IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIYf
-~-o0o-~~
MATHEW S. MIKELSON, Plaintiff-Appellee,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Defendant-Appellant
NO. 28332
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 99-l856)
MARCH 24, 2010
NAKAMURA, C.J., FOLEY and FUJISE, JJ.
OPINION OF THE COURT BY FOLEY, J.
Defendant-Appellant United Services Automobile
Association (USAA) appeals from the "Order Granting Plaintiff
Mathew S. Mikelson's Motion for 0rder Confirming Arbitration
Award" (Order) filed on December 7, 2006 in the Circuit Court of
the First Circuit (circuit court).l
On appeal, USAA contends the circuit court lacked
jurisdiction to decide the Motion for Order Confirming
Arbitration Award (Motion to Confirm) filed on October l7, 2006
by Plaintiff~Appellee MatheW S. Mikelson (Mikelson) because the
motion was moot. Mikelson contends this court lacks appellate
jurisdiction to hear this appeal. We disagree with both USAA and
Mikelson and affirm.
‘ The Honorable Bert I. Ayabe presided.
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I.
This case arises out of a January l7, 1999 accident in
which Mikelson, while riding his motorcycle, was struck by an
automobile. Mikelson was a named insured with his father under a
USAA automobile policy. Mikelson suffered bodily injury and sued
USAA under the underinsured motorist benefits of the policy. The
extensive background facts of the case are set forth in Mikelson
v. United Services Automobi1e Ass'n, 107 Hawafi 192, 111 P.3d
601 (2005) (Mikelson I), and Mikelson v. United Services
Automobile Ass'n, 108 Hawafi 358, 120 P.3d 257 (2005) (Mike1son
II). In Mikelson I, the Hawafi Supreme Court held that Mikelson
was a covered person under an insurance policy issued by USAA.
107 HawaiYi at 201-206, 111 P.3d at 6l0~615. In Mikelson II, the
Hawafi Supreme Court denied Mikelson's request for attorney's
fees for the appeal because the issue of whether Mikelson was
entitled to benefits under the insurance policy had yet to be
determined by arbitration. 108 Hawafi at 361, 120 P.3d at 260.
On October 4, 2006, the Arbitrator's Final Award
(Arbitration Award) was issued. The Arbitration Award, inter
alia, awarded Mikelson $110,236.33 after application of a covered
loss deductible. On October 17, 2006, Mikelson filed the Motion
to Confirm, asking the circuit court, pursuant to Hawaii Revised
Statutes (HRS) § 658A-22 (Supp. 2009), to confirm the Arbitration
Award. Although Mikelson did not state in his Motion to Confirm
whether the Arbitration Award had been satisfied, three days
later he filed a "Motion for Order that [USAA] 'Pay Benefits' to
[Mikelson]," to which he attached a copy of a check from USAA
dated October 6, 2006 for the full amount of the award.
Gn October 31, 200 , USAA filed an opposition
memorandum to Mikelson's Motion to Confirm. Citing to Wong v.
Board of Regents, Universitv of Hawaii, 62 Haw. 391, 616 P.2d 201
(1980), and Lathrop v. Sakatani, 111 Hawafi 307, 141 P.3d 480
(2006), USAA argued that the circuit court lacked jurisdiction to
hear the motion because the court does not have jurisdiction to
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hear moot issues, an issue is moot when there is no controversy,
and no controversy existed in this case because the award was
satisfied prior to confirmation of the award. USAA did not
oppose the Motion to Confirm based on any grounds stated in HRS
§§ 658A~20 (Supp. 2009), 658A-23 (Supp. 2009), or 658A-24 (Supp.
2009).
The circuit court granted the Motion to Confirm on
December 7, 2006, and USAA timely appealed.
