Rand v. Aetna Life & Cas. Co., 89-321

• Court: Supreme Court of New Hampshire
• Writing for the Court: JOHNSON
• Citation: 571 A.2d 282,132 N.H. 768
• Parties: Dawny J. RAND v. AETNA LIFE & CASUALTY COMPANY.
• Docket Number: No. 89-321,89-321
• Decision Date: 09 March 1990

Page 282

571 A.2d 282 132 N.H. 768 Dawny J. RAND
v.
AETNA LIFE & CASUALTY COMPANY. No. 89-321. Supreme Court of New Hampshire. March 9, 1990.

Upton, Sanders & Smith, Concord (Russell F. Hilliard, orally, and Gilbert Upton on the brief), for plaintiff.

Sulloway Hollis & Soden, Concord (Peter A. Meyer, orally, and Robert M. Larsen on the brief), for defendant.

[132 N.H. 769] JOHNSON, Justice.

This case concerns a petition filed in superior court by the plaintiff, Dawny J. Rand, to modify an arbitrator's award which denied her claim for uninsured motorist benefits from the defendant, Aetna Life & Casualty Company (Aetna). Her petition was dismissed when the Trial Court (Nadeau, J.) granted the defendant's motion for summary judgment. The court stated that it could not determine from the arbitrator's one-sentence ruling whether the decision was based on "plain mistake" within the meaning of RSA 542:8, since there was no record of the arbitration hearing. On appeal, the plaintiff contends that the trial court erred in granting the defendant's motion, since there was sufficient information before it to determine that the award was based on plain mistake. The plaintiff also contends that the trial court erred in failing to order the arbitrator to explain his award. We affirm.

The relevant facts are as follows. The plaintiff injured her right foot in an accident involving an uninsured motorist on June 21, 1986. In addition to Rand and the uninsured driver, Kurt Zeller, three people witnessed the accident: David Brown, James Nesbit and Patricia Nesbit. After incurring substantial debt from medical bills and lost wages, Rand made a claim for insurance benefits under an Aetna automobile policy which provided her with protection against uninsured motorists in the amount of $100,000. Aetna denied her claim.

The Aetna policy provided that in the event of a dispute concerning the plaintiff's right to recover, or the amount of coverage, the parties were to proceed to arbitration in accordance with the rules of the American Arbitration Association. The policy also stated that Rand "and the Company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this coverage." In accordance with this provision, the plaintiff made a demand for arbitration following Aetna's denial of her claim for coverage.

During the day-long hearing, the arbitrator, Frederick W. Hall, Jr., Esquire, was presented with oral testimony and exhibits on the issues of the negligence of the uninsured motorist and the comparative negligence of the plaintiff. Since neither Rand nor Aetna requested that a stenographic record of the proceedings be kept, no record was made of the evidence.

Page 283

On December 14, 1987, the arbitrator issued an award which stated that "[t]he claim of Dawny J. Rand against Aetna Life and Casualty Company is hereby DENIED." The arbitrator further denied Rand's motion to reconsider and clarify the award. Rand then petitioned the superior court to modify the award pursuant [132 N.H. 770] to RSA 542:8 because the arbitrator "made a plain mistake in not finding negligent behavior on the part of [the uninsured driver], and in not finding that such behavior proximately caused Plaintiff's injuries."

In response to Rand's petition, Aetna filed dispositive motions, including one for summary judgment, on the ground that Rand could not demonstrate plain mistake without a record of the arbitration proceeding. Rand filed an objection to Aetna's motion and attached the transcripts from the prehearing depositions of Rand, Brown and the Nesbits. The plaintiff also attached the affidavit of her then counsel, John G. Richardson, Esq., which reiterated his understanding and recollection of the testimony that Zeller, who was not deposed, gave at the hearing.

The superior court responded by entering an order which requested "a brief statement as to the basis for his decision" from the arbitrator, since without some clarification the court found "it impossible to rule on the motions." The arbitrator declined to respond to the court's request, and the defendant's motion for summary judgment was granted on June 19, 1989. In its order the court noted that "[t]he plaintiff could have requested a stenographic record of the arbitration hearing but did...