Opinion
66753-0-I
06-11-2012
SARA ROBERTSHAW, Respondent, v. DOLORES JOHNSON, Appellant.
UNPUBLISHED OPINION
Lau, J.
Dolores Johnson appeals the judgment entered on a mandatory arbitration award in favor of Sara Robertshaw. Johnson argues that the trial court should have reduced the arbitrator's award to reflect previous insurance payments to Robertshaw. However, Johnson did not seek an offset at arbitration and failed to seek review of the arbitration award by requesting a trial de novo following entry of the arbitrator's award. Because the judgment entered on the arbitration award is not appealable, we dismiss.
FACTS
As she crossed a street at a crosswalk, Sara Robertshaw was struck by a car driven by Dolores Johnson on October 30, 2007. Robertshaw sued Johnson in 2010. She alleged negligence and sought damages. Johnson answered the complaint and raised affirmative defenses of comparative fault and failure to mitigate damages. The case was removed to mandatory arbitration. Following arbitration, the arbitrator found Johnson to be 100 percent liable and awarded damages to Robertshaw of $12,444. That amount included $4,662 in medical specials, $144 in lost wages, $6,500 in general damages, and statutory costs and attorney fees of $1,238.
Neither party requested a trial de novo. Twenty-one days after the arbitrator's final award was filed, Robertshaw filed a motion in King County Superior Court for entry of judgment on the award. In response, Johnson asked the court to reduce the amount awarded for medical specials by $4,437, the amount Johnson's insurer, State Farm, had already paid to Robertshaw for medical treatment. Johnson proposed that the court enter judgment for $8,0006. In support of this request, Johnson submitted the declaration of a State Farm insurance adjuster who confirmed the amount of the prior insurance payments. In reply, Robertshaw pointed out that Johnson did not plead offset as an affirmative defense, did not present any evidence regarding her entitlement to an offset at arbitration, and failed to request a trial de novo following arbitration. The court entered judgment for the full amount of the arbitrator's award, $12,444, and denied Johnson's motion to reconsider. Johnson appeals.
ANALYSIS
This case involves arbitration under chapter 7.06 RCW, which authorizes courts to impose mandatory arbitration of civil suits where the amount claimed is $50,000 or less. RCW 7.06.020(1); Williams v. Tilaye, __ Wn.2d __, 272 P.3d 235, 238 (2012). The purpose of authorizing mandatory arbitration in certain civil cases is to alleviate court congestion and reduce delay in hearing civil cases. Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 526, 79 P.3d 1154 (2003); Dill v. Michelson Realty Co., 152 Wn.App. 815, 819, 219 P.3d 726 (2009). The procedures to implement the mandatory arbitration of civil actions are as provided in the Superior Court Mandatory Arbitration Rules (MAR) adopted by our Supreme Court. RCW 7.06.030; Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997).
The mechanism to obtain judicial review of a mandatory arbitration ruling is to timely request a trial de novo. Malted Mousse, 150 Wn.2d at 529. RCW 7.06.050 provides the mechanism to seek review of an arbitration award and, if no request for a trial de novo is made, the mechanism to reduce the arbitration award to judgment:
(1) Following a hearing as prescribed by court rule, the arbitrator shall file his decision and award with the clerk of the superior court, together with proof of service thereof on the parties. Within twenty days after such filing, any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo in the superior court on all issues of law and fact. Such trial de novo shall thereupon be held, including a right to jury, if demanded.
(2) If no appeal has been filed at the expiration of twenty days following filing of the arbitrator's decision and award, a judgment shall be entered and may be presented to the court by any party, on notice, which judgment when entered shall have the same force and effect as judgments in civil actions.
MAR 6.3 expands upon the consequences of failing to request trial de novo:
Judgment. If within the 20-day period specified in rule 7.1(a) no party has properly sought a trial de novo, the prevailing party on notice as required by CR 54(f) shall present to the court a judgment on the award of arbitration for entry as the final judgment. A judgment so entered is subject to all provisions of law relating to judgments in civil actions, but it is not subject to appellate review and it may not be attacked or set aside except by a motion to vacate under CR 60.(Boldface omitted.)
Thus, according to the statutory scheme and the rules governing mandatory arbitration, an arbitration award is not appealable. MAR 6.3; Cook v. Selland Constr., Inc., 81 Wn.App. 98, 912 P.2d 1088 (1996). If the aggrieved party fails to seek a trial de novo within the deadline set forth in MAR 7.1(a), the prevailing party is entitled to an entry of judgment on the award. MAR 6.3. Restricting judicial review of arbitration awards promotes the legislative purposes of finalizing disputes, alleviating court congestion, and reducing delay. Carpenter v. Elway, 97 Wn.App. 977, 984, 988 P.2d 1009 (1999).