II.
lt is well established that [the Hawafi Supreme
Court] has "confined judicial review of arbitration
awards to the strictest possible limits." Mars
Constructors, Inc. v. Tropical Enters., 51 Haw. 332,
335, 460 P.2d 317, 319 (1969). This is because "of
the legislative policy encouraging arbitration and
thereby discouraging litigation." Gadd v. Kelley, 66
HaW. 43l, 44l, 667 P.2d 25l, 258 (l983) (Citing Mar5
Constructors, 51 Haw. at 336, 460 P.2d at 319). See
also Mathewson v. Aloha Airlines, Inc., 82 HawaFi 57,
69, 919 P.2d 969, 981 (1996). Thus, "review of
arbitration awards by the circuit and appellate courts
is limited by the provisions of the arbitration
statute." Mars Constructors, 51 Haw. at [336], 460
P.2d at 319. See Kalawaia v. AIG HawaiH Ins. Co., 90
Hawafi l67, l73, 977 P.2d 175, 181 (l999); [Bd. of
D1rectors of AOAO of Tropicana Manor v. Jeffers, 73
HaW. 20l, 205-07, 830 P.2d 503, 506-07 (l992)].
Gepaya v. State Farm Mut. Auto. Ins. Co., 94 Hawafi 362,
365, 14 P.3d 1043, 1046 (2000) (internal brackets and
ellipsis omitted). Further, "we review the circuit court's
ruling on an arbitration award de novo, but we also are
mindful that the circuit court's review of arbitral awards
must be extremely narrow and exceedingly deferential."
Tacib@uer; v. Eiisw@rth, 99 Hawai‘i 226, 233, 54 P.zd 397,
404 (2002) (internal brackets, quotation marks, and
citations omitted).
United Pub. Workers, AFSCME, Local 646, AFL-CIO, v. Dawson Int'l,
;_gg_., 113 Hawai‘i 127, 137-33, 149 P.:zd 495, 505~06 (2006)
(brackets in original omitted).
III.
A. THIS COURT HAS APPELLATE JURISDICTION OVER THIS
APPEAL.
Mikelson's claim that this court lacks appellate
jurisdiction to hear this case is without merit. An appeal may
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be taken from an "order confirming or denying confirmation of an
award." HRS § 658A-28(a)(1) (Supp. 2009). USAA appeals from the
Order, and, therefore, this court has jurisdiction to hear this
appeal.
B. THE CIRCUIT COURT DID NOT ERR BY CONFIRMING THE
ARBITRATION AWARD.
USAA contends the circuit court lacked jurisdiction
over Mikelson's Motion to Confirm because the issue was moot.
USAA states that "[t]here was no reason to confirm an award that
had already been paid." USAA argues that a controversy or 0
dispute must exist in order to confirm an arbitration award and
since there was no controversy, the circuit court lacked
jurisdiction because courts do not decide moot cases.
"It is well-established that courts will not consume
time deciding abstract propositions of law or moot cases, and
have no jurisdiction to do so." Lingle v. HawaFi Gov't
Emplovees Ass'n, AFSCME, Local 152, AFL~C10, 107 Hawafi 178,
187, 111 P.3d 587, 596 (2005) (internal quotation marks,
citation, and brackets omitted).
Confirmation of an arbitration award is an "expeditious
procedure for reducing or converting the arbitration award to a
judgment which can be enforced by judicial writ." Krystoff v.
xaiama rand co., 38 Hawai‘i 209, 214, 965 P.zd 142, 147 (App.
1998) (quoting State of Md. Cent. Collection Unit v. Gettes, 584
A.2d 689, 696 (Md. l99l)).2
"HRS chapter 658A is based on the Uniform Arbitration
Act (2000) (RUAA), which was approved by the Nationa1 Conference
of Commissioners on Uniform State Laws (NCCUSL) in 2000[.]"
