lost wages, diminished earning capacity or similar damages are claimed);
- Other supporting documentation; and
- All state and federal statutory lienholders, including a statement as to whether the plaintiff is a recipient of Medicare or Medicaid benefits, Utah Children’s Health Insurance Program benefits, or any other applicable state or federal statutory liens.
- Signed authorizations allowing the UM or UIM carrier to obtain records and billings from the individuals or entities disclosed.
Identifying Health Care Providers and Collecting Health Care Records (U.C.A. §§ 31A-22-305(9)(c) and 31A-22-305.3(8)(c))
As stated above, the plaintiff must make initial disclosures of all health care providers and claims that are relevant to the UM or UIM claim, and state whether there are undisclosed health care providers and claims that are allegedly immaterial to the UM or UIM claim. If the UM or UIM insurance carrier determines that it is necessary to identify and disclose these undisclosed health care providers and claims, the carrier may make a request for the disclosure of the identities of the health care providers and insurers, and may make a request for authorizations to allow the carrier to obtain records and billings from the individuals or entities not disclosed.
If the plaintiff does not provide the requested information or authorizations within ten days, the plaintiff is required to disclose, in writing, the factual or legal basis for the failure to disclose the information or authorizations. Either party may request that the arbitrator or arbitration panel resolve the issue. The time period for the insurance carrier to respond to the demand letter (discussed below) is tolled pending the resolution of this dispute.
Neophyte Lawyer’s Thoughts
I’ll save my full review of these provisions until I finish the entire discussion. But I do feel that it is important for attorneys and their clients, whether plaintiff or defendant, to have as many tools available to help them resolve their disputes. Although some attorneys are reluctant to pursue arbitration, it can be a useful option in certain situations.