Cyr v. Subaru of America, Inc.

CYR_V_SUBARU_OF_AMERICA_INC.93-230; 162 Vt. 226; 647 A.2d 706

[Opinion Filed May 27, 1994]

[Motion for Reargument Denied June 23, 1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-230


 Fernand J. Cyr and Debra R. Cyr              Supreme Court

                                              On Appeal from
      v.                                      Windham Superior Court

 Subaru of America, Inc.                      March Term, 1994



 Arthur J. O'Dea, J.


 David A. Gibson, Brattleboro, for plaintiffs-appellees

 Philip C. Woodward and Sandra A. Strempel of Dinse, Erdmann & Clapp,
    Burlington, for defendant-appellant



 PRESENT:  Dooley, Morse, Johnson, JJ., and Peck, J. (Ret.), Specially
              Assigned



      JOHNSON, J.   Manufacturer Subaru of America appeals from a decision of
 the Windham Superior Court that reversed the Vermont Motor Vehicle Arbitration
 Board's refusal to reopen an award and remanded the case for a new hearing. We 
 reverse because the Board does not have authority to reopen a final arbitration
 award.
      Consumers Fernand and Debra Cyr, appellees, purchased a new Subaru from
 an authorized Subaru dealer in October 1988.  After having the car serviced
 and repaired numerous times, appellees filed a demand for arbitration with the
 Vermont Motor Vehicle Arbitration Board.  The Board held a hearing on June 6,

 

 1991 and on June 10 it issued a written decision.  It found that
 consumers were "unable to produce three repair orders which specifically"
 related to one defect and thus had "failed to prove that the manufacturer
 was allowed a reasonable opportunity to conform the vehicle to the express
 warranty."  Therefore, the Board dismissed the case with prejudice for lack
 of jurisdiction.
      Nearly four months later, on October 7, 1991, appellees requested that
 the Board reopen the case.  After a hearing, the Board denied the motion to
 reopen on its merits on December 17, 1991.
      Consumers appealed this refusal to reopen to the Windham Superior
 Court.  The court described the narrow issue before it as "whether the Board
 erred in denying the motion to reopen."  The court concluded that consumers
 had demonstrated "by clear and convincing evidence that the Board refused to
 hear evidence material to the controversy when it denied the motion to
 reopen," and thus vacated the Board's decision and remanded for the
 presentation of additional evidence.  Subaru appeals, claiming that the
 court erroneously applied the standard of review for appeals from the Board.
 We reverse the superior court order because the Board does not have
 authority to reopen a final award.
      Under the New Motor Vehicle Arbitration Act, 9 V.S.A {{ 4170 - 4181,
 "[t]he decision of the board shall be final and shall not be modified or
 vacated unless, on appeal to the superior court a party to the arbitration
 proceeding proves, by clear and convincing evidence" that one of four errors
 occurred.(FN1)  Id. { 4176(a) (emphasis added).  The Act does not specify any

 

 situation in which the Board has authority to reopen an award.  See
 generally 9 V.S.A. {{ 4170 - 4181.  In contrast, when delineating the
 authority of arbitrators operating under the authority of Vermont's general
 arbitration law, the Vermont Arbitration Act, 12 V.S.A. {{ 5651 - 5681, the
 Legislature clearly enumerated the very limited grounds upon which
 arbitrators may modify an award.(FN2)  The negative implication is that the
 Motor Vehicle Arbitration Board does not have authority to modify a final
 award.
      Nonetheless, appellees argued to the Board that it had authority to
 reopen pursuant to V.R.C.P. 60(b), which allows a party to seek relief from
 judgment or order for up to one year, or by analogy to that Rule.  Rule 60(b)
 does not save appellees' error because the Rules of Civil Procedure do not 
 apply to Board hearings.  See Condosta v. Department of Social Welfare, 154 Vt.
 465, 467, 578 A.2d 122, 123 (1990) ("The Rules of Civil Procedure . . . are
 applicable only to matters pending in a superior or district court, V.R.C.P. 1

 

 and D.C.C.R. 1; administrative hearings are not included within
 the purview of the Rules.").  In addition, the express legislative appeal
 scheme found in 9 V.S.A. { 4176 forecloses any analogy to Rule 60(b).
      Accordingly, we hold that the Board does not have authority to reopen a
 final award.  Rather, a party seeking to modify or vacate a Board award is
 required to apply to the superior court.  Thus, appellees were required to
 apply to the superior court for relief within thirty days of the Board's
 June 10, 1991 order.  9 V.S.A. { 4176(a).
      Reversed; the June 10, 1991 order of the Board is hereby reinstated.

                                    FOR THE COURT:



                                    _________________________________
                                    Associate Justice



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                                 Footnotes


FN1.  The four errors are:
     (1) the award was procured by corruption, fraud or other undue means;
     (2) there was evident partiality by the board or corruption or
     misconduct prejudicing the rights of any party by the board;
     (3) the board exceeded its powers;
     (4) the board refused to postpone a hearing after being shown
     sufficient cause to do so or refused to hear evidence material to the
     controversy or otherwise conducted the hearing contrary to the rules
     promulgated by the board so as to prejudice substantially the rights of
     a party.
 9 V.S.A. { 4176(a)(1)-(4).



FN2.   Under that Act, "[m]odification may be made for the purpose of
 clarifying the award or upon the following grounds:
     (1)  there was an evident miscalculation of figures or an evident
     mistake in the description of any person, thing or property referred to
     in the award; or
     (2)  the arbitrators have awarded upon a matter not submitted to them
     and the award may be corrected without affecting the merits of the
     decision upon the issues submitted; or
     (3)  the award is imperfect in a matter of form, not affecting the
     merits of the controversy.
 12 V.S.A. { 5664(b)(1)-(3).

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                                Concurring

 

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-230


 Fernand J. Cyr and Debra R. Cyr              Supreme Court

                                              On Appeal from
      v.                                      Windham Superior Court

 Subaru of America, Inc.                      March Term, 1994



 Arthur J. O'Dea, J.


 David A. Gibson, Brattleboro, for plaintiffs-appellees

 Philip C. Woodward and Sandra A. Strempel of Dinse, Erdmann & Clapp,
    Burlington, for defendant-appellant



 PRESENT:  Dooley, Morse, Johnson, JJ., and Peck, J. (Ret.), Specially
           Assigned


      MORSE, J., concurring.   I would not go so far as to hold that the
 standards of V.R.C.P. 60(b) do not apply to judgments of the Board.  This
 appeal should be affirmed because the ground to reopen the Board's judgment
 was not covered by Rule 60(b) (rule not designed to be a substitute for an
 appeal).  The request to reopen -- being one to reconsider and amend that
 judgment -- was untimely.  Nearly four months had passed since the Board's
 decision.


                                    ___________________________
                                    Associate Justice