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Dang v. Reliance Insurance Co.

April 7, 1997

TONG BA DANG, A MARRIED MAN, AND PHU PHUOC PHAN, A SINGLE MAN, APPELLANTS,
v.
RELIANCE INSURANCE COMPANY, A PENNSYLVANIA COMPANY, PLANET INSURANCE COMPANY, A WISCONSIN COMPANY, AND UNITED PACIFIC INSURANCE, A PENNSYLVANIA COMPANY, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-11977-0. Date filed: 02/09/96. Judge signing: Hon. Richard Eadie.

Petition for Review Denied October 7, 1997,

Authored by Susan R. Agid. Concurring: Ronald E. Cox, Ann L. Ellington.

The opinion of the court was delivered by: Agid

AGID, J. -- A hit and run driver struck Tong Ba Dang's car, and he made a claim under his UIM insurance. Reliance Insurance Company, his insurer, denied the claim. Dang moved to compel arbitration. A panel of arbitrators dismissed his claim on summary judgment, and the trial court denied Dang's motion to vacate. We hold that the arbitration proceeding was appropriate under the statute and that, on the face of the award, there are no grounds for reversing the arbitrators' decision. We affirm.

FACTS

On September 7, 1992, Dang was driving on Graham Street at Martin Luther King Way in Seattle when another car struck the front corner of his Toyota Tercel. Neither Dang nor his passenger, Phu Phuoc Phan, saw the car that hit them and there were no witnesses in the area, so he waited until the following day to file an accident report with the police. Dang took his car to an auto shop after the accident and paid for the repairs in cash. He also sought extensive medical treatment for injuries suffered during the accident.

Soon thereafter, Dang filed a claim with Reliance, but it refused to pay because he had not proved that the accident occurred. Dang brought a motion to compel arbitration. Reliance submitted a motion for summary judgment to the arbitrators, arguing that it was not bound to pay Dang's claim because he failed to take any steps to determine whether the driver of the hit and run vehicle was insured. The arbitrators unanimously found that they had authority to hear Dang's claims and dispose of them in a summary judgment proceeding. The parties presented their arguments by telephone, and the panel granted Reliance's motion. The majority found that the claim was controlled by Dixie Ins. Co. v. Mello, 75 Wash. App. 328, 336, 877 P.2d 740 (1994), review denied, 125 Wash. 2d 1025 (1995), which held that an insurer was not required to pay a claim for damages caused by a "phantom" vehicle when the insured failed to use all reasonable efforts to determine whether the driver of the other car was insured. The panel declined to consider Dang's extra-contractual claims, including those based on public policy and the Consumer Protection and Civil Rights Acts, finding that they were beyond the scope of their review. Dang brought a motion to vacate the arbitration award in King County Superior Court which the court denied.

Discussion

A. Arbitration Award

Dang first contends that the arbitrators improperly disposed of his claim on summary judgment. He argues that the arbitration statute requires a full hearing. Recently this court recognized that the purpose of the arbitration rules was to provide a "quick, certain, and inexpensive alternative to litigation." Pegasus Constr. Corp. v. Turner Constr. Co., 84 Wash. App. 744, 751, 929 P.2d 1200 (1997). Arbitrators have discretion to vary the usual procedures to most efficiently decide each matter on its merits. Pegasus Constr., 84 Wash. App. at 750. Thus, arbitrators may dispose of an insured's claim in a summary judgment hearing if the issues can be resolved as a matter of law and the parties have an opportunity to present evidence and argument. Dang and Reliance were permitted to argue, and the arbitrators considered all the evidence they presented before granting summary judgment. The parties agreed that Dang took no action to determine whether the hit and run driver was insured, and the majority of the panel determined that summary judgment should be granted because the case was controlled by Dixie. The panel concluded that Dang failed to meet the Dixie requirements as a matter of law. Under these facts, the issue was properly decided as a matter of law. The summary judgment procedure was therefore appropriate.

Dang next contends that the arbitration award was improper because the arbitrators misapplied the law, Reliance procured the award by fraud and improper means and acted in bad faith, and that the arbitrators were partial to Reliance.. This court may only review the face of an arbitration award for error and may vacate an arbitration award only if one of the statutory grounds for vacating it appears on the face of the award.

Barnett v. Hicks, 119 Wash. 2d 151, 157, 829 P.2d 1087 (1992); Boyd v. Davis, 127 Wash. 2d 256, 897 P.2d 1239 (1995). Those grounds are limited to fraud, corruption, partiality, misconduct, ultra vires decisions by the panel, or arbitrators' refusal to take evidence. RCW 7.04.160. Nothing on the face of the award supports Dang's claim that the arbitrators acted in bad faith, were partial to Reliance, or the award was obtained by fraud or improper means.

Nor can we say that the arbitrators misapplied the law. The majority of the panel found that this case was controlled by Dixie, 75 Wash. App. 328, 877 P.2d 740.

In Dixie, the court held that the insurer properly denied the insured's claim because she failed to contact police and obtain the accident report or take reasonable steps to locate the "phantom" vehicle which allegedly ran her off the road. The court held that the UIM claimant must use ...


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