Olga Esparra Sobota v. LLC (2012)

MEMORANDUM OF DECISION ON PLAINTIFF'S APPLICATION TO VACATE AN ARBITRATION AWARD AND DEFENDANT'S APPLICATION TO CONFIRM SAID AWARD

FACTS:

On December 28, 2007, the plaintiff (hereinafter “Sobota”) was going to work walking from her parked vehicle to the entrance of 309 Wawarme Avenue, Hartford, when she claims she fell on ice near the entrance.   Said property was owned by the defendant, (hereinafter also “GDP”).  The plaintiff alleges that she slipped and fell as the result of icy and unsafe conditions of the parking area and initially brought suit against the defendant for this slip and fall.   The parties voluntarily referred the matter to Arbitration to be implemented by Litigation Alternatives, Inc. The plaintiff signed said agreement on October 3, 2011 and the defendant on October 11, 2011, a copy of which is attached as Schedule A. Also attached as Schedule B are “Litigation Alternatives, Inc., Procedural Rules.”   After a hearing held by Arbitrator Thomas P. Barrett, Esq., (hereinafter also the “Arbitrator”), said arbitrator rendered a decision dated December 11, 2011, in which he found the issue of liability in favor of the defendant.   Said decision is attached hereto as Schedule C.

The Award stated in pertinent part:  “But standing alone, this evidence is insufficient to impose liability on the defendant.   The foot sized patch of ice on which the plaintiff slipped could have been formed within 5 minutes of the fall.   I am constrained by the law to find the issue of liability in favor of the defendant.”   This was followed by the plaintiff's application to vacate the Award and the defendant's application to confirm the Award.   A hearing was held before this Court on December 15, 2012.

STANDARD OF REVIEW:

In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the Award to determine whether the Award conforms to the submission.  Alderman & Alderman v. Pollack, 100 Conn.App. 80, 89 (2007).

The second issue to be determined is whether the submission to the arbitrator was restricted or unrestricted.  “In determining whether a submission is unrestricted, we look at the authority of the arbitrator.  ‘The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the Award on court review.   In the absence of any such qualifications, an agreement is unrestricted ․ in the present case, the agreement does not limit or condition the arbitrators' authority in a manner that would make this a restricted submission.   Thus, we conclude that the submission is unrestricted and our review, therefore, is limited.”   Alderman & Alderman v. Pollack, supra, id. 85.

“․ Where the submission is unrestricted, the arbitrator is empowered to decide factual and legal questions.   The submission tells the arbitrator what he or she is obligated to decide.   See Harty v. Cantor Fitzgerald, 275 Conn. 72, 80 (2005).  “Judicial review of arbitral decisions is narrowly confirmed ․ When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the Award is delineated by the scope of the parties' agreement ․ When the scope of the submission is unrestricted, the resulting Award is not subject to de novo review even for errors of law so long as the Award conforms to the submission ․ Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution ․”

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an Award cannot be vacated on the grounds that ․ the interpretation of the agreement by the arbitrators was erroneous.   Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved ․ In other words, [u]nder an unrestricted submission, the arbitrators' decision is considered final and binding;  thus the courts will not review the evidence considered by the arbitrators nor will they review the Award for errors of law or fact ․” (Emphasis added.)  Id. p. 80.

ISSUES AND FINDINGS:

1. Was the Submission Unrestricted?

The short answer is Yes.

The submission does not contain express language restricting the breadth of issues.   This submission does not limit or condition the Arbitrators' authority in a manner that would make this a restricted submission.

2. Did the Award Conform to Submission?

The short answer is Yes. The Arbitrator was empowered to decide under the submission which was unrestricted the issue of whether or not there was liability on the part of the defendant.   The arbitrator found that there was not.

3. Should the Application to Vacate be Denied and the Application to Confirm be Granted?

The short answer is Yes.

This Court has found it very difficult to vacate an award by an arbitrator or arbitrators because of the clear principle or standard that states that where the submission is unrestricted the Arbitrator is empowered to decide factual and legal questions.

