Belen v. Allstate Ins. Co., Docket No. 100597

• Decision Date: 31 January 1989
• Docket Number: Docket No. 100597
• Citation: 434 N.W.2d 203,173 Mich.App. 641
• Parties: Nancy Ann BELEN, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 203

434 N.W.2d 203

173 Mich.App. 641

Nancy Ann BELEN, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

Docket No. 100597.

Court of Appeals of Michigan.

Submitted June 28, 1988.

Decided Dec. 19, 1988.

Released for Publication Jan. 31, 1989.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Gregory M. Janks, Detroit, for plaintiff-appellee.

Mitchell & Leon by Dora P. Linder, and Gromek, Bendure & Thomas by Neal C. Villhauer, of counsel, Detroit, for defendant-appellant.

Before MICHAEL K. KELLY, P.J., and MAHER and WARSHAWSKY, ^* JJ.

WARSHAWSKY, Judge.

Defendant, Allstate Insurance Company, appeals as of right from a Wayne Circuit Court order vacating an arbitration award. We reverse.

On May 7, 1982, plaintiff, Nancy Ann Belen, was involved in an automobile accident with an uninsured motorist, Albertine Thompson. The accident occurred while plaintiff was eastbound on Puritan Street, attempting a left turn onto Greenfield, in the City of Detroit. Thompson was proceeding westbound on Puritan at the time of the collision.

Pursuant to a policy of insurance with defendant Allstate, plaintiff filed a claim for uninsured motorist coverage seeking the policy limit of $20,000. Defendant denied plaintiff's claim and plaintiff filed a demand for arbitration pursuant to the policy. On February 23, 1987, the claim was arbitrated. The issue presented was to what degree plaintiff and Thompson were each responsible for the accident. Following the arbitration, an award was rendered in favor of plaintiff in the amount of $5,000 by a majority decision, with one arbitrator dissenting.

Following the decision, plaintiff's attorney contacted the arbitrator selected by plaintiff to determine why the award was so low. Plaintiff's attorney learned that during deliberations, the defense and neutral arbitrators had refused to consider photographs of the vehicles and Thompson's testimony. Plaintiff filed a motion to vacate pursuant to MCR 3.602(J)(1)(b), for evident partiality, and MCR 3.602(J)(1)(d) for refusal to hear evidence material to the case. Defendant submitted affidavits of the defense and neutral arbitrators which indicated that they considered all photographs and Thompson's testimony.

On April 3, 1987, the Wayne Circuit Court granted plaintiff's motion to vacate the arbitration award and remanded the action to be rearbitrated before a different panel. On appeal, defendant argues that the trial court erred in vacating the arbitration award. We agree.

MCR 3.602 provides in part:

"(J) Vacating Award.

"(1) On application of a party, the court shall vacate an award if:

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"(b) there was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party's rights;

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"(d) the arbitrator refused to postpone the hearing on a showing of sufficient cause, refused to hear evidence material to the controversy, or otherwise conducted the hearing to prejudice substantially a party's rights."

In the trial court, plaintiff contended that the neutral and defense arbitrators refused to consider evidence material to the controversy, specifically the photographs of the vehicles which showed a damage pattern consistent with plaintiff's contention that the light was amber or red when she had attempted her left turn. Plaintiff also claimed that Thompson's deposition testimony, which the arbitrators allegedly refused to consider, was inconsistent and corroborated her own testimony. Plaintiff argued that, because her testimony was the only additional evidence at the arbitration, the neutral arbitrator was evidently partial because he found plaintiff to be negligent on the basis of no evidence.

The standard of judicial review from a private arbitration award is stated in DAIIE v. Gavin, 416 Mich. 407, 443, 331 N.W.2d 418 (1982), citing Howe v. Patrons' Mutual Fire Ins. Co. of Michigan, 216 Mich. 560, 570, 185 N.W. 864 (1921):

" '[W]here it clearly appears on the face of the award or the reasons for the decision as stated, being substantially a part of the award, that the arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made, the award and decision will be set aside.' "

This standard of review was expressly adopted by our Supreme Court for application to automobile insurance policy statutory arbitrations upon a motion to confirm or vacate arbitration awards. Id. Thus, it is well-settled that our review of alleged errors of law is limited to those which appear on the face of the award. See Donegan v. Michigan Mutual Ins. Co., 151 Mich.App. 540, 549, 391 N.W.2d 403 (1986). This standard precludes review on the basis that the award was against the great weight of the evidence or that it was not supported by substantial evidence. Donegan, supra.

In the present case, we find plaintiff's claim of "evident partiality" to be speculative at best. Partiality or bias which will allow a court to overturn an arbitration award must be...