Consolidated Pacific Engineering, Inc. v. Greater Anchorage Area Borough

563 P.2d 252, 1977 Alas. LEXIS 561
CourtAlaska Supreme Court
DecidedApril 29, 1977
Docket2538
StatusPublished
Cited by16 cases

This text of 563 P.2d 252 (Consolidated Pacific Engineering, Inc. v. Greater Anchorage Area Borough) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consolidated Pacific Engineering, Inc. v. Greater Anchorage Area Borough, 563 P.2d 252, 1977 Alas. LEXIS 561 (Ala. 1977).

Opinions

CONNOR, Justice.

In this appeal we consider whether the superior court has jurisdiction to order the consolidation of two arbitrations which have questions of law or fact in common. In this instance one party objects to the consolidation. The agreements to arbitrate say nothing concerning consolidation.

In 1972 and 1973, the Greater Anchorage Areá Borough (GAAB) entered contracts with Consolidated Pacific Engineering, Inc. (Consolidated Pacific) to design, and Locher Company (Locher) to construct, a Career Center building for the GAAB School District. Each contract required claims or disputes arising out of the contract to be submitted to arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.1

On October 12,1973, Locher notified Consolidated Pacific that it could not obtain [253]*253certain metal-faced panels specified in the Career Center plans. Locher’s letter stated:

“. . .we wish to advise you that to our knowledge there is no product currently manufactured which meets the requirements of the specifications.”

After the Career Center was completed, Locher submitted a claim for additional compensation of $286,495.42 for the damages which resulted from specification of the unobtainable panels in the plans drawn by Consolidated Pacific. After reviewing the claim, Consolidated Pacific, acting in its capacity as supervisor of the construction, denied the additional compensation based on a determination that the delays were caused by Locher’s failure to carry out its contract obligation to obtain city approval for materials which were in fact available.

On October 2, 1974, after Consolidated Pacific had denied Locher’s claim, Locher filed a demand for arbitration against the Borough. On December 16, 1974, the Borough filed a demand for arbitration against Consolidated. In its demand the Borough maintained that either Locher itself or Consolidated Pacific was responsible for the unexpected costs incurred by Locher.

The Borough sought consolidation of the two arbitrations. The American Arbitration Association advised the Borough, Loch-er and Consolidated Pacific that the Association required the written consent of all three to the proposed consolidated arbitration. Locher agreed to the Borough’s request for consolidation. Consolidated Pacific did not file a consent. Nevertheless, by January, 1975, the Association had come to believe that Consolidated Pacific had consented to consolidation of the arbitra-tions, apparently as a result of communications between the Association and attorneys for the Borough and for Locher.

On January 28,1975, the Association notified the three parties that

“This will acknowledge all parties’ consent to add Consolidated Pacific Engineers, et al as a third party to the above captioned matter.”

From January 28, 1975, until April 9, 1975, the Association, the Borough, and Locher all believed that Consolidated Pacific intended to participate in consolidated arbitration. All communications from the Association during this period of time referred to the arbitration by the names of all three parties, and all were sent to the attorney for Consolidated Pacific as well as those for the Borough and Locher.

On April 9, 1975, with the arbitration hearing scheduled for April 14, 1975, Consolidated Pacific notified the Association that it did not consider itself a party to the arbitration. At this point the Association discovered that it had not in fact received written consent to the consolidation from Consolidated Pacific, and so the Association notified Locher and the Borough that it no longer considered Consolidated Pacific to be a party to the arbitration.

On April 15, 1975, the Borough filed a complaint against Locher and Consolidated Pacific to compel consolidated arbitration. Locher agreed to the consolidation in its answer to the complaint. The Borough’s Motion for Order to Compel Consolidated Arbitration was heard on short notice by [254]*254Judge James K. Singleton on April 23,1975. On April 28, the court ordered consolidation of the two arbitrations. Two days later the court filed an opinion elaborating its reasons for ordering consolidation. Judgment was entered accordingly on May 21, 1975. Consolidated Pacific has appealed. The consolidated arbitration has been stayed pending appeal.

