Dr. Junaedy Ganie, SE, MH, FCBArb., MCIArb., ANZIIF (Snr. Assoc.), AAIK (HC), CIP, CLU, ChFC
Frans Lamury, ANZIIF (Snr. Assoc.), AAIK (HC)
( First published in Indonesia Arbitration Quarterly Newsletter Vol. 8 No. 1 March 2016)
Friday, 15 April 2016
Adjudication in Insurance
Makalah ini membahas implementasi ajudikasi dalam klaim asuransi Proses adjudikasi adalah salah satu cara penyelesaian sengketa, seperti yang lazim dijalankan di Badan Mediasi dan Arbitrase Asuransi Indonesia (BMAI). Termasuk dalam pembahasan presensi masing-masing pihak didalam kontrak asuransi, biaya, kerahasiaan atau confidentiality, perwakilan para pihak, dan seterusnya. Statistik BMAI menunjukkan bahwa dari sebanyak 456 klaim asuransi yang ditolak, hasil adjudikasi dan mediasi yang dilaksanakan oleh BMAI mencatat adanya 216 klaim atau 48% yang diputuskan untuk dibayar oleh asuransi, 120 kasus klaim atau 26% ditarik kembali oleh insurer dan sisanya 120 kasus klaim atau 26% dinyatakan pihak asuransi tak bersalah.
Kata kunci : Adjudikasi, Aspek Hukum, Asuransi, Badan Mediasi dan Arbitrase Asuransi Indonesia (BMAI), Kontrak Asuransi, Confidentiality.
What is Adjudication?
The legal definition of Adjudication is the legal process of resolving a dispute. Three types of disputes that are resolved through adjudication: disputes between private parties, such as individuals or corporations; disputes between private parties and public officials; and disputes between public officials or public bodies. The requirements of full adjudication include notice to all interested parties (all parties with a legal interest in, or legal right affected by, the dispute) and opportunities for all parties to present evidence and arguments. The adjudicative process is governed by formal rules of evidence and procedure. Its objective is to reach a reasonable settlement of the controversy at hand. A decision is rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal.
A hearing in which the parties are given an opportunity to present their evidence and arguments is essential to adjudication. Following the hearing, the decision maker is expected to deliver a reasoned opinion. This opinion is the basis for review if the decision is appealed to a higher tribunal (a court of
appeals). It also helps ensure that decisions are not reached arbitrarily. Finally, a well- reasoned opinion forces the judge to carefully think through his or her decision in order to be able to explain the process followed in reaching it.
Adjudication of a controversy generally ensures a fair and equitable outcome. Because courts are governed by evidentiary and procedural rules (in US as well as by stare decisis), the adjudicative process assures litigants of some degree of efficiency, uniformity, and predictability of result.
Adjudication at BMAI
In Indonesia, one of the institutions which conduct the adjudication is Badan Mediasi dan Arbitrase Asuransi Indonesia (BMAI). BMAI was established in September 2016. It is an association comprising of all insurance companies and reinsurance companies operating in Indonesia whose membership in the association is on a compulsory basis. The objective of its establishment is to provide fair and simple insurance claim settlement processes through an alternative dispute resolution in order to raise public
confidence and interest towards insurance protection while contributing to the increase in welfare of the society.
BMAI handles claims disputes between Insurers and Insurers/Policyholders/ Beneficiaries on both admission of liability and amount of loss or benefit payable from Insurers as well as with respect dispute on reinstatement or surrender of life insurance policy. It also deals with admission of liability and amount of claims disputes between members of BMAI. The mediation has the objective to resolve the disputes by engaging mediators and facilitating peaceful means without making any evaluation or award on the disputed case. The adjudication tribunal will conduct the hearings and issue the adjudication award in the event that amicable resolution through mediation process cannot be achieved.
Reasons for the BMAI establishment
There was a common phrase occasionally appeared in the readers column in a media that insurance persons are usually very persistent and that they will keep coming back trying to convince people of their need for insurance protection, be it for their personal assets, life or commercial property and interest or liability risks. They will always show up until a deal is closed but where are they at the time of claims? It is a reflection that settlement of claim disputes by the insurers are not always satisfactorily to the insurance consumers, known as Insureds. To the Insureds, especially individual policyholders, a claim rejection from an insurer may bring them to a dead end while keeping in mind that many cannot afford to go to costly legal proceedings at court or arbitration and especially when the amount involved can be smaller than the legal costs. Combined with their lack of knowledge towards policy terms and conditions and the heavy burden to carry being in a legal dispute, many might give up their rights while the consequence of such an attitude would only lead to stronger public perception of distrust towards insurance protection with no doubt will tarnish the reputation of the insurance industry.
