The Insurance Assessment and Judges Association held a training session in Orlando today. The session was chaired by Robert Norton. The audience had a number of very experienced valuers and judges, many with the insurance company's background. Robert Norton has been teaching in this area for twelve years. He really is an expert on the various issues that pertain to evaluation. I learned a lot from him and the discussion with the audience.
I also thought that my curiosity was drawn to the question of the election of a judge. The choice of a judge is very important. But what qualifications should a judge have?
The New York 165 Line Standard Fire Policy has the following requirements for a judge:
Judges must first select a competent and disinterested judge
Current ISO forms and national flood policy are silent on a judge's qualifications. Still, I was fascinated by the concept of "competent" judge that many policies require. What is a "competent judge?"
When used as an adjective, a dictionary definition says:
"with the necessary ability, knowledge or skill to do something successful" and "legally qualified or adequate." [1
When reading the assessment clause as a whole does not include the judge's remit to make independent estimates of loss. Instead, the judge under most property insurance forms has differences in loss for the two appointed valuers and then makes assessments based on what is done by the valuers.
The standard fire insurance policy, ISO insurance forms and the National Flood insurance forms do not contain any specialized procedures for the evaluation process. They do not list any obligations or the judge's authority other than to assess the differences in the loss of the valuers.
A professor of insurance law made this remark regarding evaluators and the evaluation process:
Assessors …. are not provided otherwise in the agreement, are generally expected to act according to their own knowledge and investigations, without notice of hearings, are not obligated to hear evidence or receive statements from the parties and is allowed a wide margin of discretion over procedure and source of information. 1
The Windstorm Insurance Network also has high quality training sessions and training for evaluators and judges. It states that "an ideal judge" has the following characteristics:
• Will give an early and impartial decision.
• Is competent.
• Observes high standards of conduct.
• Has integrity.
• Has the ability to make an intelligent decision.
• Commands respect.
• Acknowledges a responsibility to the public.
• Monitors the integrity and fairness of the evaluation process.
• Can promote an efficient and fair process.
• Can maintain the confidentiality of the process.
• Is reliable.
I agree. The process falls apart without having a person who fits the above characteristics. But what does it mean when it uses the word "competent?" Does this mean that the person must have some special ability or just be sufficient to assess the differences that the assessors raise?
Jonathan Held is a very experienced and competent assessor. He published an essay on the subject of electing a judge. 2 His article suggests that the judge's competence requires special skills and possibly expertise in addition to only being able to make assessments. Held makes the following points regarding the choice of a judge in a high value and complex assessment:
In large complex issues, the choice of judge can be a costly, time consuming and carefully scrutinized endeavor. In general, the following guidelines should almost always be followed, which will ensure that there can be no allegation of accident in the nomination and selection process:
- The parties should unilaterally examine judge candidates to determine the competence to serve on the panel.  No biased contact should be made at any time by a party, appraiser or adviser involved in the case, not even to request a resume or determine interest or availability.
- The parties should agree on a simultaneous exchange of candidate names.
- The parties should agree on the language in a joint introductory letter sent by the assessors to the judge candidates (the judge should not know who the nominee or party is). The letter should contain at least the following:
- That the trustee is considered to act as a judge for a disputed insurance claim (name the matter without specific detail).
- That the evaluators wish to meet or have a conference call with the referee to determine qualifications and
- That the referee nominated should provide the evaluators with a CV and / or information about his or her ability.
- That the judge nominated should review the conflict list and be prepared to report on any conflicts during the first interview.
- Dates and potential times for a telephone or in-person interview with the evaluators.
- The parties should agree on a comprehensive list of conflicts to be included in the introductory letter.
It can also be good to limit the number of nominees and agree that the judges can not agree on the judge, that sides will jointly present a court to name the judge from the party nominee (or a finalist for each party).
Held, Norton and the Windstorm Insurance Network teach about making sure the judge has no hidden agendas and a person who can be fair and free to assess loss based on information and evidence.
My impression is that the role of the judge has been extended by industry standards rather than by law or any formal procedure. IAUA and The Windstorm Insurance Network write and teach about these procedures. I do not complain about this because procedures that are fair and promote practical and honest methods of dispute resolution are much better than the "Wild West" where there is no agreement on rules.
As far as "competent", who can say that a retired judge can not be "competent"? Most intelligent people who are respected and have a high character should qualify as "competent".
Held and Norton address the issue of whether the types of judges, who may have no skills in the issues presented, are the best judges for parties to an assessment. It is another standard for "competent". Although they are not the legal minimum standard, they make a big point that in order to be fair to the parties, the assessment from the assessment panel can be better and more accurate with the choice of a judge who has some training in the specific issues being evaluated. Although not technically necessary, the proposal for this type of "qualified according to criteria for what is to be assessed" judges has many practical advantages.
Thought for the day
The most exciting thing you come across in government is competence, because it is so rare. : a four-step program 37 U. Tol. L. Rev.931 (2006).
2 Jonathan Held. Assessment Process . 2007.