Moen v. State
| Decision Date | 08 April 1975 |
| Docket Number | No. 1042--III,1042--III |
| Citation | 13 Wn.App. 142,533 P.2d 862 |
| Parties | Gilbert H. MOEN, Appellant v. STATE of Washington, Respondent. |
| Court | Washington Court of Appeals |
Ray L. Greenwood, Moses Lake, for appellant.
Slade Gorton, Atty. Gen., Steven Milam, Asst. Atty. Gen., Ellensburg, for respondent.
This is an appeal from a vacation of an arbitrators' award, awarding plaintiff $10,900 for additional expenses incurred in completing the duct work for a building. There were no findings of fact or conclusions of law stated in the award.
The contract for the mechanical work was let in November-December 1970, and the project was completed in March 1972. Throughout the period from April 1971 to March 1972 constant changes in the duct work had to be made. On July 28, 1972, after the completion of the building, a claim was submitted by the subcontractor doing the mechanical work for $39,700. For the purpose of this decision, the prime contractors and subcontractors will be referred to as plaintiffs.
Article 38 of the contract required that all claims 'under this contract and under the law' be submitted to arbitration in accordance with the standard form of arbitration procedure of the American Institute of Architects. Article 14 1 of the contract gave the architect authority to make minor changes in the work not involving extra cost, except in certain emergencies. Changes involving extra costs generally were required to be authorized by the owner. Article 15 required the contractor to give the architect and the owner written notice of any claims involving extra costs.
On April 7, 1971, the architect sent the prime contractor, Gilbert H. Moen & Co., a set of clarification drawings and indicated that there would be no cost change involved. These were subsequently received by the Grant County Mechanical Contractors, one of the subcontractors, whose reply letter of April 14, 1971, made no reference to possible cost changes. During the summer months of 1971 at least one change order was processed in compliance with Article 14 of the contract. The testimony elicited at the hearing indicated that neither the owner nor the prime contractor were aware of any other cost changes. Throughout the construction of this building there were on-the-job meetings approximately once a week which included the subcontractors, prime contractor, the owner's representatives and the architect.
The issue is whether the trial court erred in vacating the arbitrators' award. The applicable statute is RCW 7.04.160(4). It provides:
In any of the following cases the court shall after notice and hearing make an order vacating the award upon the application of any party to the arbitration:
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(4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made.
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An award shall not be vacated (on the grounds set forth in subdivision (4)) unless the court is satisfied that substantial rights of the parties were prejudiced thereby. 2
The plaintiffs contend that the court is bound by the award of the arbitrators unless the award, on its face, shows an adoption of an erroneous rule or mistake in applying the law; that neither of these two elements exist in the instant case and the trial court should have confirmed the award. On the other hand, the defendant (State of Washington) urges that the arbitrators made a clear and plain mistake in their construction of the law of waiver to plaintiffs' claim; and that this matter was brought to the attention of the arbitrators, but to no avail. The defendant further emphasizes that it is an impossibility for a party to have waived a right if it did not have the information upon which the waiver was based until after the fact. The plaintiffs' response is that Article 14 was waived because of the architect's statement to the subcontractors and the prime contractor that 'you get the work done and you get it done now, so we can use the building.'
Our courts early established the policy that 'An award which appears to have been fairly made, should not, on light grounds, be disturbed by the Court, . . .' Bachelder v. Wallace, 1 Wash.Terr. 107, 109 (1860); Accord, Northern States Constr. Co. v. Banchero, 63 Wash.2d 245, 249, 386 P.2d 625 (1963). The general rule is that arbitrators, when acting under the authority granted them by the contract between the parties, become the judges of both the law, and the facts. Unless the award on its face shows the...
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...357, 43 P. 341 (1896) ; Lent’s, Inc. v. Santa Fe Engineers, Inc. , 29 Wash. App. 257, 265, 628 P.2d 488 (1981) ; Moen v. State , 13 Wash. App. 142, 145, 533 P.2d 862 (1975). For purposes of argument sake, we review all three pages of the arbitration panel majority members’ decision for lega......
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