As stated in the plaintiff's brief dated February 20, 2012:  “We are not asking the court to reconsider the merits of the decision.   We only point out that the Arbitrator's decision:  (1) violates public policy in that it makes findings of fact that are not supported by the evidence;  (2) evidences partiality or corruption on the part of the Arbitrator by his irrational findings of such facts;  (3) such findings evidence prejudice to the plaintiff and (4) show the Arbitrator has so imperfectly executed his duties that a mutual, final, definite award was not made.”   These claims will be addressed as follows:

(1) As to Paragraph 2 “evidences partiality or corruption on the part of the Arbitrator by his irrational findings of such facts,” the Court, at oral argument, asked plaintiff's attorney what was the partiality or corruption other than the fact that the Arbitrator found the evidence and law for the defendant.   His reply was that because larger law firms frequently submit issues to arbitration and pointed out that defendant's law firm had approximately fourteen (14) members and he, plaintiff's counsel, is a sole practitioner that arbitrators will favor parties that will give them more business.   The Court rejects this claim.   There is no evidence of partiality or corruption.

(2) As for Paragraph 1 that the decision “violates public policy in that it makes findings of fact that are not supported by the evidence,” the Court has reviewed the exhibits submitted by the plaintiff which, of course, were only some of the exhibits before the arbitrator, and based upon that and other arguments by the plaintiff, this Court finds that the facts are supported by the evidence.¹  The Court will not comment further other than to say that under the Standard of Review, the Arbitrator, in an unrestricted submission, is entitled to make findings of fact and law.   Here the Arbitrator has done exactly that.   He certainly questioned the timing of the notice of the alleged ice to the defendant and was not convinced of the time period in which the ice formed and was present.   This is a finding of fact that cannot be questioned.

(3) As for Paragraph 3 of plaintiff's claims “such findings evidence prejudice to the plaintiff,” of course the findings show prejudice to the plaintiff because the Arbitrator ruled in favor of the defendant.

(4) Finally as to Paragraph 4 of the plaintiff's claims that the decision “shows the Arbitrator has so imperfectly executed his duties that a mutual, final, definite award was not made” it is clear, that the Arbitrator reviewed the evidence and made decisions on the facts as he found them and as he interpreted them.   Again, in view of the case law that permits the Arbitrator to make decisions on facts and the law, the Court finds that this Arbitrator did not imperfectly execute his duties.

CONCLUSION:

For the foregoing reasons the Application To Vacate The Arbitration Award is denied and the Application To Confirm The Arbitration Award is granted.

Rittenband, J.

SCHEDULE A

BINDING ARBITRATION PROCEDURE AGREEMENT

WHEREAS, a claim (the “Claim”) has been made by Olga Sobota (the “Claimant”) against the insurance policy of G.D.P. Enterprises, LLC (the “Insured”);  and

WHEREAS, the Claimant and the Insured (the “Parties”) have agreed to resolve the Claim by means of a Binding Arbitration Implemented by Litigation Alternatives, Inc.;

THEREFORE, in consideration of the mutual promises and obligations contained herein and other good and valuable consideration, receipt of which is hereby acknowledged, the Parties each agree:

A.  That they are either the principal or an authorized representative signing in that capacity;  and

B. That they have received, read, and fully understand the document entitled “Litigation Alternatives, Inc. Procedural Rules;” and

C. That they agree to incorporate by reference herein and abide by the provisions contained in Sections I and III of the above mentioned procedural rules;  and

D. That they sign willingly and with the advice of their designated representative or attorney.

Accepted by the Claimant Olga Sobota

Date 10/3/11

Accepted for the insured G.D.P. Enterprises, LLC

Date 10/11/2011

Insurance Company:  One Beacon Insurance Company

Claim/Policy # :  OAA540257

LAI Case # :  11–09168–M

SCHEDULE B

Litigation Alternatives, Inc. Procedural Rules

Section I— The following rules apply to all hearings facilitated by Litigation Alternatives, Inc.

A. Definitions:

1 “Hearing” is the ADR (Alternative Dispute Resolution) procedure facilitated by Litigation Alternatives, Inc. lasting less than three hours with the participants charged a flat fee for the service.

2. “Hearing Officer” is the neutral third party mediator or arbitrator selected by the parties or assigned by Litigation Alternatives, Inc. to hear the submissions of the parties.

3. “Parties” are all persons or legal entities who, either in person or through their representatives, participate in said Hearing, and who are effected by its outcome.   A party has the absolute right to elect to participate in the hearing and be affected by ifs outcome.

4. “Jurisdiction” is the actual or proper jurisdiction for the civil action or potential civil action that is the subject of said Hearing.

5. “Summary” is the written memorandum submitted to the Hearing Officer by a party, the purpose of which is to familiarize the Hearing Officer with that party's view of:  1) pertinent facts of the claim;  2) liability;  3) coverage;  and 4) valuation.

6. The “Litigation Alternatives, Inc. Fee Schedule” is the document governing all fees charged by Litigation Alternatives, Inc. and is incorporated herein by reference.