United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Citv & Countv
The statutory provision at issue in Krystoff was HRS § 658-8 (1993)
(confirming an arbitration award). Krystoff, 88 Hawafi at 210, 965 P.2d at
143. In 2001, HRS § 658-8 was repealed, 2001 Haw. Sess. Laws Act 265, § 5 at
820, and replaced by HRS § 658A~22 (confirmation of arbitration award), 2001
Haw. Sess. Laws Act 265, § 1 at 817. Both statutes state that after a party
receives notice of an arbitration award, the party may move a court for an
order confirming the award.
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of Hono1u1u (UPW), 119 HaWa1d.201, 210, 194 P.3d 1163, 1172
, _ert. re;;'@<:ted, 2009 wi. 766213 (Hawai‘i Feb. 13,
2009). Hawari has codified the RUAA as HRS Chapter 658A. UPW,
119 HaWaf1 at 202, 194 P.3d at 1164.
HRS § 658A~22 provides:
§658A~22 Confirmation of award, After a party to an
arbitration proceeding receives notice of an award, the
party may make a motion to the court for an order confirming
the award at which time the court shall issue a confirming
order unless the award is modified or corrected pursuant to
section 658A-20 or 658A~24 or is vacated pursuant to section
658]5»-23.
Section 22 of the RUAA provides:
SECTION 22. CONFIRMATION OF AWARD. After a party to
an arbitration proceeding receives notice of an award, the
party may make a [motion] [sic] to the court for an order
confirming the award at which time the court shall issue a
confirming order unless the award is modified or corrected
pursuant to Section 20 or 24 or is vacated pursuant to
Section 23.
The comments to Section 22 of the RUAA provide:
1. The language in Section 22 has been changed to
be similar to that in [Federal Arbitration Act] Section 9 to
indicate that a court has jurisdiction at the time a party
files a motion to confirm an award unless the award has been
changed under Section 20 or vacated, modified or corrected
under Section 23 or 24. Although a losing party to an
arbitration has 90 days after the arbitrator gives notice of
the award to file a motion to vacate under Section 23(b) or
to file a motion to modify or correct under Section 24(a), a
court need not wait 90 days before taking jurisdiction if
the winning party files a motion to confirm under Section
22. otherwise the losing party would have this period of 90
days in which possibly to dissipate or otherwise dispose of
assets necessary to satisfy an arbitration award. If the
winning party files a motion to confirm prior to 90 days
after the arbitrator gives notice of the award, the losing
party can either (1) file a motion to vacate or modify at
that time or (2) file a motion to vacate or modify within
the 90~day statutory period.
2. The Drafting Committee considered but rejected
the language in [Federal Arbitration Act] Section 9 that
limits a motion to confirm an award to a one-year period of
time. The consensus of the Drafting Committee was that the
general statute of limitations in a State for the filing and
execution on a judgment should apply.
Because the language of HRS § 658A-22 is virtually
identical to the language of the federal arbitration statute, we
may look to federal authority for guidance in the interpretation
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of HRS § 658A~22. Bateman Constr., Inc. v. Haitsuka Bros., Ltd.,
77 Hawari 48l, 485, 889 P.2d 58, 62 (l995).
ln Ottlev v. Schwartzberg, 819 F.2d 373 (2d Cir. 1987),
the United States Court of Appeals for the Second Circuit (Second
Circuit) set forth the following facts of the case. After an
arbitration award had been issued, Ottley filed a petition in the
United States District Court for the Southern District of New
York to confirm the arbitration award. 819 F.2d at 374~75.
Respondents argued that "while they 'did not wish to oppose
confirmation,' the petition to confirm was inappropriate inasmuch
as the alleged default had been cured." ;Q¢ at 375 (Brackets
omitted). The district court denied confirmation of the award
and remanded the matter to the arbitrator to determine whether
Respondents were in compliance with the award. 1d; at 375.
ottley appealed the district court's decision. ;d; The Second
Circuit held that "[a]bsent a statutory basis for modification or
vacatur, the district court's task was to confirm the
arbitrator's final award as mandated by section 9 of the [Federal
Arbitration] Act." Ottley, 819 F.2d at 376. The Second Circuit
also held that it was improper to remand the matter to the
arbitrator for a determination of the parties' compliance because
such compliance was not within the scope of matters initially
presented to the arbitrator. ld; The Second Circuit reversed
and remanded the case to the district court with instructions to
grant the petition to confirm the award. 1Q; at 377.
