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Roger, Attorney
Category: Personal Injury Law
Satisfied Customers: 31770
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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arbitration and award.An affirmative defense asserting that

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arbitration and award.An affirmative defense asserting that the subject matter of the action has already been settled in arbitration. the question is does arbitration have to be between the two party's or is it centered around the subject matter example if accident occurred one was compensated by there own insurance company for damages, would this be considered as arbitration and award,or; does arbitration have to be between the initial party's
Hi - let me read up about this and I'll respond in a bit.
Customer: replied 4 years ago.

ok sure

An insurance company paying a claim is not an arbitration and award - it's just a settlement of a claim.

An arbitration is a trial that's handled through an arbitrator instead of a judge in a trial court setting. The award comes after the arbitrator hears the arguments of the parties - just like in a traditional trial.
Customer: replied 4 years ago.

what about satisfaction and accord

Accord and satisfaction is a settlement of a claim, but a person settling a claim with his/her insurance company isn't a bar preventing the person from suing the other party (and that party's insurance company) as well.

HOWEVER, the person can't recover twice for the same damages (that's unjust enrichment). But, the person can sue the other party for damages over and above what was recovered via insurance. ALSO, the person's insurance company would have a subrogation claim against the other party for whatever money it pays over to the person.

Thus, just because a person receives payment from his/her OWN insurance doesn't prevent suit from being filed. However, if the person settles with the other party's insurance company, that would be a bar to filing suit.
Customer: replied 4 years ago.

but would they have to show that the amount there requesting is over the amount of with there insurance paid is that correct, so could and affirmative defense be unjust enrichment or a counter claim or if they have been compensated for damages would that compensation create an collateral estoppal

If suit is filed, you can request in discovery information or documentation on whether or not insurance has paid all or part of the damages, and then ask for an accounting of those amounts. That will ensure the party doesn't recover twice (called double dipping).

Yes, an affirmative defense could be unjust enrichment.
Customer: replied 4 years ago.

is this done if you counter claim or you can file a counter complaint , would it be sought by admissions, interrogatories etc.

It wouldn't be a counterclaim because you're not seeking damages, you're just wanting credit for the payments made from insurance. It would be an affirmative defense.

Also, you would ask an interrogatory regarding any insurance payments, then you would make a request for production of documents for documentation providing evidence of insurance claim payments.
Customer: replied 4 years ago.

that would fall under just a defense of 1. "payment" that they have already been compensated for the damages which bars them from relief 2. unjust enrichment they have entered into this with unclean hands seeking unjust enrichment by double dipping

That's right.
Customer: replied 4 years ago.

see you a good teacher!

Don't know about that - - but thank you!
Customer: replied 4 years ago.

well i do cause i check everything lol, anyway good teachers are like good students i believe. you cant be a good leader if you were not a good follower per se. not absolute but something like that by the way can you have an affirmative defense and counter claim?

Yes, you can do both.

An affirmative defense is made as part of the answer to the complaint, and the counterclaim would be a separate pleading -- but you could include both in the same document. It would be an Answer, Defenses and Counterclaim all in one.
Customer: replied 4 years ago.

or if i don't file them together would it just be a single complaint and not a counter claim and does one take away from the other like if i file a complaint on the same case would it be different from a counter claim?

You wouldn't have a complaint and a counterclaim. A complaint is an initial pleading that a plaintiff files to start a lawsuit. A counterclaim is a complaint that the defendant files against the plaintiff in response to the complaint.

So, you would file one or the other in the same case - not both.
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