7. “Settlement/Cancellation Fee” is the fee charge each party (in addition to any fees charged by the Hearing Officer) in lieu of a procedure fee when a scheduled hearing is canceled.   The amount of this fee is governed by the “Litigation Alternatives, Inc. Fee Schedule.”

8. “Settlement Authority” refers to a party's (or their authorized representative) ability to authorize payment of or receipt of funds or actions that will bring a dispute to a mutually agreed upon conclusion.

9. “High/Low Agreement” is a written side agreement between the parties that specifically defines the lowest and highest monetary awards that can be awarded or paid by them, notwithstanding a written monetary award by the Hearing Officer above or below the agreed upon parameters.   The existence and terms of the High/Low agreement shall not be disclosed to the Hearing Officer.

B. Rights and Duties of the Hearing Officer— The Hearing Officer:

1. Shall review all summaries provided by the parties prior to the hearing;

2. Shall review all supporting documentation provided by the parties with said summaries unless such documentation is not provided in a timely manner;

3. Shall conduct the hearing in the form (in person, by telephone or by written submission) agreed to by the parties;

4. Settlement authority and discuss confidentially with them his or her perception of the relative strengths and weaknesses of their position;

5. May recommend a settlement figure to the parties if he or she feels such recommendation will promote settlement of the dispute;

6. May withhold such recommendation if he or she believes the publication of such settlement figure would not promote settlement of the dispute;  and

7. May provide a written opinion if he or she believes that the receipt of said written opinion by the parties will promote settlement of the dispute.

Rights and duties of the Parties—The Parties:

1. Shall make a good faith effort to:

a) have full knowledge of the file;

b) be prepared for the hearing;  and

c) obtain, or have access to, settlement authority;

2. Shall negotiate in good faith;  and

3. Shall apprise the Hearing Officer of any limitations, other than their own opinion, on the settlement authority they possess at the time of the hearing.

Section III— The following rules apply to all BINDING ARBITRATIONS facilitated by Litigation Alternatives, Inc. and are incorporated by reference therein.

A. Rights and Duties of the Hearing Officer— The Hearing Officer:

1. Shall provide to Litigation Alternatives Inc., a written decision including a stated monetary award or judgment of no-cause, no later than 30 (thirty) days from the date of the hearing or final receipt of clarifying documentation from the parties;

2. May either:  a) postpone the hearing;  b) continue the hearing and schedule an additional hearing;  or c) request that the parties submit briefs upon motion of one of the parties, when he or she finds that evidence presented at the hearing:

i. has caused undue surprise for one or more parties to be bound by the decision;  and

ii. finds that such remedy will provide the aggrieved party/ies the opportunity to respond to or clarify the evidence.

B. Rights and Duties of the Parties— The Parties:

1. Agree to provide properly executed procedure agreements to the representatives of Litigation Alternatives, Inc. prior to any scheduled hearing;

2. Agree to provide the opposing party/ies, upon their request, such appropriately executed procedure and/or ground rule agreements prior to the commencement of the hearing;

3. Shall, prior to the scheduling of a hearing, disclose to all the parties and Litigation Alternatives if they are expecting to receive additional, disclosable, medical information, reports or other evidence that might materially change the perceived value of the claim;

4. Shall bear all costs associated with a postponement of the scheduled hearing resulting from their receipt of information as outlined in Paragraph IIIB(3) above;

5. Agree to abide by the written decision rendered, except as they, in good faith, believe there has been either gross misconduct or material miscalculation by the Hearing Officer that would be grounds for appeal under the arbitration statutes of the jurisdiction;

6. Where the parties have entered into a Binding Arbitration Agreement or a Binding Arbitration Agreement coupled with an agreement governing the parameters of their recovery and/or exposure, they;

a.  Agree not to disclose the parameters of said agreement/s to the Hearing Officer either in any written or oral submissions, either ex parte or during the hearing itself;

b. Agree not to disclose the Policy Limits of any insurance policy/ies that are the subject of such Binding Arbitration Agreement/s to the Hearing Officer either ex parte or during the hearing itself unless agreed to by all other parties to the hearing;

c. Agree not to disclose the details of prior settlement negotiations (i.e. prior offers and demands etc.) to the Hearing Officer either ex parte or during the hearing itself unless agreed to by all other parties to the hearing;

d. Understand that disclosure during the hearing as articulated above IIIB(6a-c) shall give the other party/ies to the hearing the absolute right to declare said hearing null and void;

e.  Understand that if there is a disclosure as articulated above in Paragraph IIIB(6a-c), that the declaration that the hearing be deemed null and void IIIB(6d) must be made immediately or forever waived by the aggrieved party/ies;

f. Agree to pay additional costs and fees for a second hearing before another Hearing Officer caused by such declaration as specified above IIIB(6d);

g. Agree that a second hearing before another Hearing Officer is the exclusive remedy when a hearing is declared null and void for disclosure of High/Low parameters.