1n District Council No. 9 v. APC Paintinq, Inc., 272 F.
Supp. 2d 229 (S.D.N.Y. 2003), the defendants opposed the
confirmation of several arbitration awards against them on the
grounds, inter alia, that the awards had been satisfied. ;d; at
239. The court stated:
But whether these awards have been satisfied -- a fact
disputed by plaintiff -~ has no bearing on whether the
arbitration awards should be confirmed. See Hote1 Emp1oyees
& Rest. Emp1oyees, Dist. 1115 v. $idjay of New Jersey, 1993
WL 645982 at *4 n.3 (D.N.J. Aug 25, 1993) (confirming an
arbitration award with the expectation that the employers
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would be credited for any amount already paid). Indeed, as
the defendants themselves have pointed out subsequent to the
briefing, a court may confirm an arbitration award against a
party even when the party has complied with that award. See
Ottley v. Schwartzberg, 819 F.2d 373, 376-77 (2d Cir. 1987);
see also Am. Nursing Home v. Loca1 144 [Hotel, Hospita1,
Nursing Home & A11ied Services Un1on, SEIU, AFL-CIO], 1992
WL 47553 at *2 (S.D.N.Y, Mar 4, 1992) ("Th€ issues of
compliance and confirmation are distinct from each other. A
court may confirm an arbitration award even in the absence
of a showing of non-compliance ") (citation omitted).
_I.O_L
In Collins v. D.R. Horton, 1nc., 361 F. Supp. 2d 1085
(D. Ariz. 2005), a final arbitration award was issued in favor of
plaintiffs on their breach~of-contract claims related to wages,
but not on their contract and fraud claims arising out of the
defendant‘s alleged promise to give plaintiffs 30,000 shares of
stock. 1d; at 1090. Plaintiffs then filed a motion to confirm
the part of the award in their favor and vacate the part of the
award not in their favor. ;d; Defendant argued that plaintiffs'
"request for confirmation is spurious because [p]laintiffs have
already been paid the arbitration award, with the exception of
the amounts at issue in the parties['] dispute over interest."
1d. at 1093. The court stated:
This argument is unavailing. Regardless of whether the
undisputed amounts have already been paid, Plaintiffs are
still entitled to an order confirming those amounts. 9
U.S.C. § 9 is phrased in mandatory terms. lt provides that,
upon application, a district court "must grant [a
confirmation] order" unless the arbitration award is
modified, vacated, or corrected. 9 U.S.C. § 9 (emphasis
added). The mere fact that Horton has satisfied a portion
of its obligation under the arbitration award does not
divest the court of authority to confirm that portion of the
award -» satisfaction and confirmation are separate issues.
See District Council No. 9 v. AFC Painting, Inc., 272 F.
Supp. 2d 229, 239 (S D N.Y. 2003) (holding that the fact
that the defendant had satisfied the arbitration awards at
issue was irrelevant to whether the court should confirm the
awards under 9 U.S.C. § 9.)
More recently in Zeiler v. Deitsch, 500 F.3d 157 (2d
Cir. 2007), the Second Circuit, citing to District Council No. 9
and Collins, affirmed that satisfaction of an award is not a
basis to deny confirmation. 500 F.3d at 169.
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The above cases support confirmation of an arbitration
award despite compliance or satisfaction because (1) the plain
language of the applicable statute mandates confirmation of the
award unless it is modified, corrected, or vacated and (2)
confirmation is concerned with the propriety of the award itself
and is unrelated to enforcement of the award.
