Opinion
No. CV03-0179644S
March 21, 2007
MEMORANDUM OF DECISION RE APPLICATION TO CONFIRM ARBITRATION AWARD
The plaintiff instituted this action on August 19, 2003 alleging personal injuries suffered as a result of a motor vehicle accident with the defendant which occurred on February 22, 2002 in Naugatuck, CT.
The trial of the case was to commence on November 16, 2005. The parties agreed at that time to enter into a binding hi/lo arbitration of the matter rather than continue with trial. The parties executed an arbitration agreement dated November 30, 2005. Attorney Albert Zakarian was the arbitrator chosen by the parties. The arbitration agreement did not specify a time period within which the arbitrator was to render his decision.
Due to delays in scheduling, the arbitration hearing did not take place until June 12, 2006. At the arbitration hearing, testimony and extensive evidence was submitted to Attorney Zakarian. Due to the fact that the arbitration agreement failed to provide for a time period when the decision was to be rendered, the statutory 30-day time period of General Statutes § 52-416(a) would have applied.
General Statutes § 52-416(a) provides:
(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.
However, evidence provided at the hearing on the application to confirm the arbitration award indicated that on July 28, 2006, which was after the 30-day time period to render the decision, defendant's counsel received a telephone call from plaintiff's counsel to discuss what should be done about the delay in receiving the arbitrator's decision. As a result of the telephone conversation, it is undisputed that both counsel agreed that plaintiff's counsel would draft a letter from both counsel to Attorney Zakarian requesting his decision.
Defendant's counsel attempted follow up contact with plaintiff's counsel on August 8 and August 10, 2006 to finalize the joint correspondence to be sent to Attorney Zakarian. Plaintiff's counsel does not dispute the follow up attempts but indicated he was away on vacation at that time. Defendant's counsel then drafted a proposed joint letter for plaintiff's counsel to review and faxed that letter to plaintiff's counsel on August 30, 2006. The faxed cover sheet indicates it was received by plaintiff's counsel.
Throughout this time period, plaintiff's counsel did not raise the issue of the late filing of the arbitrator's decision with defendant's counsel or with the arbitrator. Attorney Zakarian issued the arbitration decision on September 12, 2006. The arbitration decision was not favorable to the plaintiff.
The plaintiff did not file an application to vacate the arbitration award within 30 days of its issuance as provided General Statutes § 52-420(b).
General Statutes § 52-420(b) provides:
(b) No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.
The defendant on October 13, 2006 filed an application to confirm the arbitration award pursuant to General Statutes § 52-417 which is the subject of this decision.
General Statutes § 52-417 provides:
At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.
By way of objection to application to confirm the arbitration award, the plaintiff on December 29, 2006 claims that General Statutes § 52-416 applies in this case. The claim is that the arbitrator's decision had no legal effect since it was issued beyond the 30-day time period and the court cannot confirm the decision. Plaintiff further claims at no time was a waiver of the time period agreed to by the parties.
The standard of review for arbitration decisions was recently set forth in Milford v. Coppola Construction Co., 93 Conn.App. 704, 891 A.2d 31 (2006):
[Our Supreme Court] has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. The well established general rule is that [w]hen the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement. . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law as long as the award conforms to the submission. . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . Furthermore, in applying this general rule of deference to an arbitrator's award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators' acts and proceedings. . . Further, [j]udicial review of arbitral decisions is narrowly confined. . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that. . . the interpretation of the agreement by the arbitrators was erroneous. (Citations omitted; internal quotation marks omitted.) Id., 709-10.
With this precedent as a guideline, the court reviews the defendant's application to confirm.
The court views two issues to be of significance in deciding the application to confirm.
The first issue is whether the plaintiff's failure to move to vacate the award pursuant to General Statutes § 52-420(b) is fatal to the plaintiff's objection to the application to confirm.
In Wu v. Chang, 264 Conn. 307, 823 A.2d 1197 (2003) the Supreme Court found as follows:
Under § 52-420(b). . . a party seeking an order to vacate an arbitration award on grounds of corruption, fraud or undue means — or on any other ground set forth in § 52-418 — must do so within the thirty day limitation period set forth in § 52-420(b). In other words, once the thirty day limitation period of § 52-420(b) has passed, the award may not thereafter be attacked on any of the grounds specified in. . . § 52-418. . . including fraud. To conclude otherwise would be contrary not only to the clear intent of the legislature as expressed in §§ 52-417, 52-418 and 52-420(b), but also to a primary goal of arbitration, namely, the efficient, economical and expeditious resolution of private disputes. (Citations omitted; internal quotation marks omitted.) Id., 313.
Further, the court in All Seasons Services, Inc. v. Guildner, 94 Conn.App. 1, 891 A.2d 97 (2006) took up the issue of whether the response to an application to confirm by the opposing party should be considered as a motion to vacate pursuant to § 52-420(b). There the court concluded that if the response was not filed within 30 days of arbitration decision as required by § 52-420(b), then the response was not timely and the application to confirm must be granted pursuant to § 52-417.
The second issue the court must deal with is that of waiver.
In AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 866 A.2d 582 (2005) the court provided the definition for waiver:
Waiver is the intentional relinquishment or abandonment of a known right or privilege. . . [V]arious statutory and contract rights may be waived. For example, statutory time limits may be waived. Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed. . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so. (Citations omitted; internal quotation marks omitted.) Id., 623.
The court in AFSCME, supra, concluded that the doctrine of waiver should be applied to a party contesting the untimeliness of an unfavorable arbitration award in light of its conduct.
In Capozzi v. Liberty Mutual Fire Ins. Co., 32 Conn.App. 250 (1993), 629 A.2d 424; aff'd by 229 Conn. 448, 642 A.2d 1 (1994), the court succinctly reviewed the issue of waiver as to the timeliness to object to an arbitrator's award:
Our Supreme Court has made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. . . This same principle has been applied in the arbitration context, where the court has held that a plaintiff's failure to raise the issue of timeliness prior to the issuance of an arbitration award operates as a waiver of the right to assert the award's lack of timeliness. In Diamond Fertiliser Chemical Corporation v. Commodities Trading International Corporation, 211 Conn. 541, 554, 560 A.2d 419 (1989), the court rejected the plaintiff's belated objection to the timeliness of an award, stating adamantly that it would not reward such conduct where the plaintiff attempted to manipulate the arbitration process by reserving objection until after the announcement of the arbitral award. Id., 256.
In view of the case law cited herein, the court makes the following conclusions.
The plaintiff was aware that Attorney Zakarian's decision was not timely decided by initiating correspondence with defendant's counsel on July 28, 2006, more than 30 days after the decision was due, regarding the issuance of the award. The plaintiff did not object to the tardiness of the decision at that time. The plaintiff did not thereafter take any affirmative action to object to the timeliness of the award up to the date of its issuance by Attorney Zakarian on September 12, 2006.
Thereafter, the plaintiff failed to move to vacate the award as required pursuant to General Statutes § 52-420(b) within the 30-day time period. The court finds that the plaintiff's failure to do so was fatal.
In addition, in applying the doctrine of waiver to this case, the plaintiff should not be rewarded for waiting in anticipation of the issuance of the award and then, when the decision was not favorable to the plaintiff, then and only then, raising objection to the confirmation of the award as untimely and only after the defendant had moved to confirm the award.
In conclusion, the court grants the defendant's application to confirm the arbitration award dated October 13, 2006 for the reasons stated.