Last edition we talked about ‘Company Guidelines’… a term advocates will often invoke in their Contentions tied to Material Damage presentation. Another often seen phrase in these type of disputes is ‘Industry Standard’ (i.e. – the repairs we performed were in accordance with ‘industry standards’). But what does that mention mean to an Arbitrator? By definition, ‘Industry Standards’ are a set of criteria within a trade relating to the standard functioning and carrying out of operations within their fields of production. It is the generally accepted requirements followed by the members of an industry. But here’s the thing…for an Arbitrator to accept (in whole or in part) application of an industry standard advocates need keep in mind that the Arbiter may be cognizant of the fact that ‘standards’ are often developed through committee in what is known as a De Jure standard. It is from actual claims practice that the standard was developed. And (importantly) not all carriers in the industry may have been involved in the creation of the standard; endorsed it or had even wanted standardization. In fact, some companies may opt to compete with it for their own business reasons or not adhere to it at all. So what’s an advocate to do if not everyone follows the ‘Industry Standard’ ? First and foremost; be sure to define what the Industry Standard is and provide Documentary Evidence that supports that. Secondly, speak to why the Industry Standard is applicable in your case based on the fact pattern. Finally, be certain your reference of the Industry Standard follows logically with your Damages argument. Remember, a trademark for Arbitrator’s is following logical sequence. Lead the Arbitrator through the logical application for use of the ‘Industry Standard’ to the Award you seek.
Case Presentation 101 is produced by Claims Resource Services; one of the nations top arbitration and subrogation services firms. The writer Kevin Pike can be reached at kpike@claimsresource.com and has daily tips on arbitration via Twitter: @Arb2Win