However, other jurisdictions do not distinguish between
confirmation and enforcement of an arbitration award and, thus,
would not confirm an award that has been satisfied, In Derwin v.
General Dvnamics Corp., 719 F.2d 484 (1st Cir. 1983), the United
States Court of Appeals for the First Circuit (First Circuit)
criticized the bifurcated approach that distinguished between a
proceeding to confirm an arbitration award and one to enforce it.
1d. at 490-93. In Derwin, a labor union and General Dynamics
Corp. abided by a 1979 unconfirmed arbitration award. 1d. at
486. 1n 1982, the union brought suit in Massachusetts Superior
Court to confirm the award after a disagreement between the
parties arose. Ld; General Dynamics removed the state court
action to the United States District Court for the District of
Massachusetts. ld; The district court held that the labor union
was time barred from confirming the award under 9 U.S.C. § 9.
;dg The union appealed. ;d; at 485. The First Circuit held
that the labor union's action was not time barred because
Massachusetts General Law Chapter 150C, § 10 was the proper
statute of limitation and that statute imposed no time limit for
filing suit to confirm an award. lQ; at 489-90.
Despite finding that the district court's reason to
deny confirmation of the award was error, the First Circuit
affirmed the denial of confirmation of the award on the ground
that confirmation was unwarranted. ;d; at 490. The First
Circuit noted that the labor union did not seek a resolution of a
concrete dispute between the parties, did not allege that General
Dynamics repudiated or violated the 1979 award, and did not
request specific enforcement of the 1979 award. 1d. The First
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Circuit stated that it was "simply being asked to put its
imprimatur upon an arbitral award in a vacuum." Id. at 491. The
court explained:
But while this is a possible procedure, we question
the need for or wisdom of this bifurcated approach. lt
seems to us cumbersome, unnecessary, and potentially
misleading -- especially as an order of confirmation issued
in a factual vacuum may result in unpredictable pressure and
aspersions upon the party against whom the order runs.
Entry of a declaration "confirming" the award may be taken
to imply that the defendant is in fact violating it.
Courts, after all, do not enjoin parties from violating the
law without proof of a real likelihood that such will
happen. At very least, it is hard to fathom what the
present debate over confirmation portends. Both parties
profess to agree that the Stutz award is binding. A decree
confirming it at this time will merely give the parties
something more to argue about. Under the circumstances,
Article 1II's prudential values and concerns of judicial
economy strongly counsel against the entry of a confirmatory
order,
gag at 491-92.
In Local 2414 of United Mine workers of America v.
Consolidated Coal Co., 682 F. Supp. 399 (S.D. 1ll. 1988), the
court was faced with the same issue: whether to confirm an
arbitration award where there was "no showing there exists any
controversy regarding the validity of or [defendant‘s] compliance
with the awards." 1d. at 399. The court stated:
Here, however, neither party has contended that the
awards were invalid or that they have not been complied
with. Likewise, neither party has alleged that the
arbitrators exceeded their powers. The sole issue raised
seems to be that since there is no controversy concerning
the awards' validity or the defendant's compliance with
them, it is improper to confirm the awards pursuant to 9
U.S.C. § 9. Thus, the sole issue to be decided by the Court
is whether, under these circumstances, the plaintiff is
entitled to confirmation.
. . . Analysis of the cases that are reported suggests
that, as used in the statute, the term "confirm" is
synonymous with the term "enforce " See e.g. [Comprehensive
A;;cuntinq Corp. v. Rude11, 760 F.2d 138 (7th Cir. 1985)]
(where the term "enforce" is parenthetically inserted next
to the term "confirm“). This construction of “confirm"
becomes significant where a court is asked to "confirm" an
award over which there is no dispute.
