[Dis-res] RDDR Summary (May 21 - 25)

[Kelly J Niemeyer]

Recent Developments in Dispute Resolution
Willamette University, College of Law
Center for Dispute Resolution
June 21 - 25, 2004
--------------------

THIS WEEK:

1.        Arbitration:  An arbitration order entering a stay, as opposed
to a dismissal, is not an appealable final order. (5th Cir., June 7, 2004)

2.        Arbitration:  When one party files a suit in court, Louisiana
state law requires the opposing party to move for arbitration before
participating in the lawsuit, or the right to arbitration is waived. (La.
App. 3 Cir., June 9, 2004)

3.        Arbitration:  An arbitrator’s award that was in excess of an
undisclosed cap on damages was based on a matter not submitted to him, and
the court can modify the award based on the extrinsic damages cap without
affecting the award’s merits. (Utah App., June 10, 2004)

--------------------

CASE SUMMARY:

1.        Arbitration:  An arbitration order entering a stay, as opposed
to a dismissal, is not an appealable final order. (5th Cir., June 7, 2004)

Prescott-Follett & Assocs. et. al. V. Delasa/Prescott-Follett & Assocs.
et. al., 2004 U.S. App. LEXIS 11035 (5th Cir., June 7, 2004)

        Appellants Prescott-Follett et. al. sought a declaratory judgment
against appellees Delasa/Prescott-Follett et. al. claiming that
their agreement over operations in Nicaragua was improperly
modified.  The district court stayed litigation and compelled
arbitration pursuant to appellees’ motion based on an arbitration
provision within the operations agreement. Appellants then filed a
motion for a new trial, which the district court denied. 
Appellants appealed, claiming that the court of appeals had
jurisdiction to consider their appeal pursuant to section 16(a)(3)
of the Federal Arbitration Act, which allows courts to review
final decisions. The United States Court of Appeals for the Fifth
Circuit dismissed the appeal citing section 16(b) of the FAA,
which stipulates that “an arbitration order entering a stay, as
opposed to a dismissal, is not an appealable final order.”  MH

Full opinion available online at:  http://lexisnexis.com

 2.        Arbitration: When one party files a suit in court, Louisiana
state law requires the opposing party to move for arbitration before
participating in the lawsuit, or the right to arbitration is waived. (La.
App. 3 Cir., June 9, 2004)

LaGrange v. Dynamic Industries, Inc., 2004 WL 1254086 (La.App. 3 Cir.,
June 9, 2004)

Ricky LaGrange was employed by Dynamic Industries.  In 1996, the parties
entered into an employment contract that provided that LaGrange would
receive bonuses for his work.  In January of 1998, Moreno Energy Services,
Inc. purchased Dynamic.  In May 2000, LaGrange was terminated.  He sued to
collect his bonus of $100,000 from 1997.  LaGrange later amended the
amount of his claim, then moved for summary judgment.  The trial court
awarded LaGrange $100,000.  Dynamic appealed, and LaGrange unsuccessfully
moved for a new trial.  Dynamic claimed that LaGrange was bound to
arbitrate because his employment contract contained a clause requiring him
to submit all claims to arbitration.  LaGrange argued that Dynamic waived
its right to arbitrate by participating in the lawsuit.  The Court of
Appeals for the Third Circuit of Louisiana held that Dynamic did not file
its exception before it participated in the litigation.  Since Dynamic was
required to file its exception prior to the answer or judgment, it waived
its right to arbitrate this case.

Full opinion available at:
http://www.la3circuit.org/opinions/2004/06/060904/04-0100opi.pdf

3.        Arbitration:  An arbitrator’s award that was in excess of an
undisclosed cap on damages was based on a matter not submitted to him, and
the court can modify the award based on the extrinsic damages cap without
affecting the award’s merits. (Utah App., June 10, 2004)

Allstate Ins. Co. v. Wong, 2004 WL 1274301 (Utah App., June 10, 2004).

Wong was injured in an auto accident and recovered from his personal
insurance and the other driver’s insurance policy.  Wong also filed with
Allstate Insurance under his underinsured motorist policy, which had a
$100,000 limit.  Wong and Allstate were in dispute over the amount of
damages and agreed to arbitration.  Both parties signed an Arbitration
Agreement, which included a cap on damages not to be disclosed to the
arbitrator.  Both parties also signed a Binding Arbitration Agreement
outlining the issue as damages under the uninsured motorist claim.  The
arbitrator awarded Wong in excess of $100,000.  Allstate filed a Motion to
revoke the arbitrator’s award after Wong refused Allstate’s tender of
$100,000.  When the trial court ordered a modification of the arbitrator’s
award to reflect Allstate’s policy limit, Wong appealed.  Wong argued that
the trial court could not look at extrinsic evidence or modify the
arbitrator’s award.  Wong argued that under the Utah Arbitration Act
(UAA), the award must be vacated if the arbitrator has exceeded his
powers.  The Court of Appeals ruled that the trial court could have
concluded that the Arbitrator’s award was based on a matter not submitted
for arbitration, and the arbitrator would not have exceeded his powers.
The Court of Appeals also ruled that the trial court could correct the
arbitrator’s award without affecting the merits of the award. (CF)

Full opinion available online at:
http://www.utcourts.gov/opinions/appopin/allstate061004.htm

--------------------

Thank you for supporting WLO-DR. If you wish to tell a friend about our
service, or remove yourself from our mailing list, please do so at the
following link: http://www.willamette.edu/wucl/wlo/dis-res/

--------------------

Editor-in-Chief: Kelly J. Niemeyer

Writers: Mark Hogan, Cayce Falck, Juliet M. Bates

Faculty Advisor: Richard Birke
--------------------

Dis-res mailing list
Dis-res at willamette.edu
http://lists.willamette.edu/mailman/listinfo/dis-res