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The failure of a party to appeal a final, collateral court order regarding the allocation of arbitration costs prevents that party from raising that issue on appeal of a subsequent judgment, according to a state court in California.
In Ritchey v. Continental Ins. Co., No. H028576, 2007 WL 460975 (Cal. Ct. App. Feb. 13, 2007), Ritchey attempted to appeal an order denying his petition to vacate an arbitration award in a dispute with Continental Insurance, his uninsured motorist insurance carrier.
On the "eve of arbitration," the trial court had rejected Ritchey's objections to a cost-splitting agreement regarding the appointment of a single arbitrator to settle the insurance dispute. Ritchey did not appeal this order.
However, after the arbitrator ruled in favor of Continental, Ritchey filed a petition to vacate the award, claiming that the award was "obtained by undue means…in that the plaintiff was compelled to pay arbitration fees in violation of an agreement between the parties."
The Court held that it lacked jurisdiction to review the pre-arbitration order determining allocation of arbitration fees and costs. That initial order could no longer be reviewed because it was "separately and immediately appealable as a collateral order." Since Ritchey failed to appeal the order at the time, it could not reviewed on appeal from a subsequent judgment. In re Marriage of Lloyd, 55 Cal.App.4th 216, 219 (Cal. Ct. App. 1997).
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