EMPLOYMENT ARBITRATION PROCEDURES
Except as otherwise provided by the following Procedures, all arbitration of covered claims under any Mutual Agreement Regarding Alternative Dispute Resolution between Liberty National Life Insurance Company or United Investors Life Insurance Company (the “Company”), on the one hand, and any employee, applicant for employment, former employee or independent representative of either of those companies, on the other hand (hereinafter referred to as the “Individual”), shall be conducted in accordance with the American Arbitration Association’s (the “AAA”) National Rules for the Resolution of Employment Disputes (the “National Rules”) that are in effect at the time the Demand For Arbitration is filed. To the extent that any portion of the following Procedures are found to be unenforceable, the parties shall attempt to negotiate mutually agreeable replacement language for that portion of the Procedures. If they are unable to do so within 45 days, then the most analogous portion of the National Rules will be applied and such unenforceable provision of these Procedures shall be ignored. Nothing in these Procedures will be used to determine whether a claim is subject to arbitration. Instead, arbitrability of any claim alleged to be a Covered Claim shall be determined based solely on the language of the Mutual Agreement Regarding Alternative Dispute Resolution. However, nothing in this provision shall be utilized to alter, ignore, redline or omit any provision of the document entitled Mutual Agreement Regarding Alternative Dispute Resolution. These Procedures shall apply only to those claims which are Covered Claims and as to which arbitration is required by the express language of the applicable Mutual Agreement Regarding Alternative Dispute Resolution, and only after all conditions precedent to arbitration contained in the Mutual Agreement Regarding Alternative Dispute Resolution have been satisfied.
Arbitration conducted in accordance with the Mutual Agreement Regarding Alternative Dispute Resolution and these Procedures will result in the final, binding resolution of any dispute properly submitted for arbitration, subject to appeal, petition to vacate or other judicial review as provided herein or in the Mutual Agreement Regarding Alternative Dispute Resolution.
1.Notice of Election To Arbitrate
Nothing in these Procedures shall be construed to allow any claim to be arbitrated over the objection of the Company or the Individual unless that claim is a Covered Claim as defined in the Mutual Agreement Regarding Alternative Dispute Resolution (the “Agreement”) AND the claim is first filed in any court of competent jurisdiction as required by the Mutual Agreement Regarding Alternative Dispute Resolution. If those conditions precedent are satisfied, the defendant or respondent named in said lawsuit may exercise its exclusive right to elect to arbitrate any or all of the Covered Claims asserted against said defendant or respondent in the Complaint as specified herein. Any such election must be made within sixty (60) days of service of the Complaint. Upon any such election by the party named as defendant or respondent in the lawsuit, arbitration shall become the exclusive and mandatory method of dispute resolution for the Covered Claims made the subject of said election.
2.Filing of Demand for Arbitration
To elect arbitration of a covered claim, the Individual or the Company (whichever is named as the defendant in the lawsuit) shall, within 60 days after first being served with process in the lawsuit, send a written notice to the Plaintiff in the lawsuit specifying the Covered Claims as to which arbitration has been elected pursuant to the Mutual Agreement Regarding Alternative Dispute Resolution and pursuant to these Procedures. Either party to the lawsuit may then file a joint motion to stay the lawsuit pending arbitration, and the opposing party shall be deemed to have consented to such stay by virtue of the Mutual Agreement Regarding Alternative Dispute Resolution and these Procedures. Following the entry of such stay by the trial court, the person or entity which filed the lawsuit shall do the following to initiate arbitration:
A.Complete a Demand for Arbitration Form, a copy of which is attached as Appendix A to these procedures. These may be obtained by writing to the Company’s Law Department at:
Liberty National Life Insurance Company
Law Department
100 Concourse Parkway, Suite 350
Hoover, Alabama 35244
Attn: David Leon Smith III
B. Send two (2) copies of the completed Demand for Arbitration Form and two (2) copies of the Mutual Arbitration Agreement, along with the appropriate filing fee, as defined below in Section 3 of these procedures, to the following AAA regional office:
American Arbitration Association
SoutheastCaseManagementCenter
2200 Century Parkway, Suite 300
Atlanta, Georgia 30345
C.Send one copy of the Demand for Arbitration Form by certified or registered mail, return receipt requested, to the other party, as Respondent to the Demand for Arbitration. The Company will send any Demand for Arbitration to a Individual’s last known address. When the Company is the Respondent, the address for service of the Demand for Arbitration Form is:
Liberty National Life Insurance Company
Law Department
Post Office Box 2612
Birmingham, Alabama35202
Attn: David Leon Smith III
3.Arbitration Fees And Costs
If any claim to be arbitrated includes a claim for statutory attorneys’ fees, or a claim by an Individual for monetary relief not expressly limited to an amount less than $100,000, then all fees, expenses and charges assessed by the AAA or the arbitrator shall be borne equally by the parties (unless the Company in its sole discretion separately otherwise stipulates). In all other cases, unless the Company in its sole discretion stipulates otherwise, the Company will pay any filing fee for any Demand for Arbitration which it files, and an Individual who files a Demand For Arbitration must pay the initial filing fee required by the AAA up to the maximum of one hundred fifty dollars ($150), after which the Company will pay the rest of the initial filing fee and 75% of all other fees, expenses, and charges assessed by the AAA or the arbitrator, with the remaining 25% of other fees, expenses and charges assessed by the AAA or the arbitrators to be paid by the Individual. Each party shall in all cases pay for its, his or her own other expenses and attorneys’ fees, if any. However, if any party prevails on a statutory claim that entitles the prevailing party to attorneys’ fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party in accordance with such statute or agreement.
