How to Build a Convincing Property Arbitration Case

By Denise Johnson | June 29, 2011

Persuasive writing skills coupled with a well-rounded investigation and evaluation of the claim are the basic tenets in preparing a convincing property arbitration case, according to attorney Jonathan Barger, an associate in SmithAmundsen’s Insurance Services Group.

During a session at the Property Liability Research Bureau’s conference held earlier this year in Nashville, Tennessee, he emphasized that adjusters need to provide details of their case using perhaps the most important tool they have: persuasive writing skills. “Develop a theme, tell a story, organize facts chronologically, and remember to minimize unfavorable evidence”, said Barger.


With a fire loss, for example, the initial investigation includes gathering facts and statements from independent sources including fire marshals, police officers and fact witnesses.

Consideration should be given to the possibility of prior claims, cause and origin of the fire, the size of the responding fire department, mortgage status, and whether faulty equipment or wiring could be to blame.

Social media should be considered, as amateur footage of fires is often uploaded to sites such as YouTube and Facebook.

Barger said it’s important to always keep subrogation in mind during the investigation and gather evidence and facts accordingly. That means making sure evidence crucial to the case is properly inventoried, saved and stored to avoid spoliation issues arising later.

The early stage of an investigation is also the time to consider retaining an expert. This task entails reviewing the expert’s qualifications, evaluating whether a local or out of town expert is warranted, and the ability of the expert to testify, if needed, at a later deposition or trial.

Depending upon the size and value of the claim, this may also be the time to consider retaining an attorney to prevent spoliation and disclosure issues later.

Weighing the Evidence

Once the majority of the investigation is complete, it’s important to weigh the evidence. This is the time to sort through it, determining its relevance, and how it will support or impede the allegations. A good way to identify holes in an investigation or evaluation is to assume the respondent will deny liability and damages, according to Barger.

In a fire investigation, differences of opinion between the public fire investigator and a retained expert are common. If this occurs, the adjuster should examine the reasons the experts don’t agree. The role of fire marshals is to investigate whether criminal behavior is involved. That’s why their investigations typically end when a determination has been made whether a fire has been intentionally set. It’s easy enough to establish a case if an expert is on hand who has gone a step further and examined the evidence to determine a cause.

Adjusters might consider these factors in weighing the pros and cons of a case:

• Timeliness of the investigation

• Witness credibility

• Quality of photos, videos, and artifacts

It’s important to submit the best quality photos available. All too often, Barger said, he has seen adjusters submit blurry, black and white photos duplicated multiple times as evidence.

Next, the adjuster should tabulate the damages that will be claimed. This is the time to consider the measurable damages recoverable, what is owed under the policy versus what the applicable state laws allow. “You have to know what the jurisdiction considers the proper measure of damages to be,” said Barger. For instance, in Illinois, recovering damages at actual cash value (ACV) or replacement cash value (RCV) depends on a number of factors including the usage of the property.

Preparing the Contentions

Persuasive writing comes into play in preparing the contentions, especially when conflicting or negative facts exist. It’s always a good idea to address unfavorable evidence. “You can’t ignore the negative facts. It’s basically a missed opportunity if you don’t go ahead and try to explain away some of those negative facts,” said Barger.

Writing effective contention matters in the ultimate disposition of a case. The introductory statement should state the nature of the dispute, the theory of negligence and right of recovery, and the damages sought.

The contentions should include background information regarding the scene, a summary of the investigation that includes a chronology of events and reasons for them, supporting evidence, and a closing statement that reaffirms the liability and damages position. It’s important that the arbitrator is not left with an opportunity to guess why an event occurred or what the damages might be.

Barger’s recommendations are not only applicable to writing convincing property arbitration contentions but also to writing subrogation demand letters. Barger said there are two major components that should be included in all subrogation demands and arbitration contentions: “why you think there is liability and what the damages are.”

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