N.Y. Comp. Codes R. & Regs. Tit. 11 §§ 65-4.11

Current through Register Vol. 46, No. 45, November 2, 2024

Section 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 sections 5105 and 5106 (d) 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) Except as provided in section 65-3.12(b)(3) and (4) of this Part, all insurers shall submit controversies arising out of accidents, insured events or occurrences within the jurisdiction of section 5105, 5106 (d), 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, 5106 (d), or 5221 (b) of the Insurance Law 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.

N.Y. Comp. Codes R. & Regs. Tit. 11 §§ 65-4.11

Amended New York State Register October 25, 2017/Volume XXXIX, Issue 43, eff. 10/25/2017

Amended New York State Register February 8, 2023/Volume XLV, Issue 06, eff. 2/8/2023