4.Failure To File Timely Election of arbitration or timely Notice Of Demand For Arbitration
Failure to elect arbitration of a Covered Claim in writing within sixty (60) days of the service of the complaint asserting that Covered Claim in a lawsuit will waive the right to elect arbitration. Failure of the Plaintiff in the lawsuit to file a Demand For Arbitration within thirty days (30) days of an defendant’s election to arbitrate, or within thirty (30) days order staying such lawsuit pending arbitration if such a stay is immediately sought and later granted, will constitute a waiver and release of all claims made in the lawsuit that would otherwise have been subject to arbitration under the Mutual Agreement Regarding Alternative Dispute Resolution. Failure to comply with these procedures will not prevent a Individual from filing a Charge with the United States Equal Employment Opportunity Commission or a state or local agency with the jurisdiction to enforce a state or municipal equal employment opportunity or fair employment practices statute, ordinance or regulation.
5.Response To A Demand for Arbitration
The Respondent named in a Demand for Arbitration shall file two copies of an Answer to that Demand with the American Arbitration Association within thirty (30) days of the date the AAA mails its letter to the Respondent acknowledging that it has received a Demand for Arbitration and shall simultaneously mail a copy of the Answer to the Claimant.
6.Counterclaims
Respondent may assert a counterclaim against the arbitration Claimant, provided that counterclaim is a Covered Claim or would be a compulsory counterclaim under the Federal Rules of Civil Procedure, by filing two copies of the counterclaim with the AAA within thirty (30) days after receipt of a letter from the AAA to Respondent acknowledging receipt of a Demand for Arbitration. Respondent shall simultaneously mail a copy of the counterclaim to the Claimant. The counterclaim shall describe the nature of the claim, the amount in controversy, if any, and the remedy sought.
7.Amendment of Claims
Before the appointment of an arbitrator, either party may offer a new or amended claim or counterclaim by filing a written statement of the new or amended claim with the AAA and simultaneously mailing a copy to the other party. The non-amending party shall have twenty (20) days from the date of the mailing of the new or amended claim to the AAA to file two copies of an Answer with the AAA and shall simultaneously mail a copy of the Answer to the new or amended claim to the amending party.
8.Appointment Of An Arbitrator
The parties may select an arbitrator by mutual agreement. If the parties are unable to reach agreement on an arbitrator, they will jointly request the AAA to provide a panel of ten (10) arbitrators who are members of the AAA’s Regional Dispute Resolution Roster.
The parties will have twenty-one (21) days from the date the AAA mails its letter providing the requested panel of ten (10) arbitrators in which to select a mutually agreed upon arbitrator to hear and resolve the dispute. If the parties cannot agree upon a mutually acceptable arbitrator, they must jointly notify the AAA and request a second panel of ten (10) qualified arbitrators who are members of the AAA’s Regional Dispute Resolution Roster who were not on the first panel. Within fourteen (14) days after receiving such a request, the AAA will provide the parties with a second list of ten (10) qualified arbitrators who were not on the first panel.
The parties will have fourteen (14) days from the date the AAA mails its letter containing the second panel of arbitrators to cross off the names of any arbitrators on the panel who are unacceptable, number the remaining names in order of preference and return the panel of arbitrators so marked to the AAA.
If any party fails to return the second panel of arbitrators within ten (10) days, that party will be deemed to have found all arbitrators on the panel second equally acceptable.
If possible, the AAA will appoint an arbitrator from the second panel that is mutually acceptable to the parties. If more than one arbitrator is acceptable to both parties, the arbitrator (or in the event of a tie, one of the arbitrators) with the highest combined ranking will be selected. However, if there is no mutually acceptable arbitrator on the second panel, or if an acceptable arbitrator is unwilling to accept the appointment, the AAA will then appoint any qualified arbitrator from among other members of its Roster of Employment Dispute Arbitrators who is a former judge or magistrate judge having no personal or financial relationship with either party or their counsel.
The AAA will notify the parties in writing of its appointment of an arbitrator.
