Conte v. City of Norwalk

• Decision Date: 03 May 1977
• Citation: Conte v. City of Norwalk, 376 A.2d 412, 173 Conn. 77 (Conn. 1977)
• Court: Connecticut Supreme Court
• Parties: Anthony F. CONTE v. CITY OF NORWALK.

Page 412

376 A.2d 412

173 Conn. 77

Anthony F. CONTE v.CITY OF NORWALK.

Supreme Court of Connecticut.

Argued Feb. 1, 1977.

Decided May 3, 1977.

Robert A. Slavitt, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for appellant(plaintiff).

Robert G. Zanesky, Corp.Counsel, East Norwalk, for appellee(defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

The plaintiff contractor and the defendant city were parties to an agreement which provided for arbitration of disputes.After the plaintiff submitted a claim to arbitration, the defendant filed a counterclaim with the arbitrators.The plaintiff objected, but the arbitrators ruled that they would hear evidence on the counterclaim.The arbitrators suspended hearings pending a court determination of the arbitrability of the counterclaim.The plaintiff sued for an injunction preventing the defendant from proceeding with the counterclaim in arbitration.The injunction was denied, and the plaintiff has appealed.

At oral argument, the plaintiff conceded that pursuant to this contract arbitrability is a question for the arbitrators, and stated that it is his contention that the arbitrators erred in their determination that the counterclaim is arbitrable.¹

Once it conceded that under this contract arbitrability is to be decided by the arbitrators, it becomes apparent that this suit to enjoin arbitration is inappropriate.In Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 357 A.2d 466, it was held that a party who failed to object to arbitration thereby waived his right to object to the arbitrability of the grievance after an award was rendered which conformed to the submission.This court explained (p. 63, 357 A.2d p. 471): "(W)here the question of arbitrability is committed to the arbitrator the court may, on a motion to vacate, entertain challenges to the award alleging disregard of the procedural limits in the parties' agreement with regard to arbitration as they apply to this issue.In any other instance, procedural irregularities will be deemed waived unless the party asserting them compels a prior judicial resolution of this issue."²(Emphasis added.)

When arbitrability is for the arbitrators, the time to challenge the arbitrators' determination of arbitrability in court is not in advance of arbitration, but after the award is made.Before the award, courts may determine arbitrability where the question is one for the courts.SeePolicemen's and Firemen's Retirement Board v. Sullivan, 173 Conn. 1, 376 A.2d 399.But when arbitrability is assigned by the contract to the arbitrators, courts may not make an independent determination of arbitrability.The courts are "bound by the arbitrator's determination unless that determination clearly falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties' agreement."Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279, 281.Before the arbitrators have made their...