Buttie v. Norfolk & Dedham Mutual Fire Insurance Co.

*553FLAHERTY, J.,

concurring in part and dissenting in part.

I concur in the majority’s holding with respect to the issuance of the writ of cer-tiorari. However, I most respectfully, but nonetheless vigorously, dissent from the majority opinion that the arbitrator’s decision should be vacated. As the majority correctly has set forth, our review of an arbitrator’s decision is extremely limited; it is certainly among the most stringent standards of review employed by judicial bodies. The majority aptly has said, “the authority of the Courts ‘to review an arbi-tral award is statutorily prescribed and is limited in nature.’ North Providence School Committee v. North Providence Federation of Teachers, Local 920, American Federation of Teachers, 945 A.2d 389, 844 (R.I.2008).” Therefore, we will not vacate an arbitrator’s award “[ajbsent a manifest disregard of a contractual provision or a completely irrational result.” City of East Providence v. United Steelworkers of America, Local 15509, 925 A.2d 246, 252 (R.I.2007) (quoting State Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, 867 A.2d 823, 828 (R.I.2005)).

I have examined the arbitrator’s award and note that this very well respected and experienced arbitrator was faced with a complex and difficult situation in which the damages of the injured parties exceeded the available coverage limits of all the applicable policies, with the added complication that one of the policies covered only two, but not all three, of the occupants of the Buttie vehicle. In his effort to work his way to a just award, the arbitrator was confronted with “uninsured motorist” and “other insurance” provisions in the policies that differed from each other. He also evaluated and construed this Court’s decisions in Hindson v. Allstate Insurance Co., 694 A.2d 682 (R.I.1997); Brown v. Travelers Insurance Co., 610 A.2d 127 (R.I.1992), and Ferreira v. Mello, 811 A.2d 1175 (R.I.2002). In the end, the arbitrator issued an award that he believed to be fair, in keeping with the applicable language in the two policies involved, and consistent with this Court’s prior holdings. In my opinion, under no circumstances can the arbitrator’s award be considered “completely irrational.”

The majority also faults the arbitrator for rewriting Buttie’s policy with Norfolk. I agree with the majority that although the arbitrator “had the power and the authority to interpret the contract, giving due regard to each provision,” he “did not have the power and authority to rewrite it.” Town of Coventry v. Turco, 574 A.2d 143, 147 (R.I.1990). However, without saying how the policy was “rewritten,” the majority merely states that his doing so is further evidence of irrationality. The majority opinion states, “no provision [of the Norfolk policy] expressly dictates that the Cataldos should have been given priority over the owner of the policy.” However, in my opinion, the arbitrator did not rewrite the contract language, but rather did the best he could to walk a judicial high-wire and construe the typically dense language of two competing insurance policies. See Town of Coventry, 574 A.2d at 148-49, 149 (Kelleher, J., dissenting) (remarking that there was “no specific directive in the agreement concerning the particular issue at bar” and, therefore, “that which is not written cannot be rewritten”).

When setting forth the standard of review in this case, the majority properly cites the case of Council 91, American Federation of State, County, and Municipal Employees AFL-CIO v. State, 475 A.2d 200, 203 (R.I.1984), for the proposition that “judicial reversal of an arbitrator’s award solely on the ground of a reviewing court’s disagreement with [the *554arbitrator’s] construction of the contract is prohibited.” But, with enormous respect for my learned and conscientious colleagues in the majority, I believe that this is precisely what they have done. The majority opines, “We find that the arbitrator’s conclusion in this regard leads to a plainly unjust result.” It then substitutes the arbitrator’s award with an award of its own, which it deems to be more fair. The difficulty with this approach, of course, is that fairness, or lack of it, is not the standard of review to be applied in this case.

Arbitration is a contractual process in which the parties agree to remove themselves from judicial determination and instead present their cases to an impartial finder of fact and law of their own choosing. See North Providence School Committee, 945 A.2d at 347 (“We review arbitral awards under an exceptionally deferential standard as a means of ensuring that parties may benefit from arbitration as a relatively informal and expedient alternative to litigation in the court system.”). The awards that flow from this process cannot be reversed for errors of fact or law and should only be disturbed in the narrowest of circumstances. Aponik v. Lauricella, 844 A.2d 698, 703 (R.I.2004) (“[T]he role of the judiciary in the arbitration process is ‘extremely limited.’ ”) (quoting Purvis Systems, Inc. v. American Systems Corp., 788 A.2d 1112, 1114 (R.I.2002)); Romano v. Allstate Insurance Co., 458 A.2d 339, 341-42 (R.I.1983) (“arbitrators are free to determine the facts before them without having their award become subject to judicial revision”); Jacinto v. Egan, 120 R.I. 907, 911, 391 A.2d 1173, 1175 (1978) (“The fact that the arbitrator misconstrued the contract or the law is no ground for striking down his award.”). We may or may not agree about how the arbitrator, who, after all, was selected by the parties, performed his duties in this case. But, in my view, his decision should not be vacated because there simply is no justification to do so under G.L. 1956 § 10-3-12; the award is not irrational nor is it occasioned by a manifest disregard of the law on behalf of the arbitrator. See Pier House Inn, Inc. v. 421 Corp., 812 A.2d 799, 802 (R.I.2002). Therefore, I most respectfully dissent from the majority’s holding, and I would affirm the judgment of the Superior Court.