No provision in Alaska’s statutes or court rules expressly either permits or prohibits consolidation of arbitrations. Our legislature has adopted the Uniform Arbitration Act, AS 09.43.010 et seq., but it is silent on this question. Neither of the contracts at issue in this case mentions the possibility of consolidation, nor do the Construction Industry Arbitration Rules which both contracts incorporate by reference. The parties, of course, draw conflicting inferences from this silence. The GAAB agrees with the trial court’s conclusion that it has jurisdiction by implication, while Consolidated Pacific contends that the trial court is left without jurisdiction. Loeher has changed its position and has filed a brief in opposition to consolidation.

Courts in other states have sharply divided over the question before us. The courts of New York have consistently held that they have power to order consolidation of related arbitrations even where there is not an identity of parties unless the consolidation would substantially prejudice any of the parties. In Symphony Fabrics Corp. v. Bernson Silk Mills, Inc., 12 N.Y.2d 409, 240 N.Y.S.2d 23, 190 N.E.2d 418 (1963), the Court of Appeals relied upon statutes which defined arbitration to be a “special proceeding” and gave the courts discretion to order consolidation of “special proceedings.” The court did not change its position, however, when a revision of the statutes eliminated the explicit statutory authorization for consolidated arbitration. Chariot Textiles Corp. v. Wannalancit Textile Co., 18 N.Y.2d 793, 275 N.Y.S.2d 382, 221 N.E.2d 913 (1966), adopting the dissenting opinion below, 21 A.D.2d 762, 250 N.Y.S.2d 493, 494-95 (1964); accord, In Re Vigo Steamship Corp., 26 N.Y.2d 157, 309 N.Y.S.2d 165, 257 N.E.2d 624, cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970).

In Grover-Dimond Associates v. American Arbitration Assn., 297 Minn. 324, 211 N.W.2d 787 (1973), the Supreme Court of Minnesota was confronted with a case like the instant case, in which consolidation of owner-architect and owner-builder arbitra-tions was sought. Minnesota, like Alaska, had no statute speaking to the question of consolidated arbitration. The court found the New York position to be persuasive.

These cases note that courts have jurisdiction to enforce agreements to arbitrate, then conclude that they thus are empowered to regulate the method of enforcement. Consolidated arbitration, they point out, tends to be less costly and time-consuming than separate arbitrations, and also eliminates the risk of conflicting awards.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Forest Marketing Enterprises, Inc. v. Department of Natural Resources
104 P.3d 40 (Court of Appeals of Washington, 2005)
Seretta Const., Inc. v. Great American Ins. Co.
869 So. 2d 676 (District Court of Appeal of Florida, 2004)
Sprucewood Investment Corp. v. Alaska Housing Finance Corp.
33 P.3d 1156 (Alaska Supreme Court, 2001)
Powers v. United Services Automobile Ass'n
6 P.3d 294 (Alaska Supreme Court, 2000)
Bay County Building Authority v. Spence Bros.
362 N.W.2d 739 (Michigan Court of Appeals, 1984)
Pueblo of Laguna v. Cillessen & Son, Inc.
682 P.2d 197 (New Mexico Supreme Court, 1984)
Litton Bionetics, Inc. v. Glen Construction Co.
437 A.2d 208 (Court of Appeals of Maryland, 1981)
W. J. Megin, Inc. v. State
434 A.2d 306 (Supreme Court of Connecticut, 1980)
BALFOUR, GUTHRIE AND COMPANY, LIMITED v. Commercial Metals Co.
607 P.2d 856 (Washington Supreme Court, 1980)
S. K. Barnes, Inc. v. Valiquette
597 P.2d 941 (Court of Appeals of Washington, 1979)
La. Stadium & Exposition Dist. v. Huber, Hunt & Nichols, Inc.
349 So. 2d 491 (Louisiana Court of Appeal, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
563 P.2d 252, 1977 Alas. LEXIS 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-pacific-engineering-inc-v-greater-anchorage-area-borough-alaska-1977.