MMR-Radon Constructors, Inc. v. Continental Ins. Co.

714 So. 2d 1, 1998 WL 166864
CourtLouisiana Court of Appeal
DecidedMarch 3, 1998
Docket97 CA 0159
StatusPublished
Cited by13 cases

This text of 714 So. 2d 1 (MMR-Radon Constructors, Inc. v. Continental Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MMR-Radon Constructors, Inc. v. Continental Ins. Co., 714 So. 2d 1, 1998 WL 166864 (La. Ct. App. 1998).

Opinion

714 So.2d 1 (1998)

MMR-RADON CONSTRUCTORS, INC.
v.
The CONTINENTAL INSURANCE COMPANY, and Woodrow Wilson Construction Company, Inc.

No. 97 CA 0159.

Court of Appeal of Louisiana, First Circuit.

March 3, 1998
Rehearing Denied May 13, 1998.

*2 Craig L. Kaster, Gunn, Smith & Kaster, Zachary, for Plaintiff-Appellee MMR-Radon Constructors, Inc.

George K. Anding, Jr., Rainer & Anding, Baton Rouge, for Defendants-Appellants Continental Insurance Company and Woodrow Wilson Construction Company, Inc.

Before FOIL, PARRO and GUIDRY, JJ.

PARRO, Judge.

This appeal is from a judgment confirming an arbitration award in favor of a sub-contractor, and denying the general contractor's motion to vacate that award. We affirm.

FACTS AND PROCEDURAL HISTORY

Woodrow Wilson Construction Company, Inc. ("Wilson") was the general contractor for construction of dormitories at Avoyelles Correctional Institute, Winn Correctional Center, and Allen Correctional Center. The State of Louisiana, through the Louisiana Correctional Facilities Corporation ("LCFC"), was the owner of the prison facilities where the new dormitories were to be built. The Continental Insurance Company ("Continental") provided Wilson's performance and payment bond on the project. Wilson sub-contracted site preparation and cleanup work to Radon, Inc., the predecessor-in-interest to MMR-Radon Constructors, Inc. ("Radon"). During the project, Radon claimed some of the work it was required to do exceeded the scope of its contract and asked for additional payments from Wilson. Wilson denied the claims. In October 1992, Radon requested arbitration of its claims, pursuant to the terms of its contract. In January 1993, to preserve its rights against Wilson and Continental, Radon also filed this lawsuit. On Radon's motion, the litigation was stayed pending the outcome of the arbitration.[1]

Wilson and Continental then filed a separate suit for declaratory judgment and for stay of arbitration, alleging the matter was not subject to arbitration as long as claims were being brought against the owner under the main contract and those claims were not subject to arbitration. The court in that suit agreed, and the arbitration proceedings were halted.[2]

In March 1994, Wilson filed a third party demand against LCFC in this suit for reimbursement, in the event Radon's claims were recognized. LCFC moved for summary judgment in its favor, which was granted. Since this judgment dismissed LCFC, thereby eliminating Wilson's claims against the owner, Radon again moved successfully to stay this litigation, pending arbitration. Also, Wilson appealed the granting of summary judgment in favor of LCFC; this court *3 affirmed that decision and the supreme court denied the writ application. See MMR-Radon Constructors, Inc. v. The Continental Ins. Co., 95-2266 (La.App. 1st Cir. 6/28/96), writ denied, 96-1952 (La.11/1/96) (unreported decision).

The arbitration finally commenced. Three arbitrators were selected in accordance with the applicable rules of the American Arbitration Association. The hearing on the merits of Radon's claim and a counterclaim filed by Wilson took place on nine days over the course of four months in 1996.[3] At some point during this period, one of the arbitrators, attorney Frederick R. Bott, was diagnosed with malignant lymphoma and, although he was willing to continue on the panel, one hearing date had to be re-scheduled to accommodate him. The last scheduled dates for the hearing were May 16th and 17th. On the morning of the 16th, Mr. Bott's secretary called the case administrator for the arbitration and advised that Mr. Bott had been unexpectedly hospitalized and would be in the hospital at least through the 19th, and perhaps longer. When the parties were advised of this situation, several possible courses of action were considered. Radon suggested the session be video-taped for later review by Mr. Bott; Wilson opposed this because it would not allow full participation by Mr. Bott as the evidence was presented. Radon then moved to vacate Mr. Bott's position and allow the remaining arbitrators to continue the hearing; Wilson objected to this procedure, preferring to postpone the hearing again until Mr. Bott might be able to participate. However, because the hearing had been so often delayed, and the rules under which the arbitration was being conducted allowed the case administrator to vacate Mr. Bott's position, Radon's motion to vacate Mr. Bott's position was granted, over the objection of Wilson. No attempt was made to contact Mr. Bott in the hospital concerning this decision. The two remaining arbitrators decided to continue with the hearing on the merits with just the two of them constituting the arbitration panel, a course of action which was also permissible under the rules. They eventually decided the case in Radon's favor, awarding it $404,774.90 on its claims, plus interest from October 15, 1992. Wilson was also ordered to reimburse Radon $3,018.56 for arbitration expenses and fees. Nothing was awarded to Wilson on its counterclaim.

The award was payable within thirty days and, after that time had elapsed with no payment from Wilson, Radon filed a motion with the district court to confirm the arbitration award. Wilson responded with a motion to vacate the award. After reviewing briefs and documentary evidence, hearing oral arguments, and allowing the supplementation of the record with affidavits from several of the arbitration participants, the court granted the motion to confirm the arbitration award and denied the motion to vacate it. On October 11, 1996, the court signed a judgment against Wilson and Continental, in solido, and in favor of Radon, in the amount of $407,774.90, with legal interest from October 15, 1992, plus reimbursement of arbitration costs in the amount of $3,018.56, together with all court costs. Wilson and Continental appeal that judgment.

PRELIMINARY MATTER—MOTION TO REMAND

After this appeal was filed, Wilson filed a motion in this court to remand the case for the introduction of new evidence. Radon opposes this motion. The gist of the motion to remand is that after the appeal had been filed and briefs submitted, Wilson learned of a previously undisclosed friendship and professional relationship between one of the arbitrators and the brother of a Radon principal officer/owner. Accompanying Wilson's motion to remand were various affidavits concerning this relationship and communications which might have occurred and might have influenced the arbitrator's decision. Radon's opposition brief also had several affidavits attached which, although acknowledging the existence of such a relationship, denied many of the allegations made in the Wilson affidavits. In particular, these affidavits specifically denied that anyone attempted *4 to influence the arbitration and stated categorically that there were no communications with any arbitrator before, during, or after the arbitration concerning the subject of the arbitration, other than through the attorneys for the parties.

On the basis of this information, Wilson also filed a separate suit in the Nineteenth Judicial District Court to nullify the October 11, 1996 judgment, pursuant to LSA-C.C.P. arts. 2001 et seq. In that suit, Wilson alleged that new evidence was discovered which constitutes a sufficient basis for nullification of the judgment, and that its suit was filed within one year of discovery of the new evidence.

Under LSA-C.C.P. art.

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Bluebook (online)
714 So. 2d 1, 1998 WL 166864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mmr-radon-constructors-inc-v-continental-ins-co-lactapp-1998.