The Arbitration Act, 9 U.S.C. § 1 et seq,, was enacted
to establish arbitration as a desirable alternative to the
complications of litigation. Wi1ko v. Swan, 346 U.S. 427,
431, 74 s. ct. 1s2, 184, 98 L. Ed. 163 (1953>. in an effort
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to limit the scope of review of arbitration awards by
federal courts, thus insuring their finality and
conclusiveness, Congress has significantly limited the
grounds upon which these awards may be set aside or
corrected by the courts. See 9 U.S.C. §§ 10, 1l. Thus, it
is apparent that Congress did not intend for district courts
to make unwarranted judicial intrusions into the arbitration
process. lt would seem that only when there is a bona fide
dispute over the award, limited to the statutory bases, may
a district court review an otherwise valid award.
To confirm (enforce) an award in light of this
analysis, it follows a fortiori that there must first be an
underlying dispute regarding its validity or application.
That is to say it is manifest that there must be some type
of controversy necessitating judicial enforcement of an
award in order to justify its confirmation by court order.
In cases such as the instant one where there is no new
dispute, ". . . the court is simply being asked to put its
imprimatur upon an arbitral award in a vacuum." [Derwin,
719 F'.2d [at] 491].
The Derwin case, with regard to the controversy issue,
is factually identical to the one at bar. There, as here,
the union did not allege that the company had repudiated or
violated the award, nor was relief for specific enforcement
prayed for.
;d; at 399-400 (record reference omitted).
1n Derwin and Local 2414, confirmation of the
arbitration award was equated to a mechanism to enforce an
arbitration award. Without the need to enforce an award, the
courts in Derwin and Local 2414 would determine that confirming
the award would be moot. Those cases reject the plain language
statutory construction argument as well as separation between
confirmation and enforcement proceedings recognized in Ottley,
District Council No. 9, and Collins,
USAA also cites to Kenneth W. Brooks Trust A. v.
Pacific Medial L L.C., 44 P.3d 938 (Wash. Ct. App. 2002), and
Stewart Title Guarantv Co. v. Tilden, 64 P.3d 739 (Wyo. 2003), in
support of its argument that an arbitration award that has been
satisfied should not be confirmed because the award rendered any
need for confirmation moot. 1n Brooks Trust and Tilden, both
courts acknowledge statutory language which mandates that the
court confirm an arbitration award that has not been modified,
corrected, or vacated. Brooks Trust, 44 P.3d at 941; Tilden, 64
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P.3d at 741. However, both courts held that the respective
arbitration awards should not be confirmed because the awards had
been satisfied -- thereby rendering moot any controversy. Brooks
Trust, 44 P.3d at 942; Tilden, 64 P.3d at 742.
We find the plain language statutory construction and
the reasoning behind separating confirmation and enforcement
proceedings persuasive for several reasons. 1n QQN, this court
recognized that a motion to confirm an award is distinct from a
motion to enforce a judgment confirming an arbitration award.
119 HawaiFi at 208-09, 194 P.3d at 1170-7l. 1n QQW, a labor
union sought attorney‘s fees for prevailing on a motion to
enforce an uncontested judgment confirming an arbitration award.
1d; at 202, 194 P.3d at 1164. This court stated that HRS § 658A-
22 relates to confirmation of an arbitration award and that under
HRS § 658A-25, a party may recover attorney‘s fees for prevailing
in a contested judicial proceeding to confirm, vacate, modify, or
correct an arbitration award. Q§W, 119 HawaiU.at 208-09, 194
P,3d at 1170-71. This court rejected the argument that
attorney‘s fees related to a motion to enforce a judgment were
justified for non-compliance with an arbitration award under HRS
§ 658A-25 (Supp. 2009). QQW, 119 HaWafi at 211-l2, 194 P.3d at
1173-74. §QW indicates that this jurisdiction has adopted the
bifurcated approach in Ottley and has rejected the rationale of
Derwin and Local 2414 that equates a confirmation action with
enforcement proceedings.
