Securing an Unbiased
Arbitrator
Kelly Sofio, attorney at Oskie, Hamilton & Sofio, P.A.
and
David Larrabee, Senior Risk Management Analyst at the Metropolitan Council
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Respect the Strike List!
• Never, ever, ever, ever, ever, ever miss that
strike list submission deadline
• Rank strategically
• Prior results are perhaps the single most
important factor
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Arbitrator “Results” Lists
• MDLA has a great list
• All counsel practicing in the no-fault arena
should have access to MDLA’s list or have their
own list
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Lucky you, you got your #3 choice
• Call opposing counsel and agree to choose
your OWN arbitrator or Appeal
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
AAA Rule 10
Qualification of Arbitrator and Disclosure Procedure
(b) No person shall serve as an arbitrator in any arbitration in which he or she has a financial or
personal conflict of interest. Under procedures established by the Standing Committee and
immediately following appointment to a case, every arbitrator shall be required to disclose any
circumstances likely to create a presumption or possibility of bias or conflict that may disqualify
the person as a potential arbitrator.
Every arbitrator shall supplement the disclosures as circumstances require.
*The fact that an arbitrator or the arbitrator's firm represents automobile accident claimants
against insurance companies or self-insureds, including the respondent, does not create a
presumption of bias.
*It is a financial conflict of interest if, within the last year, the appointed arbitrator or the
arbitrator's firm has been hired by the respondent to represent the respondent or
respondent's insureds in a dispute for which respondent provides insurance coverage.
*It is a financial conflict of interest if the appointed arbitrator is aware of having received
referrals within the last year from officers, employees or agents of any entity whose bills are
in dispute in the arbitration or the arbitrator's firm has received such referrals and the
arbitrator is aware of them.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Carefully review that disclosure and
investigate your new arbitrator.
• Does the disclosure match what you know?
• Does the arbitrator have active cases against your
client? Have they disclosed as such?
• Have you just finished a contentious case with
your new arbitrator?
• Do you know that this arbitrator has represented
clients who treated at the provider at issue in the
past?
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
To appeal, or not to appeal?
To get the process moving, you have to start
with the AAA. The AAA has strict constraints in
which they must operate. They can only remove
based on the current Rule 10.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Appeal up the chain.
• AAA will always affirm if you are appealing on
Rule 10 (the arbitrator or arbitrator’s firm has
an active case against my client) as this is
expressly found to be “not a presumption of
bias.”
• Standing Committee will affirm as well, in line
with new Rule 10.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
AAA and Standing Committee do not
find grounds for removal. What to do?
• You have the authority to move the “removal” issue to district
court.
Minn. Stat. §572.10, Subd. 2 (c)(1) gives a party the right to go to
district court to have a judge determine if an arbitrator may sit on
a case:
After a neutral arbitrator has been selected, any relationship,
conflict of interest, or potential conflict of interest that arises must
be immediately disclosed by the arbitrator in writing to all parties,
and a party may move the district court or the arbitration tribunal
for removal of the neutral arbitrator.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
But why do district court judges
disagree with Rule 10?
Pirsig v. Pleasant Mount Mut. Fire Ins. Co.,
512 N.W.2d 342, 344 (Minn.Ct.App. 1994)
A party to an arbitration is entitled to a fair
arbitration. It is not enough that the
arbitrators be unbiased; they must not appear
to be biased.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Cochran v. Metropolitan Council
Judge John Sommerville
• Arbitrator was removed because he had
current cases against the Respondent. Judge
Sommerville felt it was a conflict and evidence
of evident partiality
• Plaintiff tried to appeal but it was dismissed.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Coty v. Metropolitan Council
Judge Deborah Hedlund
• Rule 10 did not preclude a finding of bias or
conflict of interest.
• An arbitrator with cases against the
Respondent was a conflict.
• Public policy favors removal so that the parties
can be confident in getting a fair hearing.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
St. Julien v. Metropolitan Council
Judge Lloyd B. Zimmerman
• The AAA arbitrator must be compared to a judge.
There is NO reason to have arbitrators have any
different standards than those of judges and
jurors.
• The judge was not swayed by the argument that
no plaintiff’s counsel could serve with this ruling,
stating “there would be no shortage of lawyers in
MN who could fill the task of arbitrator.”
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Selmon v. Metropolitan Council
Judge Susan Burke
• Statements about IME’s on the arbitrator’s
website showed bias.
• As a rule, just Google!
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Miranda v. Metropolitan Council
Judge John Sommerville
• Judge Sommerville indicated at the hearing
that he was going to remove the arbitrator in
this case as he had before, so Plaintiff’s
counsel withdrew their opposition and agreed
to a new arbitrator.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Rule 10 was changed!
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Barber v. Metropolitan Council
Judge Denise Reilly
• She confirmed that AAA's NEW Rule 10 “merely removes a presumption of
bias; it does not preclude a court from finding that an actual bias or a
conflict of interest exists. As a matter of law, Rule 10 does not preclude
the Met Council from bringing the current motion.”
• “It is absurd to require a party to both litigate cases against one law firm
and have a member of that firm act as a decision-maker in other cases.
Such a scenario presents an obvious appearance of bias under the evident
partiality doctrine, and, thus, the Met Council cannot be forced to
arbitrate Claimant’s claim before him.”
• “Obvious financial interest in other claims against Respondent gives rise to
an obvious financial conflict.”
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Ok. So what does this cost?
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Spend a little, potentially save a lot
• In Barber, the arbitrator that was removed
historically awarded 100% in favor of plaintiff
approximately 90% of what was requested. The
Barber claim was $10,000.00. Therefore, Met
Council had near 100% certainty that they’d be
hit with an award of $9,000.00.
• Once the arbitrator was removed and the new
arbitrator was appointed, the ENTIRE CLAIM WAS
DENIED.
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011
Thank you for coming!
Email us for copies of these decisions.
Kelly Sofio
Oskie, Hamilton & Sofio, P.A.
ksofio@oskielaw.com
651-287-9128
David Larrabee
Metropolitan Council
david.larrabee@metc.state.mn.us
651-602-1773
Oskie, Hamilton & Sofio, P.A.
TCCA, February 8, 2011