Murry v. Civil Service Emp. Ins. Co.

• Decision Date: 29 September 1967
• Citation: 254 Cal.App.2d 796,62 Cal.Rptr. 659
• Parties: Bryan MURRY, Petitioner and Respondent v. CIVIL SERVICE EMPLOYEES INSURANCE CO., Defendant and Appellant. Civ. 30017.
• Court: California Court of Appeals Court of Appeals

Page 659

62 Cal.Rptr. 659

254 Cal.App.2d 796

Bryan MURRY, Petitioner and Respondent v. CIVIL SERVICE EMPLOYEES INSURANCE CO., Defendant and Appellant.

Civ. 30017.

Court of Appeal, Second District, Division 3, California.

Sept. 29, 1967.

Spray, Gould & Bowers, Los Angeles, for appellant.

Gabler, High & Clark and Jack B. Clark, Van Nuys, for respondent.

COBEY, Associate Justice.

This is an appeal from a judgment confirming an uninsured motorist arbitration award in the amount of $9,260. The appeal lies. (Code Civ.Proc. §§ 1294(d), 1287.4.) ¹

The sole basis of this appeal is that the award was improperly confirmed because it was incomplete and ineffective since three rules of the American Arbitration Association were violated in the course of the arbitration under review and the arbitration agreement of the parties provided that such arbitration would be 'in accordance with' such rules. ²

The trial court concluded that there had been substantial compliance with such rules in the arbitration under review and that appellant insurer had not suffered any prejudice whatsoever by reason of the noncompliance involved. With this conclusion we agree.

The three rules that are claimed to have been violated are as follows:

'Section 31. Communication With Arbitrator--There shall be no direct communication between parties and the Arbitrator other than at oral hearings. Any other oral or written communications from the parties to the Arbitrator, be it prior or subsequent to the conclusion of the arbitration, shall be directed to the Administrator for transmittal to the Arbitrator.'

'Section 32. Time--The Arbitrator shall render his Award promptly and, unless otherwise agreed by the parties, or specified by law, not later than thirty days from the date of the close of the hearings, or if oral hearings have been waived, from the date of transmitting the final statements and proofs to the Arbitrator.'

'Section 36. Delivery of Award to Parties--Parties shall accept as legal delivery of the Award the placing of the Award or a true copy thereof in the mail by the Tribunal Clerk, addressed to such party at his last known address or to his attorney, or personal service of the Award, or the filing of the Award in any manner which may be prescribed by law.'

The claimed violation of these rules occurred as follows. After the arbitration hearing was held and completed on May 5, 1965, and after the local office of the American Arbitration Association had been notified by phone by the arbitrator on May 7, 1965, of all of the essentials of his proposed award, the arbitrator phoned the attorney for the insured and gave him upon his return call, the same information which he had previously given to the Association. Thereafter a formal award in strict accordance with this information was prepared by the local office of the Association and sent to the arbitrator for signature. He signed this formal award and returned it on May 12th or May 13th to the local office of the Association for service upon the parties. This the Association did not do because contemporaneously with the receipt of the formal award from the arbitrator it was advised by the attorney for appellant that apparently there had been some communication between the arbitrator and the insured or his attorney and that the arbitrator should be asked by the Association for an explanation of this. This request was repeated by letter on May 18, 1965. Upon inquiry by the Association the arbitrator, on May 21st, acknowledged to the Association by letter that he apparently had inadvertently and unintentionally violated one of 'the laws' of the Association by his contact with the attorney for the insured after he had made his decision in the matter and had communicated it informally to the Association. In this letter he disqualified himself from acting as arbitrator further in the matter. Thereupon, by letter dated May 27, the Association notified counsel for both parties that it had declared the office of arbitrator in the matter vacant and that the matter must be rearbitrated.

The attorney for the insured did not acquiesce in this determination of the Association. Instead, on June 3rd he appeared at the local office of the Association and obtained from it, among other things, a photostatic copy of the undated but signed formal award of the arbitrator and proceeded the next day to serve by mail appellant and its counsel with copies of this copy. On June 18th he initiated the confirmation proceedings under review by filing a petition to confirm the award. ³

It is clear from the foregoing summarization of the evidence that two of the three quoted rules of the Association were violated. There was direct communication between the arbitrator and one of the parties through his attorney and the formal award, in its original form, was never delivered to the parties by the Association as required by its quoted rule. However, we do not believe that the quoted rule as to the time in which the arbitrator must render his award was violated unless the award submitted to the trial court for confirmation, that is, the signed but undated copy of the formal award, which the Association itself never delivered to the parties to the arbitration, be regarded as a nullity or otherwise unenforcible by a confirmation proceeding. ⁴

We do not so regard this award. All that the California Arbitration Act requires with respect to the form and contents of an arbitrator's award is as follows: 'Section 1283.4. The award shall be in writing and signed by the arbitrators concurring therein. It shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.' The award under review clearly meets each and all of the three requirements of this section. ⁵

There is no question but that the service of the formal award by the attorney for the insured upon appellant and its counsel did not comply Exactly with either the manner of service required by the California Arbitration Act ⁶ or with that required by the quoted rule of the Association. However, this irregularity, in the service of the award must be disregarded for three reasons. In the first place appellant by its own conduct is barred from raising it. It failed to serve and file a response to the confirmation petition which was duly served upon it, ⁷ and therefore all of the allegations of such petition are deemed to be admitted by it, including the one that the award submitted to the court for confirmation (a copy of which was attached to the petition and incorporated therein by reference) was 'in all respects a proper award.' (§ 1290.) In the second place, the sole function of the service of an award upon the parties to an arbitration is to give notice to them of the existence and contents of the award and this function was fully performed by the service which was made upon appellant and its counsel. Appellant does not and never has claimed that the award submitted to the court differs in any way from that submitted to the Association by...