OTLA Trial Lawyer Fall 2021

6 Trial Lawyer • Fall 2021 THE GOOD STUFF ARBITRATIONS, UTCR 13 AND EVIDENCE By Aaron Reichenberger OTLA Guardian “W e’d like you to write an article discussing evidentiary rules in arbitration,” OTLA said. “Sure. It’s all coming in. Thus ends the article,” I re- plied. Maybe it is that simple, but let’s as- sume it’s not. We will explore this as- sumption through the hypothetical case and arbitration of Innocent Person vs. Oppressive Insurer . Person was hurt in a car crash. The at-fault driver’s car, to Person’s dismay, was not insured on the day of the crash. In addition, Person’s own insurance company began, without any justification, refusing to pay his medical bills under Person’s PIP coverage. Scared, confused and frustrated Person hired a virtuous OTLA member (whom we will name Goodness) to represent him. Despite Goodness’s best efforts, the case could not be amicably resolved and a demand for binding arbitration of both the PIP and UM claims was made. 1 Shortly after making this demand for binding arbitration, Oppressive Insurer’s lawyer (whom we will call Pompous) sends Goodness a letter saying he wants to discuss what rules apply for the up- coming arbitration. Specifically, in this letter, Pompous says UTCR 13 does not apply. This surprises Goodness as UTCR 13 is widely accepted as the applicable framework for PIP and UM/UIM arbi- trations. Goodness also knows he needs to go on the offensive as UTCR 13 is a tremendous asset to his client as it creates a framework governing every evidentiary issue in the arbitration, which allows it to be conducted efficiently and cost ef- fectively. 2 What about the statutes? After the three-person arbitration panel is selected, Goodness files a motion and requests arguments before the panel to confirm that UTCR 13 applies. When the time comes to argue before the panel, Goodness starts by saying: “Every UM/UIM or PIP dispute is one that arises in contract. So, we start by looking at the policy itself. When we look at this policy, it says that state court rules governing procedure and admission of evidence apply in this arbitration. 3 As we all know, UTCR 13 is the state court set of rules governing arbitration procedures and evidence. 4 Thus, based on the plain language of the contract, UTCR 13 ap- plies.” “But what about the statutes?” Pomp- ous frantically replies. “The right to binding arbitration in both PIP and UM/ UIM arbitrations is statutory. Specifi- cally, ORS 742.504(10) and 742.520(6). These subsections each say the arbitration proceeding shall be conducted ‘under local court rules in the county where the arbitration is held.’” 5 Building steam, Pompous loudly continues, “What local court rules!? The local rules do not expressly say that UTCR 13 applies in this arbitration! In fact,” he continues, “UTCR 13.010(1) states the chapter applies in court man- dated arbitrations under ORS 36.400 to 36.425 but goes on to say the chapter does not apply to ‘[a]rbitration by private agreement’ or ‘[a]rbitration under any other statute.’ 6 This automobile insur- ance policy providing PIP and UM/UIM benefits is, of course, a private agreement! And the right to binding arbitration in this case is found in ORS 742.504(10) and 742.520(6) — i.e. , ‘other statutes.’” Wiping the sweat from his upper lip, Pompous shrieks, “While UTCR 13 does give each judicial district the discretion to adopt a supplemental local rule requir- Aaron Reichenberger