Swetnam Design Constr., Inc. v. Saurer, 382 S.W.3d 73 (Ky. App., 2012)

Swetnam Design Constr., Inc. v. Saurer, 382 S.W.3d 73 (Ky. App., 2012) October 12, 2012

Moreover, the sufficiency of the evidence supporting an arbitration award is specifically nonreviewable. Taylor, 618 S.W.2d at 432 (internal citations omitted). “This is so because when a court examines the evidence and imposes its view of the case it substitutes the decision of another tribunal for the arbitration upon which the parties have agreed and, in effect, sets aside their contract.” Id. at 433.

With this said, the Kentucky Uniform Arbitration Act (hereinafter “KUAA”), and specifically Kentucky Revised Statutes (KRS) 417.160, provides that a court may vacate an arbitration award pursuant to five specific grounds:

(e) There was no arbitration agreement and the issue was not adversely determined in proceedings under KRS 417.060 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court is not ground for vacating or refusing to confirm the award. KRS 417.160(1) (a)–(e).

With respect to all arbitration agreements entered into after the effective date of the KUAA (July 13, 1984), a court may only set aside an arbitration award pursuant to those grounds set forth in KRS 417.160. 3D Enterprises Contracting Corp. v. Lexington–Fayette Urban County Government, 134 S.W.3d 558, 562–63 (Ky.2004).

Thus, if an award is to be changed, both the arbitrator and the court are restricted to doing so only in situations where there has been an evident miscalculation of figures, an evident mistake in the description of a person, thing, or property, or if the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted. KRS 417.170 and 417.130. Sub judice, we cannot discern where any of the aforementioned criteria would permit the arbitrator to modify his original award. While the arbitrator determined that the original award was “improperly determined” such is not a permitted reason to modify the award per statute; by the arbitrator exceeding the enumerated statutory powers, the trial court erred in so confirming the modification of the original award. Moreover, while the arbitrator stated that no new evidence was considered, we believe that the modification was one that could only have been made by a reconsideration of the evidence. This is not allowed. As such, we must reverse the trial court’s order confirming the modification of the arbitrator’s award of August 6, 2010, and remand this matter to the trial court with instructions to reinstate the award of July 16, 2010. The trial court and the arbitrator may then consider any statutory factors properly brought before them by the parties for modification of the arbitrator’s award of July 16, 2010.

In light of the foregoing, we reverse and remand this matter for further proceedings consistent with this opinion.

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