Prior to the establishment of BMAI, insurance claims disputes were settled through arbitration proceedings or court. However, many of the claims involved small amounts while their legal costs could be higher than the amount in dispute while the process can take a long time (specifically on settlement through court). As such, settlement of claims in that nature through court or arbitration would be inefficient. Within the same period, insurance companies were facing a number of unfair bankruptcy legal suits from disputed claims such as the cases with Manulife and Prudential that had to go a long way to avoid bringing healthy insurers into liquidation from unfair bankruptcy risks, a situation which was later changed under the Bankruptcy Law Nr. 37 Year 2004 to the advantages of the insurance industry. The insurance industry was also happy to see that a judicial review attempt by legal practitioner to turn down what so called the exclusivity of the insurance and reinsurance companies were unsuccessful. In return, the insurance industry had to demonstrate its stronger sense of commitment to provide access for consumers to file for their claims and be placed in a stronger bargaining position.
Claims service is the display window of the insurance service providers. Effective, low cost and fair claim settlement process will contribute greatly to the reputation and credibility of the national insurance industry and hence would create better public acceptance and pave for bigger market share nationally while making the insurance industry as one of the preferred career destinations in Indonesia.
It is also believed that dispute settlement through a dedicated and specialised institution such as BMAI will be better and more effective than settlement through Consumer Dispute Settlement Agency or Badan Penyelesaian Sen gketa Konsumen (BPSK) as mandated by Consumer Protection Law. Keeping such situations in mind, insurance practitioners had agreed upon the necessity to provide a simple, low cost and effective platform for the Insureds to bring disputed claims and hence the establishment of BMAI.
According to BMAI, adjudication is a means of dispute resolution outside of arbitration and court proceeding that parties have agreed to be settled through BMAI and subject to the maximum claim amount set under the prevailing Rules and Procedures of BMAI. Adjudication process at BMAI is designed as a simplification of an arbitration process wherein there is only one written statements from each party is required i.e. the Claimant’s Statement of Claims and the Respondent’s Statement of Defence. There is neither replication nor rejoinder.
BMAI will deal with adjudication request from eligible Claimant as follows:
1. When member of BMAI cannot resolve a dispute directly with the Claimant based on the claims filed by the Claimant within 30 days since the objection from the Claimant is received by the Respondent.
2. The amount of claim or benefit in dispute is not more than Rp 750 million per claim for general insurance and Rp 500 million per claim for life insurance.
3. The nature of claims submitted not on the decision of commercial consideration, on pricing policy or other policies such as premium rate, cost and foreign exchange rate or any case being under investigation by the authority.
Existence of BMAI under the insurance contract.
All insurers being the members of BMAI are required to attach an “Important Notice” to each insurance policy issued to the Insureds/Policyholders containing a statement that in the event they do not agree to any claim declinature by the Insurers, they are entitled to bring the claim to BMAI to resolve through a mediation or adjudication provided any one claim will not exceed Rp 750 million for general insurance and Rp 500 million for life insurance. The notice clearly states that the mediation and adjudication services are provided free of charge to the consumers and that they are free to accept or decline the adjudication award of BMAI.
In addition, all members of BMAI are also required to put in their letter of claims repudiation to the Insureds – and this is very effective- an “Important Notes” which states that although their claim is rejected, but if they do not agree with the reasons of repudiation, they may bring the case to BMAI for settlement through mediation and adjudication process. Again, the services are provided free of charge and that they are free to accept or decline the adjudication award of BMAI.
As the Dispute Clause attached to the insurance policy has stated the existence and function of BMAI, the Important Notice above is somewhat redundant albeit, the current Dispute Clause needs rewording in order for the sequence of events leading from the mediation process to the adjudication proceeding to flow clearly. It is better to transfer vital elements from the Important Notice which has not been incorporated under the Dispute Clause to the Dispute Clause to convert the relevant important provisions from merely as an insurer’s statement into an agreement stated in the insurance policy binding both insurers and the insured
Cost of Adjudication
In accordance with its mission to provide low cost dispute resolution and increase insurance protection credibility before the public, BMAI provides adjudication without charging any cost to either party in dispute, except for the cost of any witness or expert brought to the proceeding to be borne by the requesting party. BMAI survives from the membership fee payable from all the members.