We also do not conclude that the existing controversy
rationale in Derwin and Local 2414 provides a basis to overcome
the plain language statutory interpretation of HRS § 658A-22.
The plain language of HRS § 658A-22 requires the circuit court to
confirm an award unless the award has been vacated, modified, or
corrected. There is no language in HRS § 658A-22 requiring a
party to object to confirmation of an arbitration award. In
fact, the RUAA contemplates that an uncontested motion to confirm
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an arbitration award will be granted. As noted in UPW, the
Comments to RUAA § 25(c) provide:
(4) The right to recover post-award litigation
expenses does not apply if a party's resistence to the award
is entirely passive but only where there is "a contested
judicial proceeding." The situation of an uncontested
judicial proceeding, e.g., to confirm an arbitration award,
will most often occur when a party simply cannot pay an
amount awarded. If a party lacks the ability to comply with
the award and does not resist a motion to confirm the award,
the subsection does not impose further liability for the
prevailing party's fees and expenses. These expenditures
should be nominal in a situation in which a motion to
confirm is made but not opposed.
QQW, 119 Hawaiii at 2ll, 194 P.3d at ll73.
Because "HRS § 658A-25 is almost identical to section
25 et the RUAA," ;J_E_w, 119 Hawai‘i at 210, 194 93d at 1172, the
Comments to RUAA § 25 are also useful in interpreting HRS § 658A-
25, The Comments to RUAA § 25 clearly demonstrate that
opposition to confirmation of an arbitration award is not
required before the court can confirm the award. The RUAA is not
concerned with compliance in a proceeding to confirm the award.
1n addition, when Mikelson and USAA entered into an
agreement to arbitrate they became subject to the provisions of
HRS § 658A-4 (Supp. 2009). HRS § 658A-4(c) provides: "A party
to an agreement to arbitrate or arbitration proceeding shall not
waive, or the parties shall not vary the effect of, the
1requirements of this section or section 658A-3(a) or (c), 658A-7,
658A-l4, 658A-l8, 658A-20(d> or (e), 658A-22, 658A-23, 658A-24,
658A-25(a) or (b), or 658A-29." USAA seeks to vary the effect of
HRS § 658A-22 by avoiding confirmation of the arbitration
altogether. Such an action is prohibited by HRS § 658A-4(c).
We also find the cases cited by USAA distinguishable,
and therefore, inapplicable. The statute at issue in Brooks
Trust stated that "[w]ithin one year after an award in
arbitration, 'any party to the arbitration may apply to the court
for an order confirming the award, and the court shall grant such
an order unless the award is beyond the jurisdiction of the
court, or is vacated, modified, or corrected, as provided in RCW
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[WaSh. ReV. Code] 7.04 160 and 7.04.170.' RCW 7.04.150." BrookS
Erus§, 44 P.3d at 941 (footnote omitted). However, RCW 7.04.150
was not based upon the RUAA. The RUAA was adopted by the
Washington Legislature in 2005. 2005 Wash. Sess. Laws Chapter
433. The same law that enacted the RUAA in Washington also
repealed RCW 7.04.150. 2005 Wash. Sess. Laws Chapter 433, § 50.
1n Tilden, the court discussed Wyo. Stat. Ann. § 1-36-
113, which provides: "Upon application of a party the court
shall confirm the award unless within the time limits allowed
grounds are urged for vacating or modifying the award." Tilden,
64 P.3d at 741 (brackets omitted). However, Wyo. Stat. Ann. § 1-
36-113 was first enacted in 1959, 1959 Wyo. Sess. Laws Ch. 116
§ 11, and last modified in 1977, 1977 Wyo. Sess. Laws Ch. 188
§ 1. Thus, it was also not based upon the RUAA§
Even when this court looks to HRS 658-8,3 the prior
statute dealing with confirmation of an arbitration award, USAA's
contention is not supported by the law. In Board of Directors of
Ass'n of Apartment Owners of Tropicana Manor v. Jeffers, 73 Haw.
