In a recent 2025 award, an arbitration tribunal of the Center for Conciliation, Arbitration, and Amicable Composition of the Cali Chamber of Commerce (hereinafter, the “Tribunal”) resolved a dispute between (i) an insured company and beneficiary of a “corporate all-risks” insurance policy and (ii) the insurers that issued said insurance under a coinsurance structure.

The facts under analysis arose from damage suffered by machinery essential to the company’s production process. Such damage caused a significant reduction in operational capacity and delays in production, which, in turn, generated both actual damages and loss of profits.

The dispute centered on the sufficiency of the indemnity offered and paid by the insurers based on the report issued by an insurance adjuster. The insured argued that the amounts recognized, both for actual damages and for loss of profits, were lower than those actually suffered, which is why it returned the funds paid by the insurers.

Given this situation, the insured filed a claim against the insurers seeking an adjustment of the indemnity. The Tribunal partially upheld the claims and issued the following considerations regarding the role of the insurance adjuster:

1. Functions of the insurance adjuster
   The Tribunal recalled the case law of the Supreme Court of Justice dated November 23, 2010, in which the role and functions of the insurance adjuster and the part it plays in verifying the state of the risk were outlined:
   
   “In what has to do with the adjuster, also called the liquidator, it should be clarified that the activity carried out by this expert is to ascertain and report, among other things, the nature, the cause, the effects, or the amount of the loss, that is, he is an independent professional who is hired to determine how the damage occurred and, in some cases, what the real extent of the loss is. Although, as a general rule, the contractual relationship is entered into with the insurer, his services may be contracted by the insured or policyholder, by the beneficiary, or by them jointly, all for the purpose of facilitating the full and adequate execution of the insurance contract.”
    
2. The adjuster’s report is not binding and does not establish the amount of the loss
   The Tribunal reiterated that, due to the adjuster’s independence from the insurers and the lack of authority to represent them, the adjuster’s report is not binding. Consequently, it does not constitute proof of the amount of the loss by the insured:
   
   “In a previous section of the award, it was indicated that the adjuster is independent with respect to the insurers and does not represent them, while his opinion is not mandatory, such that it cannot be understood that the date on which his report was issued is that of the accreditation of the amount of the loss by the insured.”
    
3. Scope and evidentiary value of the adjuster’s report
   The Tribunal also clarified that the adjuster’s report cannot be understood as an indemnity offer made by the insurer, precisely due to the adjuster’s independence and the absence of representative authority:
   
   “It thus follows from the above as a conclusion that the adjuster’s report cannot be considered the insurers’ indemnity offer under the terms of Article 1077 of the Commercial Code, since the adjuster is a third party who does not represent them nor has express authority of representation; (…)”
    
4. The adjuster’s report does not trigger the term for payment of the indemnity
   After confirming that the adjuster’s report does not constitute an indemnity offer, the Tribunal concluded that there was no basis for declaring the insurers in default regarding payment of the indemnity. It noted that the insured had also failed to establish the amount of the loss and, therefore, the conditions for triggering the term for payment of the indemnity contemplated under Article 1080 of the Commercial Code were not met, nor were those for generating default interest:
   
   “In summary, the Arbitral Tribunal does not observe that the defendant co-insurers have incurred a breach of the payment term (…) nor much less that it gives rise to an award of default interest, pursuant to Article 1080 of the Commercial Code.”
   (…)
   – As of the date of the adjuster’s communication (October 22, 2022), there was no ‘accreditation’ of the loss by the [insured] under the terms required by Article 1077 of the Commercial Code.”
    
5. The adjuster’s report as a “confession” by the insurer
   Although the Tribunal indicated that the adjuster’s report is not binding upon the insurers, in the specific case the insurers admitted their obligation to indemnify the insured when they referred to the adjuster’s analysis as the basis for the payment made in its favor.
   
   According to the Tribunal, such statement constituted an express acknowledgment of liability by the insurers for the payment of loss of profits to the insured, which, for substantive and procedural purposes, is equivalent to a confession, in the Tribunal’s words:
   
   “The insurers’ interpretation that they were obliged to indemnify the [insured] for loss of profits is evidenced not only in the aforementioned performance, but also in the context of the arbitral proceeding itself, since in their answers to the claims, the insurers admit their obligation insofar as they refer to the payment made to the insured, according to the adjuster’s analysis, as an express assumption of their responsibility for the loss of profits, which constitutes a confession.”