Southwest Harbor Sch. Comm. v. Perry & Morrill, Inc.

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION

KENNEBEC, ss. DOCKET NO. CV-03-19 SKS ~ KEN ~ a3 2003 SOUTHWEST HARBOR SCHOOL COMMITTEE, Plaintiff DONALD LG. 8 LAY ALTE ASS Vv. CONFIRMATION OF

iFEB 18 004 ARBITRATION AWARD PERRY & MORRILL, INC.,

Defendant

This matter comes before the court on the motion of the plaintiff to confirm an arbitration award and motion of the defendant to vacate that same award. Ordinarily, the court would confirm an arbitration award unless there are grounds to vacate that award. 14 M.R.S.A. § 5937. Among those circumstances when an award might be vacated are where, “There was evident partiality by an arbitrator appointed as a neutral.” 14 M.R.S.A. § 5938(1). The burden of proving the “evident partiality” of the arbitrator rests on the moving party.

The plaintiff points out that in order to preserve an issue of partiality to attack an arbitrator’s award, the moving party must have brought the question to the attention of the arbitrator to allow an opportunity to address the concerns at that level. Concord General Mut. Ins. Co. v. Northern Assurance Co., 603 A. 2d 470 (Me. 1992). In the present case, the defendant did not raise any question of the arbitrator's impartiality under the motion to vacate the award. Therefore, this issue has been waived.

The court has also reviewed the competing affidavits and has concluded that even if the partiality /impartiality issue had not been waived by the defendants, they

2

have still failed to adequately demonstrate any partiality on behalf of the arbitrator in

question. For the reasons stated, the entry will be:

(1) Defendant's motion to vacate award is DENIED.

(2) Plaintiff’s motion to confirm arbitration award is GRANTED and this court hereby CONFIRMS the June 5, 2003 arbitration award in favor of Southwest Harbor School Committee against Perry & Morrill in the amount of $91,176 pursuant to 14 M.RS.A. § 5937 et seq. It is further ORDERED that the balance of the retainage in the amount of $30,000 held by the plaintiff may be applied against the judgment awarded above.

Dated: December 2003 Mikdias

S. Kirk Studstrup ° Justice, Superior Court

SOUTHWEST HARBOR SCHOOL COMMITTEE - PLAINTIFF SUPERIOR COURT Attorney for: SOUTHWEST HARBOR SCHOOL COMMITTEE Docket No

KENNEBEC, ss. AUGSC-CV-2003-00196

BRIAN D WILLING DRUMMOND WOODSUM & MACMAHON

245 COMMERCIAL ST. DOCKET RECORD PO BOX 9781 PORTLAND ME 04104-5081 vs PERRY & MORRILL INC - DEFENDANT

Attorney for: PERRY & MORRILL INC BRETT D BABER

LAW OFFICE OF BRETT D. BABER PA

304 HANCOCK ST, SUITE 2E BANGOR ME 04401 -

Filing Document: FILING MOTION Minor Case Type: ARBITRATION AWARDS Filing Date: 07/31/2003

Docket Events: 07/31/2003 07/31/2003 07/31/2003 07/31/2003 08/11/2003 08/11/2003 08/15/2003 FILING DOCUMENT - FILING MOTION FILED ON 07/31/2003 Party(s): SOUTHWEST HARBOR SCHOOL COMMITTEE

MOTION - MOTION TO CONFIRM ARBITRATION FILED ON 07/31/2003 Plaintiff's Attorney: BRIAN D WILLING

PROPOSED ORDER.

Party(s): SOUTHWEST HARBOR SCHOOL COMMITTEE ATTORNEY - RETAINED ENTERED ON 07/31/2003 Plaintiff's Attorney: BRIAN D WILLING

CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 07/31/2003 Plaintiff's Attorney: BRIAN D WILLING MAILED TO ATTY. OF RECORD.

Party(s): .PERRY & MORRILL INC OTHER FILING - OPPOSING MEMORANDUM FILED ON 08/11/2003 Defendant's Attorney: BRETT D BABER

DEFENDANT'S MEMORANDUM IN SUPPORT OF APPLICATION TO VACATE AND IN OPPOSITION TO MOTION TO CONFIRM ARBITRATION AWARD, FILED.

Party(s): PERRY & MORRILL INC MOTION - MOTION TO VACATE FILED ON 08/11/2003 Defendant's Attorney: BRETT D BABER

DEFENDANT'S APPLICATION TO VACATE ARBITRATION AWARD WITH ATTACHMENTS AND PROPOSED ORDER, FILED.

Party(s): SOUTHWEST HARBOR SCHOOL COMMITTEE OTHER FILING - OPPOSING MEMORANDUM FILED ON 08/14/2003 Plaintiff's Attorney: DEIRDRE SMITH

PLAINTIFF'S OBJECTION TO DEFENDANT'S APPLICATION TO VACATE ARBITRATION AWARD AND REPLY BRIEF IN SUPPORT OF PLAINTIFF'S APPLICATION TO CONFIRM AWARD.

Page 1 of 3 Printed on: 12/04/2003