Fawver v. Allstate Insurance Company

TONGUE, J.,

specially concurring.

I concur in the opinion by Denecike, J. I would, however, expressly disapprove of the practices- of the American Arbitration Association which resulted in its arbitration “panel” for use in the selection of arbitrators for uninsured motorist cases in Klamath Falls, Oregon, and which included only attorneys engaged primarily in the representation of insurance companies in tlie defense of personal injury cases.

The trial court was correct in finding that “[t]he claimants, by proceeding to arbitration having knowledge that the arbitrator’s practice consisted of representing defendants, waived claimant’s right to subsequently challenge the award on the ground of partiality.” Nevertheless, the practices which resulted in plaintiffs being presented with the problem of selecting an impartial arbitrator from such’a panel should be disapproved by this court. •

.-..It may be that no attorneys in Klamath Falls other than insurance defense attorneys. were willing to serve upon the arbitration panel. If so, this may very likely be the result of the practice of. the American Arbitration Association and of the insurance companies which use its services in the arbitration of uninsured motorist cases to the effect that attorneys who serve as arbitrators in such cases are expected to do so as a public service and without compensation.

The duties to be performed by an arbitrator in such cases require complete impartiality, integrity and ability based upon experience. In addition, an arbitrator in such a case may be required to devote considerable time not only in the arbitration hearing, but in a subsequent review of the evidence offered at the hearing, together with a study of pertinent provisions of the insurance policy and of the applicable law.

Although the American Arbitration Association may be a non-profit association, when an insurance company uses the services of the Association in uninsured motorist cases and when, for that purpose, attorneys are engaged to serve as arbitrators, it is unreasonable to expect experienced, competent and busy lawyers to donate the substantial amounts of time required in such cases without compensation. The custom and practice in labor and commercial arbitration proceedings, in which attorneys are not infrequently requested to act as arbitrators, is that such arbitrators are paid reasonable compensation for their services.

When attorneys are asked to permit their names to be placed upon an arbitration panel for use in the selection of arbitrators in uninsured motorist cases, but with the knowledge that they will receive no compensation for their services, it is not surprising that the resulting arbitration panel in a community the size of Klanjath Falls consists solely of attorneys engaged primarily by insurance companies in the defense of personal injury cases.