201, 830 P.2d 503 (1992), the Hawafi Supreme Court stated that
"HRS § 658-8 contemplates a judicial confirmation of the award
issued by the arbitrator, 'unless the award is vacated, modified,
or corrected' in accord with HRS §§ 658-9 and 658-10." Tropicana
Prior to its repeal in 2001, HRS § 658-8 provided:
§658-8 Award: confirming award. The award shall be in
writing and acknowledged or proved in like manner as a deed for
the conveyance of real estate, and delivered to one of the parties
or the party's attorney. A copy of the award shall be served by
the arbitrators on each of the other parties to the arbitration,
personally or by registered or certified mail. At any time within
one year after the award is made and served, any party to the
arbitration may apply to the circuit court specified in the
agreement, or if none is specified, to the circuit court of the
judicial circuit in which the arbitration was had, for an order
confirming the award. Thereupon the court shall grant such an
order, unless the award is vacated, modified, or corrected, as
prescribed in sections 658-9 and 658-10. The record shall be
filed with the motion as provided by section 658-13, and notice of
the motion shall be served upon the adverse party, or the adverse
party's attorney, as prescribed for service of notice of a motion
in an action in the same court.
13
F()R PUISLICATI()N IN WEST‘S HAWAI‘I REPORTS AND PACIFIC REPORTER
ManQ;, 73 Haw. at 207, 830 P.2d at 507. The court went on to
hold that "no award can be considered final, despite the
intentions of the parties, until court confirmation of the award
has been obtained." 1d; at 209, 830 P.3d at 508.
1n Kalawaia v. AIG Hawafi 1nsurance Co., 90 HawaFi
167, 172-75, 977 P.2d 175, 180-83 (1999), one of the issues was
whether the circuit court could award interest after an
arbitration award had been issued. 1n holding that a circuit
court may award such interest, the HawaFi Supreme Court stated:
Nevertheless, the circuit court has the authority to
award interest commencing on the date of the arbitration
award or later. once the arbitration award is issued,
confirmation of the award could be delayed by the adverse
party. Delay in the confirmation of the judgment would be
redressable through the award of interest. This will not
increase the amount awarded by the arbitrators during the
arbitration portion of the proceedings. As noted, however,
it may be necessary to correct injustice caused by delay in
the confirmation of the award. The award is not final and
executable until confirmed by the circuit court, See
Tropjcana Manor, 73 Haw. at 206, 830 P.2d at 508 (stating
that "no award can be considered final, despite the
intentions of the parties, until court confirmation of the
award has been obtained.").
ld; at 174, 977 P.2d at 182 (emphasis added).
Under HRS § 658-8, it appears that confirmation of the
arbitration award was required to provide a final and executable
award. 1f HRS § 658-8 were applicable, Mike1son would still be
entitled to confirmation of the award because the arbitration
award was not final.
USAA‘s sole argument below and on appeal was that the
confirmation would be moot. Because the confirmation would not
have been moot and USAA failed to challenge confirmation of the
award based upon the statutory grounds in HRS §§ 658A-20, -23,
and -24, the circuit court was obligated to confirm the award.
HRS § 658A-22. The circuit court did not err by confirming the
arbitration award.
IV.
The "order Granting Plaintiff Mathew S. Mikelson's
Motion for order Confirming Arbitration Award" filed on
14
190 R Plllll,.lCA.'l`l()N IN WEST'S HAWAI‘I REPOR'I`S AN]) PACIFlC REPORTER
December 7, 2006 in the Circuit Court of the First Circuit is
affirmed.
on the briefs:
Terrance M. Revere
(Motooka Yamamoto & Revere) ,/ , ;J' Zz; §
for Defendant-Appellant. / -
Alan van Etten '
Tred R. Eyerly . » y§>.
(Damon Key Leong Kupchak 4
'
for Plaintiff-Appellee.
15