The adjudication process is closed to the public and confidential in nature. Either party is not permitted to communicate with any or all members of the tribunal in any way except during the hearing process. BMAI or either party may claim for indemnification for loss or damage arising out of any breach of confidentiality or assurance for avoidance of reoccurrence of similar breach.
Both parties in dispute have to appear at the hearing without the presence of either third party lawyer or Claimant’s broker. No legal representation is allowed at the hearing. Individual Claimant may be accompanied by up to 2 persons who will have no right to speak at the hearing except at the permission from the tribunal. Institutional Claimant has to appoint one and at the most 3 persons, who should be their own permanent employees, as the permanent authorised representative at the adjudication process. Respondent has to appoint one and up to 3 persons, who should be their own permanent employees, as the permanent authorised representative at the adjudication process.
Period of adjudication process
Adjudication process to be completed in no more than 60 days from the date of the establishment of the Tribunal and may be extended based on specific reasons. BMAI
applies strict and shorter time limit for each stage in the adjudication process in order to ensure that it can provide a simpler, faster and efficient claims dispute settlement.
Law, Language and Place of Adjudication
The applicable law is the law of the seat of the adjudication. The adjudication process is conducted in the Indonesian language unless both parties agree to select any other language. Adjudication process is to be held at the place determined by the Board of BMAI.
Nature of the Adjudication
It is compulsory for the Respondent to abide by the award delivered by the Tribunal while the Claimant is entitled to opt whether to accept or decline the award. The award will become final and bind both parties once the Claimant has agreed with the award. Neither party may refuse or provide injunction against the award but to adhere to the award based on utmost good faith. BMAI will closely monitor compliance of the parties to the contents of the award and will liaise with the Financial Service Authority (OJK) on any kind of noncompliance to the award.
1. In the event that a dispute cannot be resolved through a mediation process, Claimant may submit a request for adjudication based on the prescribed form and complete supporting information to the Chairman of BMAI and such request for adjudication must be made within 10 days from the date a mediation process declared to be unsuccessful to reach amicable settlement.
2. The Board of BMAI has to advise Claimant confirmation of acceptance of or declinature of the adjudication request within 10 days of receipt of such request. In case of a declinature, BMAI has to provide reason (s) for the declinature. Claimant is allowed to resubmit their request by complying to the conditions stated within 15 days from the date of BMAI’s declinature.
3. Prior to the commencement of the adjudication process, each party will have to sign a prescribed Adjudication Agreement Letter stating among others as follows:
a. Either party will not involve BMAI as witness whenever the dispute will be brought to arbitration or court and nor will they demand adjudicator or BMAI to surrender, in part or in whole, the adjudication documents.
b. Both parties will submit and bound entirely by the rules and procedure of BMAI.
c. Both parties will hold BMAI and the member of the Tribunal harmless of any claim or indemnity arising out of their action or any other matter related to their services or the dispute or claim submitted by the Claimant.
4. According to its Rules and Procedures, the Board of BMAI will form an Adjudication Tribunal of 3 adjudicators and in each tribunal at least one member is to possess legal profession background. According to the official Profile of the Association, the Tribunal of 3 comprises of 1 former judge at court of justice and 2 former insurance practitioners and it is the Chairman of BMAI who is responsible to form the Tribunal. One of the members will be the appointed Chairman of the Tribunal. Only BMAI’s registered adjudicator may be appointed as member of the tribunal.
5. In case there is a need to extend the period of submission of Response from the Respondent, such delay may not be longer than 7 days from the initial date set.
6. Cancellation of a Request for Adjudication after submission of Response from the Respondent may only be granted by the agreement of the Respondent.
7. Any change to the Request for Adjudication after submission of Response from the Respondent may only be allowed by the agreement of the Respondent provided the change relates to factual matters not on the legal basis of the Adjudication Request.
8. Examination of the dispute is conducted in writing. Oral examination or hearing only at the discretion of the Tribunal.
9. Both parties have equitable rights and opportunity to put forward the statement of cases, submit evidences and their respective witnesses.
10. Either party may not record the hearing process by any means.
11. Tribunal will only examine the case based on a single Claim Proposal and a single Response from the other party. There shall be subsequent Submission and Response or Conclusion as the case of the common arbitration proceeding in Indonesia.