7. Understand that the provisions of Paragraph IIIB(6), sections a through e, shall apply to any other ground rules the parties have agreed not to disclose to the Hearing Officer.

8. Understand that there can be no award in excess of the available coverage of the insurance policy of the participating insured/defendant;  and 2) that any award made against one party cannot be enforced against any other party not participating in the hearing unless previous agreement has been obtained from such third-party;  furthermore,

a.  Understand and agree to waive any interest award based upon an award of the arbitrator that is in excess of any Offer of Judgment duly filed with the Superior Court at any time prior to the entry of the award;  and

9. Agree that the written agreements of the parties and the decision of the Hearing Officer may be enforced by the appropriate Judicial Authority.

SCHEDULE C

December 11, 2011Arbitration Decision

The evidence supports a finding, based primarily on the credibility of Ms. Sobota, that she fell on a patch of ice at approximately 7:30 am on 12/28/07 while walking across a parking lot owned and controlled by the defendant.   As a result of her fall, Ms. Sobota suffered injuries to her right hand and left small finger.   She brings a claim in negligence only, as to the defendant.

The defendant owed the plaintiff a duty to take reasonable steps to keep its parking lot in a reasonably safe condition.   There was no evidence that the defendant had actual notice of the icy defect on which the plaintiff slipped.   The liability issue here is whether Ms. Sobota has proven by a preponderance of the evidence that the defendant had constructive notice of the defect.

The law as to constructive notice is exacting, and presents a formidable evidentiary obstacle to the plaintiff.   Proof of conditions which would like be productive of an icy condition are not enough;  there must be proof of notice of the specific defect, i.e. the patch of ice on which the plaintiff slipped.   The defect had to be present for a sufficient period of time in which to allow the defendant, in the exercise of reasonable care, to have taken steps to remedy the condition.

Plaintiff argues from the weather records that ice in the lot would have been present for at least 7 hours before Ms. Sobota fell.   I am not persuaded that this is necessarily so.   Precipitation fell sometime on the 27th, and again sometime on the 28th, but exactly when?   Precipitation was likely falling, per the plaintiff's testimony, while she was driving to work.   The temperature reached the freezing mark on the 27th, but when?   It was well over freezing on the 28th.   At best, the weather record reflects a likely thaw/refreeze scenario which might be likely to produce an icy condition somewhere in the lot in question;  which would be insufficient evidence to prove constructive notice of the very spot where Ms. Sobota fell.   It could also be argued that the defendant's employee Angel visited the lot before the plaintiff fell.   He started work 4 hours before the fall, and the testimony of Mr. DePasquale was that he likely was at the lot before 7:30am because he visits the 2 commercial properties, and the lot was one of these, first in the morning.   If so, it could be inferred that if there was no sand or salt on the spot where the plaintiff fell, it was because there was no ice there at the time of the inspection.

Ms. Sobota fell on a patch of ice approximately the size of her foot.   Had this been a large patch of ice, or had there been testimony about the appearance of the ice, that it was thick, or crusty and ridged, or that there were tire tracks over it;  all evidence that the ice had been there for a while, then notice could be inferred.   Similarly, an inference could be made had there been testimony that somebody else slipped on that patch that morning before the plaintiff slipped and fell.

There was evidence that on prior occasions there was ice in the lot at the time that employees arrived for work at 7:30 am.   This is evidence that conditions existed in that lot which, at times, produced ice.   Coupled with other evidence, such as the examples above, I could infer notice.   But standing alone, this evidence is insufficient to impose liability on the defendant.   The foot sized patch of ice on which the plaintiff slipped could have been formed within 5 minutes of the fall.   I am constrained by the law to find the issue of liability in favor of the defendant.

By Thomas P. Barrett, Esq.

FOOTNOTES

FN1. The Court allowed these exhibits in view of plaintiff's claim that they consist of overwhelming evidence to support her claim that the decision violates public policy because the findings of fact are not supported by the evidence..  FN1. The Court allowed these exhibits in view of plaintiff's claim that they consist of overwhelming evidence to support her claim that the decision violates public policy because the findings of fact are not supported by the evidence.

Rittenband, Richard M., J.T.R.