9.Qualifications Of The Arbitrator
The arbitrator must be a neutral person. That is, no one may be an arbitrator in any matter in which that person has any financial or personal interest in the result, or an existing personal or financial relationship with counsel for any party to the arbitration or with that counsel’s firm. Before agreeing to arbitrate a dispute, the prospective arbitrator shall disclose to the AAA any circumstances likely to prevent a prompt arbitration or to create a perception of bias. Upon receipt of such information, the AAA will either appoint a different arbitrator pursuant to the procedures specified in paragraph 8, or communicate such information to the parties for comment. Following comments, the AAA shall disqualify the prospective arbitrator if a reasonable perception of bias is asserted by either party. If an arbitrator is disqualified or unable to serve for any reason, the procedure in paragraph 8 above will be used to select a new arbitrator.
10.Date, Time and Place of Hearing
Unless the parties otherwise agree, any arbitration hearing will take place in or near the city in which the Individual is or was last employed by the Company.
The arbitrator will set the date, time and place of a hearing. Whenever practicable, hearings expected to involve less than 5000 pages of document production should be set to begin within one hundred eighty (180) calendar days of the appointment of the arbitrator. The AAA will give written notice to the parties of the date, time and place of the hearing at least ninety (90) calendar days before the date set for the hearing.
As soon as possible after the appointment of the arbitrator, he/she will issue a statement advising the parties of their rights under the Company’s Arbitration Policy and these Procedures including, but not limited to: (a) the right to be represented by an attorney; (b) The right to seek subpoenas for the attendance of witnesses and subpoenas duces tecum; (c) The right to be heard, to present evidence, and cross-examine witnesses; (d) The right to adjournment for good cause. The notification shall also include a brief statement detailing the arbitrator’s experience and educational background.
Within 30 days after the arbitrator’s appointment, he/she will conduct an Arbitration Management Conference with both sides to explore and resolve matters that will expedite the arbitration proceedings. This conference may be conducted via telephone.
If either party asserts that the matter(s) submitted for arbitration are not arbitrable, that party must notify the other party and the arbitrator prior to the Arbitration Management Conference. Thereafter, the arbitration of the underlying claims shall be stayed pending separate arbitration of the arbitrability dispute, and the procedures set forth in paragraph 8 shall be utilized to appoint a new, separate arbitrator whose authority shall be limited to resolving the issue of arbitrability, which shall be done in a separate arbitration proceeding from any arbitration of the merits of any claim found arbitrable. The decision as to arbitrability shall be made in a written reasoned opinion and Final Award and shall be subject to immediate appeal or petition to vacate as provided in the Mutual Agreement Regarding Alternative Dispute Resolution. The separate arbitration of the underlying Covered Claims shall then be dismissed without prejudice unless the arbitrability dispute is finally resolved in favor of arbitrability after the conclusion of any appeal or petition to vacate or other judicial review.
11.Authority and Power of the Arbitrator
The authority of an arbitrator appointed to hear an arbitrability dispute is limited to hearing and resolving issues of arbitrability in an arbitration proceeding that is severed and entirely separate from any arbitration of the merits of a Covered Claim, and his or her decision on arbitrability shall be deemed a Final Award and shall be subject to appeal or judicial review as provided herein and in the Mutual Agreement Regarding Alternative Dispute Resolution. The authority of an arbitrator appointed to arbitrate the merits of one or more Covered Claims is limited to resolving Covered Claims as defined in the Mutual Agreement Regarding Alternative Dispute Resolution, in strict accordance with the Mutual Agreement Regarding Alternative Dispute Resolution and these Procedures.
The arbitrator will not have the power to change the Company’s policies, rules and practices, the terms of any contract, or the language of the Mutual Agreement Regarding Alternative Dispute Resolution. The arbitrator may not change the law applicable to the facts of the dispute and may not substitute his or her business judgment for that of the Company. The arbitrator may not assume facts not in evidence, but may take judicial notice of facts to the same extent that a state or federal court of the state in which the claims arose would have authority to do.
The arbitrator shall be bound by the facts and evidence submitted at the hearing, notwithstanding the failure of a party duly notified to appear. The Arbitrator may not go beyond the terms and provisions of the Mutual Agreement Regarding Alternative Dispute Resolutionand these Procedures and the relevant substantive law in rendering a decision. No such decision may include or deal with any issue not expressly made subject to arbitration under the terms of the Mutual Agreement Regarding Alternative Dispute Resolution and not directly involved in the claim submitted to the arbitrator in the Demand for Arbitration or agreed to in the Arbitration Management Conference.
To resolve a Covered Claim submitted to arbitration, the arbitrator will have all the powers a judge in a court of competent jurisdiction would have in dealing with any question or dispute that may arise before, during and after the arbitration hearing including, but not limited to, hearing and ruling on motions to dismiss and motions for summary judgment. The arbitrator shall apply the substantive law and statutes of limitation and repose of the state in which the claims for arbitration arose, or the federal law and statutes of limitation and repose that would be applied by the United States District Court sitting where the events giving rise to the claim took place, or both, as applicable to the claim(s) asserted. The arbitrator will apply the burdens of proof required by applicable federal, state or local law and will follow the Federal Rules of Evidence with respect to federal claims and the rules of evidence of the state in which the claims arose for state law claims.