12. Should the parties agree to try to reach an amicable settlement during the course of the adjudication, the Tribunal may allow the parties to postpone the adjudication process up to maximum of 30 days.
Has BMAI met its intended role?
From the period of its establishment in September 2006 to 2013, BMAI had handled 476 cases. Out of which, 252 cases were settled amicably by mediation and 35 cases were resolved by adjudication. There were 90 cases found to be outside the jurisdiction of BMAI and interestingly there were 99 cases withdrawn by the Claimants. There is no outstanding case to date. In average there were 5.47 cases per month and 65.7 cases per year. In 2014 and 2015 there were 51 cases and 50 cases respectively in total. The higher number of cases settled by mediation had also reflected the competence of the mediators to bring disputing parties to amicable resolution.
From the total number of insurance claims dispute cases brought by the insuring parties to be resolved by BMAI, we can appreciate the positive impact BMAI has brought to the insurance businesses. The smaller number of cases in 2014 and 2015 might had reflected BMAI’s contribution to the better attitude of the insurers in their daily claims handling and hence claims rejections might have reduced. In terms of the benefits BMAI has brought to the insurers, policyholders and beneficiaries as the following statistics show.
Out of 165 claims cases rejected by insurers and brought to BMAI for mediation, there were 70 cases (42%) that insurers were liable to pay and there were 49 cases (30%) insurers were not liable to pay while on the other 46 cases (28%) claimants decided to withdraw.
Out of 25 cases that were not resolved by mediation and subsequently brought to adjudication proceeding, the tribunal awarded that there were 18 cases (72%) that insurers had to pay. This made it in total, insurers at the end, had to pay 88 cases or 53.3% of the claims they initially rejected.
There were 236 cases brought to the mediators at BMAI and out of which insurers were liable to pay 105 cases (45%) and 57 cases (24%) insurers did not have to pay and there were 74 cases (31%) claimants agreed to withdraw. There were 30 cases not resolved by mediation that were brought to adjudication tribunal and out of which 23 cases (77%) insurers had to settled and 7 cases (23%) insurers were not liable. It made in total, insurers had to pay 123 cases or 54% of total claims initially rejected.
There was no claim dispute brought to BMAI under social insurance.
From the above statistics, we can see the insurance industry had rejected 456 claims that the Insureds/Policyholders/ Beneficiaries had brought to BMAI. Following the mediation and adjudication services provided by BMAI, insurers had to pay 216 claim cases (48%) and claimants decided to withdraw 120 cases (26%) while for the remaining 120 cases or 26% that insurers were indeed not liable.
The above figures have demonstrated that the insurance industry has successfully established a mechanism to control the attitude of their members to improve quality of their services to their customers by the establishment of BMAI. By doing so, the credibility and public confidence and interest towards insurance businesses will also increase. To the benefit of the society, the insureds whom without the existence of BMAI might never be able to find a fair, simple and low cost means to resolve and recover their rights with respect the claims insurers have rejected. Both the mediation and adjudication proceeding would have provided a learning experience to the insurers involved. The number of claims the claimants finally withdrew also proved that not all claims lodged with insurers are claimable and this situation indicates the need for the insurers to ensure a fair and efficient claim assessment system to be put inplace.
Jakarta, 22 Februari 2016
Chairman, member of numerous Arbitration Tribunals at BANI Arbitration Center (Commercial), LAPSPI (Banking), BMAI (Insurance), Ad-hoc including UNCITRAL. Entrepreneur in a number of businesses, Independent Commissioner Allianz Indonesia (General, Life, Pension), Commissioner Axle Asia. Doctor in Business Law (cum laude). Earlier education includes economics in Jakarta, post graduate study in business administration at UK based De Montfort, Senior Management Development Program at INSEAD Business School in France. In possession of professional qualifications as Member of Chartered Institute of Arbitrators, Fellow Chartered BANI Arbitrator, Fellow & Certified Insurance Professional, both from Australian&New Zealand Institute of Insurance&Finance; Chartered Life Underwriter; Chartered Financial Consultant, Fellow of Indonesian Insurance Institute (AAMAI) on honoris causa. Prior career path in Indonesia had been with AIG, Cigna, Aon (Co Founder & former CEO for 16 years) and other large US affiliated companies and as former CEO of BNI Life leading its successful transformation (Sept 2011 - Sept 2014). In the past he held a number of senior posts at Lippo Group.