[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff has filed with this court an application for order to proceed with arbitration. The parties entered into a construction contract. A dispute has arisen thereunder. The operative language of the contract with respect to arbitration is as follows: See Exhibit "A" attached hereto.
This court concludes that there is no ambiguity. The contract language is clear. The contract provides for consensual arbitration. Both parties have not consented.
Accordingly, the application for order to proceed with arbitration is denied.
HIGGINS, J.
EXHIBIT A
38. ARBITRATION
38.1 By written consent signed by both parties to this Contract, a claim, counterclaim, dispute or other matter in question between the parties hereto arising out of or relating to the CONTRACT DOCUMENTS or the breach thereof may be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American CT Page 10934 Arbitration Association then obtaining, subject to the limitations and restrictions stated in paragraphs 38.2 and 38.3 below. This agreement so to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith as provided in this Article 38 will be specifically enforceable under the prevailing arbitration law of any court having jurisdiction.
38.2 Notice of request for arbitration pursuant to this Article 38 must filed in writing with the other parties to this Contract and with the American Arbitration Association and a copy shall also be filed with the ENGINEER. The request must be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall any such request for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
38.3 All requests for arbitration and all answering statements thereto which include any monetary claim must contain a statement that the total sum or value in controversy as alleged by the party making such request or answering statement is not more than $200,000 (exclusive of interest and costs). The arbitrators will not have jurisdiction, power or authority to consider, or make findings (except in denial of their own jurisdiction) concerning, any claim, counterclaim, dispute or other matter in question where the amount in controversy thereof is more than $200,000 (exclusive of interest and costs) or to render a monetary award in response thereto against any party which totals more than $200,000 (exclusive of interest and costs).
38.4 No arbitration arising out of, or relating to, this Contract may include, by consolidation, joinder or in any other manner, any person or entity (including ENGINEER, ENGINEER'S agents, employees or consultants) who is not a party to this CONTRACT.
38.5 By written consent signed by all the parties to this CONTRACT and containing a specific reference hereto, the limitations and restrictions contained in paragraphs 38.2 and 38.3 may be waived in whole or in part as to any claim, counterclaim, dispute or other matter specifically described in such consent. No consent to arbitration respect of a specifically described claim, counterclaim, dispute or other matter in question will constitute consent to arbitrate any other claim, counterclaim, dispute or other matter in question which is not specifically described in such consent or in which the sum or value in controversy exceeds $200,000 (exclusive of interest and costs) or which is with any party not specifically CT Page 10935 described therein.
38.6 The award rendered by the arbitrators will be final, not subject to appeal and judgment may be entered upon it in any court having jurisdiction thereof.
38.7 Unless otherwise agreed in writing, the CONTRACTOR shall carry on the WORK and maintain its progress during the resolution of any dispute or other matter in question between the CONTRACTOR and the OWNER while the same is pending for decision by an arbitrator, if arbitration is agreed to by both parties to the Contract, or in court.
38.8 All arbitration proceedings shall be held in the County in which the PROJECT is located.