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The Appeals Court of Massachusetts rejected a challenge to an arbitration award based upon a plaintiff’s contention that the arbitrator refused to consider material evidence.
In Borges v. Arbella Mutual Ins. Company, No. 06-P-257, 2006 WL 3499414 (Mass. App. Ct. Dec. 5, 2006), Borges sought to vacate an arbitration award issued in favor of Arbella Mutual Insurance Company (Arbella). The award denied Borges’ claim for underinsured motorist benefits, finding that several of his injuries stemming from an automobile accident were actually preexisting conditions.
The trial court dismissed the complaint, but Borges filed an appeal, contending that the arbitrator refused to consider a physician’s report suggesting the injuries were “causally related to the accident.” Finding that the “plaintiff had no realistic hope of success,” the Court upheld the trial court’s dismissal of the motion to vacate, and granted Arbella’s request for double appellate costs, which Massachusetts courts award in certain “frivolous appeals.” Mass. R.A.P. 25.
The Court first noted that arbitration decisions are “impregnable ‘[s]hort of fraud, arbitrary conduct, or significant procedural irregularity.” Dadak v. Commerce Ins. Co., 53 Mass.App.Ct. 302, 306 (Mass. App. Ct. 2001) (quoting Grobet File Co. of America, Inc. v. RTC Sys., Inc., 26 Mass.App.Ct. 132, 135 (1988)). In the past, Massachusetts courts have concluded that the failure to consider evidence was insufficient, in and of itself, to set aside an arbitrator’s decision. Drywall Sys., Inc. v. ZVI Constr. Co., 51 Mass. App. Ct. 353, 364-65 (Mass. App. Ct. 2001).
Here, the arbitration record was left open for one month following the hearing, allowing counsel or both parties to make limited post-hearing submissions. Yet, Borges never made any attempt to convince the arbitrator to allow the physician’s report into evidence. Thus, the issue had been waived, and Borges had no legitimate ground for challenging the arbitration award on appeal.
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