Safeco Prop. & Cas. Ins. Cos. v Dye

[*1] Safeco Prop. & Cas. Ins. Cos. v Dye 2009 NY Slip Op 52352(U) [25 Misc 3d 1230(A)] Decided on November 18, 2009 Supreme Court, Queens County Rios, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2009
Supreme Court, Queens County

Safeco Property and Casualty Insurance Companies, Petitioner,

against

Roshaun Dye, Respondent.



21646/09

Jaime Antonio Rios, J.

The issue presented by this petition to vacate an arbitration award is whether the arbitrator exceeded his authority in placing a monetary value on the Respondent's injury which exceeded Petitioner's policy limits.

On August 27, 2006, a vehicle owned and operated by respondent, Roshaun Dye (Dye) and insured by Safeco was struck by an hit and run motor vehicle.

By demand dated December 3, 2007, Dye sought arbitration of his claim for uninsured motorist (UM) benefits from Safeco on the basis that the accident involved a hit and run vehicle.

The arbitration was held on April 20, 2009. Upon completion of the arbitration of this matter, the arbitrator, in his award dated May 15, 2009 determined that "the compensatory value of the injuries sustained by the Claimant RD to be $100,000.00. However, I also find that the Claimant RD was 75% comparatively negligent in causing this accident and therefore his award is reduced and he is entitled to $25,000.00".

Safeco currently seeks to have the arbitration decision of May 15, 2009 vacated on the basis that: (1) the arbitrator exceeded his power by awarding benefits in excess of applicable policy limits; (2) there is no evidence in the record to support that respondent sustained a serious injury, and (3) the arbitrator's exclusion of pertinent evidence constitutes misconduct. Safeco contends that although the arbitrator continued the hearing for post hearing submissions, the arbitrator did not consider its submissions, which consisted of a scene photograph, application for no fault benefits, medical records, and IME reports relating to an accident on September 29, 2007, and MRI of the right knee, dated October 15, 2007 in his decision. Safeco does not seek to vacate the arbitrator's liability determination. [*2]

Dye opposes vacatur of the arbitration award and by motion submitted simultaneously herewith, made under (Queens) indexNo. 31016/07 seeks to confirm the arbitration award contending that: (1) the arbitrator did not exceed his power and authority by valuing his injuries at $100,000.00 before reducing the award by his contributory negligence; (2) although the award may not exceed the policy limit, the arbitrator is not limited in determining the value of the award, and (3) the arbitrator "may do justice as he sees it" and include or exclude any evidence. Dye concedes that there was a post hearing submission.

There is no transcript of the hearing.

CPLR 7511(b) provides that an application to vacate an arbitration award by a party who has participated in the arbitration may only be granted upon the grounds that the rights of that party were prejudiced by corruption, fraud, or misconduct in procuring the award, partiality of the arbitrator, the arbitrator exceeded his powers or failed to make a final and definite award, or a procedural failure that was not waived (see Silverman v Cooper, 61 NY2d 299 [1984]; GEICO Gen. Ins. Co. v Sherman, 307 AD2d 967 [2003]; State Farm Mut. Auto. Ins. Co. v Arabov, 2 AD3d 531 [2003]).

Consistent with public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying an arbitration award are few in number and narrowly applied, with the list of potential objections being exclusive (see Domotor v State Farm Mut. Ins. Co., 9 AD3d 367 [2004]).

Where the obligation to arbitrate does not arise through voluntary agreement, but through statutory mandate such as a claim by an insured against an insurance carrier under the uninsured motorists' endorsement, it is subject to compulsory arbitration and requires closer judicial scrutiny of the arbitrator's determination (see Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]. To be upheld, the arbitrator's award must have evidentiary support and can not be arbitrary and capricious (see Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, supra ; Furstenberg v Aetna Cas. & Sur. Co., 49 NY2d 757 [1980]; Mount St. Mary's Hosp. v Catherwood, 26 NY2d 493 [1970]; Kemper Ins. Co. v Westport Ins. Co., 9 AD3d 431 [2004]; State Farm Mut. Auto. Ins. Co. v Arabov, 2 AD3d 531 [2003]; Scher v State Farm Ins. Co., 240 AD2d 415 [1997]; American Motors Sales Corp. v Brown, 152 AD2d 343 [1989]; Rose v Travelers Ins. Co., 96 AD2d 551 [1983]).

An arbitrator is not required to justify his award, it must merely be evident that there exists a rational basis for it upon a reading of the record (see Block v St. Paul Fire & Marine Ins. Co., 137 AD2d 475 [1988]; Dahn v Luchs, 92 AD2d 537 [1983]).

Here, the arbitrator's decision was based upon Dye's testimony, police report, photos of the accident scene and Dye's vehicle, MRI reports of Dr. Shapiro and Dr. Rothpearl; hospital and medical records submitted by Dye and Safeco; a copy of Safeco's insurance policy, and examination under oath of Dye. The MRI report of the right knee by Dr. Shapiro revealed [*3]"abnormal signal in the posterior horn of the medial meniscus without articular extension" and "joint effusion"; the MRI of the right knee by Dr. Rothpearl revealed "medial, supra patellar plicai", "thickening and increased signal associated with the medial collateral ligament, consistent with a low-grade partial tear", "lateral patellar tilt", "suboptimal visualization of the anterior cruciate ligament. A tear of this ligament cannot be excluded and clinical correlation is recommended", and the MRI report of the lumbar spine revealed "right foraminal herniation at L5-S1. According to the records of Lutheran Medical Center, on November 29, 2007, Dye underwent arthroscopic surgery to the right knee, which revealed "medial meniscal tear of the medial and lateral side", "synovitis of the medial compartment" and "cartilage abrasion on the medial femoral condyle".

Judicial review of an arbitrator's award is very limited (see Pearlman v Pearlman, 169 AD2d 825 [1990]) and the fact findings of the arbitrator may not be second guessed by a reviewing court (see Liberty Mut. Ins. Co. v Sedgewick of New York, 2007 NY Slip Op 6882). The question of whether a claimant has sustained a serious injury is a matter within the province of the arbitrator not the courts (see Aetna Cas. & Sur. Co. v Cochrane, 64 NY2d 796 [1985]). Based upon the present record, the arbitrator's award has ample evidentiary support and is thus, rationally based. Additionally, even if the arbitrator failed to consider certain evidence, vacatur of the award would not be warranted (see American Express Prop. & Cas. Co. v Vinci, 63 AD3d 1055 [20009]).

Moreover, while an arbitration award may be vacated upon the ground that the arbitrator exceeded his authority by making an award in excess of the policy limits, here, the arbitrator made an award within the policy limits.

Accordingly, Safeco's motion seeking vacatur of the award is denied. The arbitration award of May 15, 2009 is confirmed and Dye is granted leave to enter judgment accordingly.

Dated: November 18, 2009________________________

J.S.C.