The growing use of binding, pre-dispute arbitration clauses poses a huge threat to insurance consumers. It represents a major shift in the balance of power between insurers and consumers that must be addressed by state legislators and insurance regulators.
Background: How Arbitration Differs From Litigation
Arbitration is a form of alternative dispute resolution (ADR). Its original purpose was to provide a swift and informal means of adjudicating disputes between businesses. Its use has also been customary in fixing the amount of loss for purposes of property damage, uninsured motorist and no-fault automobile coverage.
Unfortunately, in recent years businesses have realized that binding, pre-dispute arbitration clauses can be used to gain an unfair advantage in fighting lawsuits by consumers and workers. It now appears that some insurance companies have begun using the clauses to immunize themselves from suits over bad faith claims settlement practices, consumer fraud, and denials of treatment in managed care.
The advantage a company may gain comes from five unique characteristics of arbitration:
High costs. While the court system is publicly subsidized, arbitration is not. In fact, the costs of litigating in a private court system are very steep. Typically, filing fees in arbitration cases range between $750 and $3,000. Arbitrators hourly fees, which must be deposited in advance, amount to thousands of dollars more. These costs raise an insurmountable barrier for most litigants, who usually are financially distressed because of the same incident that gave rise to their legal problem. The result is that claims that could have been asserted in court must be abandoned.
Arbitrator bias. Arbitrator bias results from two features of the system. First, the potential for receiving “repeat business” provides an incentive for arbitrators to favor companies that are frequent users of the system. Arbitrators who issue high awards or rule for plaintiffs in close cases can be and have been blackballed from future cases. Second, most arbitration panels include representatives of the industry being sued. Needless to say, people having such sympathy for defendants would never be included on a jury. As a result, arbitration awards tend to be a fraction of what juries award in comparable cases.
Unavailability of class actions. Class actions are extremely important in remedying nickel-and-dime cheating by businesses. It is not feasible for consumers to recover small-scale overcharges in individual proceedings. This means that pro-consumer laws such as the Real Estate Settlement Procedures Act, which bans kickbacks in mortgage transactions, are harder to use in combating frauds such as “packing” of credit life insurance policies by predatory lenders. Insulation from class actions gives unscrupulous insurers a license to steal in small increments.
Unavailability of discovery. Discovery is the procedure by which parties to a lawsuit obtain information from each other and from third parties. Discovery is especially important to consumer plaintiffs who need access to business records to prove their cases. While discovery is a right in court proceedings, in arbitration it is a privilege granted at the discretion of the arbitrator. Moreover, arbitrators have no authority to order non-parties to comply with subpoenas, often requiring the filing of a court case which arbitration is supposed to make unnecessary.
Finality. It is nearly impossible to appeal an arbitration ruling, even if an arbitrator ignores the law. Not only can this lead to unfairness in individual cases, but it also prevents the law from evolving in response to new problems.
How Arbitration Clauses Threaten the Protection of Insurance Consumers
There are three primary areas in which arbitration abuses arise in the insurance context.
Bad Faith Claims Settlement Practices
Lawsuits over “bad faith” or unfair claim settlement practices play an important role in protecting insurance consumers. Often an insurance company will “low-ball” claimants or unreasonably delay or deny claims. Some disreputable insurers do this on a regular basis. The “bad faith” lawsuit remedies such practices, by requiring the insurer to pay punitive damages and/or attorney s fees in addition to the amount of the claim. Raising the stakes in this manner is a crucial deterrent to insurer misconduct.
The case of Southern United Fire Insurance Company v. Pierce, 775 So.2d 194 (Ala. 2000) demonstrates how an insurance company may draft an arbitration clause to insulate itself from damages for bad faith refusals to pay claims. The clause they used required panels of three arbitrators, tripling the fees that the consumer must pay to have his case heard. The clause also prohibited the arbitrators from allowing discovery of “evidence relating in any way to a transaction other than the [consumer s] specific transaction.” This restriction makes it impossible to prove that the company engaged in a pattern of improper denials of claims, a crucial element of establishing a case for bad faith activity.
Managed Care
The second area in which arbitration threatens insurance consumers is managed care. As states have slowly begun to impose liability upon HMOs for arbitrary denials of treatment, and Congress seems poised to allow liability for ERISA health plans, insurers have begun imposing arbitration clauses upon patients. Unless Congress prohibits HMOs from requiring arbitration, Patients Bill of Rights legislation may be rendered toothless.
Even under current law, HMOs can be liable for medical malpractice committed by the doctors they employ. The table below compares medical malpractice awards in Kaiser Permanente s arbitration program in California to jury verdicts. As the table clearly shows, by any measure, injured patients receive far less compensation from arbitrators than they do from courts.
Medical Malpractice Awards: Arbitration versus Litigation