The decision in Dill v. Michelson Realty is instructive. In Dill, the plaintiffs filed suit under the Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, alleging that the defendants unlawfully disposed of or destroyed their personal property. The plaintiffs sought damages in excess of $125,000, but for purposes of arbitrability, agreed to waive any claim in excess of $50,000. Following arbitration, the arbitrator awarded damages of $45,000, but in a separate award, awarded approximately $28,000 in attorney fees and costs.
The defendants did not request a trial de novo, but in moving for entry of judgment on the arbitration award, asked the court to reduce the attorney fees so the total award would not exceed $50,000. The superior court entered judgment on the award, declining to reduce it as the defendants requested. Division Two of this court dismissed the appeal because the defendants "decided against a trial de novo and instead filed an appeal that the arbitration rules do not allow." Dill, 152 Wn.App. at 822.
Parties that fail to request a trial de novo may not alter an arbitration award by "requesting action by the Superior Court which would amend that award." Trusley v. Statler, 69 Wn.App. 462, 465, 849 P.2d 1234 (1993). In Trusley, the plaintiff sued the Statlers for breach of contract. Following mandatory arbitration, the arbitrator dismissed the complaint but denied the Statlers' request for attorney fees under RCW 4.84.185. When they moved for entry of judgment on the award, the Statlers asked the superior court to award attorney fees based on the offer of settlement statute, RCW 4.84.250. The trial court awarded fees. On appeal, Division Three of this court concluded that since the Statlers failed to ask the arbitrator to award fees on the basis requested and then did not seek a trial de novo, they were "limited to judgment on the arbitrator's award." Trusley, 69 Wn.App. at 464. "Both parties, by not asking for a trial de novo, accepted the arbitrator's award and may not alter it by requesting action by the Superior Court which would amend that award." Trusley, 69 Wn.App. at 465.
As in Trusley, because Johnson did not seek review of the award, the trial court could only enter judgment but could not amend the award. And as the trial court correctly concluded, Mercier v. GEICO Indemnity Co., 139 Wn.App. 891, 903, 165 P.3d 375 (2007), does not compel a different result. In that case, Mercier sued GEICO, his insurance company. Mercier had previously received a total of $35,000 in payments from both GEICO and the tortfeasor's insurer. GEICO argued at arbitration that it was entitled to offset the damages awarded by amount of insurance benefits already received by Mercier. The arbitrator ruled, however, that he lacked authority to decide that issue and referred the matter to the superior court. Following arbitration, the arbitrator awarded $36,000 in damages.
Neither party sought a trial de novo. In moving for entry of judgment, Mercier proposed judgment for $36,000, while GEICO proposed judgment of $1,000. The trial court applied the offset and entered judgment for $1,000. Mercier appealed. This court observed that nothing in the mandatory arbitration rules prevented the arbitrator from resolving all issues in the case, including offset. Nonetheless, we concluded that the trial court did not improperly amend the award when it applied the offset. We pointed out that in Trusley, the superior court revisited the arbitrator's decision to deny fees and modified it. Whereas in Mercier, the arbitrator decided that offset was a coverage issue beyond the scope of arbitration and expressly reserved the issue for the court. In deciding that explicitly reserved issue, the trial court "merely completed the adjudication of the undecided issues in the case." Mercier, 139 Wn.App. at 902.
Our decision in Mercier was premised on specific facts that are not present here. The arbitrator did not decline to resolve any issues raised or refer any issues to the court. Johnson did not ask the arbitrator to offset the damages and presented no evidence on the issue. Because Johnson failed to request a trial de novo, the trial court was required to enter judgment on the arbitration award. Having failed to seek review of the award by requesting a trial de novo, the judgment entered on the award is not appealable. Accordingly, we dismiss the appeal.
Johnson relies on several cases, including Tolson v. Allstate Ins. Co., 108 Wn.App. 495, 32 P.3d 289 (2001), and Sherry v. Financial Indemnity Co., 160 Wn.2d 611, 615, 160 P.3d 31 (2007), that are inapplicable because they involve private arbitration agreements under chapter 7.04A RCW. Such arbitrations are governed by different procedures and standards for review. Both Tolson and Sherry also involved uninsured motorist claim (UIM) arbitrations. Typically, UIM arbitration clauses limit arbitration to the issues of liability and calculation of damages but do not include coverage issues. See Price v. Farmers Ins. Co., 133 Wn.2d 490, 497, 946 P.2d 388 (1997).
We deny Robertshaw's request for attorney fees on appeal under RCW 7.06.060(1), MAR 7.3, and RAP 18.9. Neither MAR 7.3 nor RCW 7.06.060(1) require an award of fees since no trial de novo was held or requested. And the appeal is not "so totally devoid of merit that there was no reasonable possibility of reversal." Streater v. White, 26 Wn.App. 430, 435, 613 P.2d 187 (1980).