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

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

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.

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.

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 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 not do so. Accordingly, this Court cannot say that the arbitration award was the result of plain mistake of fact."

On appeal the plaintiff concedes that without a record she cannot question the sufficiency of the evidence. However, she argues that here the record was sufficiently reconstructed to show that there was no evidence of comparative fault of the plaintiff or that the uninsured driver was anything but negligent. The plaintiff attempts to buttress her argument by pointing out that the defendant did not present evidence to refute or contradict that offered in the depositions and the affidavit. For these reasons, the plaintiff insists that the trial judge should have found that the arbitrator's decision was based on plain mistake.

The plaintiff also contends that by acceding to the arbitrator's refusal to respond to the court's request for clarification, "the trial court abdicated its statutory duty to determine whether a plain mistake had been committed and to conduct a meaningful review of the arbitrator's decision."

The defendant argues that the superior court properly granted its motion, since Rand could not carry her burden of demonstrating that the arbitrator's award was based on plain mistake without a record of the hearing. In its brief, the defendant emphasizes that the arbitrator's award was based on trial testimony, trial exhibits, and the weight and credibility accorded the testimony of live witnesses. It is, therefore, the defendant's position that the trial court did not err in refusing to consider the deposition transcripts and the affidavit offered by the plaintiff as a substitute for a record of the hearing.

The defendant also argues that since the arbitrator was not obligated to explain the reasons for his award, the superior court could not order him to do so. We find these arguments persuasive and supported by the law, and thus we affirm the trial court's order.

When parties agree to submit a dispute to arbitration, they select one or more arbitrators, present evidence in an informal setting, and obtain a speedy and inexpensive resolution. See Demers Nursing Home, Inc. v. R.C. Foss & Son, Inc., 122 N.H. 757, 761, 449 A.2d 1231, 1233 (1982). The decision is binding on the parties and is only reviewable by the superior court as set out in RSA 542:8. "This section permits the court to correct or modify the award for plain mistake, or vacate it for fraud, corruption, or misconduct, or on the ground that the arbitrators have exceeded their...