Date filed: 12/03/2012.
Appeal from Thurston Superior Court. Docket No: 11-2-02341-6. Judge signing: Honorable Lisa L Sutton.
Joseph A. Yazbeck Jr. (of Yazbeck Cloran & Bowser PC ), for appellants.
Benjamin D. Cushman (of Cushman Law Offices PS ), for respondent.
Authored by Thomas R Bjorgen. Concurring: Linda Cj Lee, J. Robin Hunt.
[183 Wn.App. 136] ¶ 1 -- Kerr Contractors Inc. and Liberty Mutual Insurance Group Inc., a/k/a Safeco Insurance Company of America (Kerr), appeal a superior court order granting a motion by Dan's Trucking Inc. to strike Kerr's request for a trial de novo following an arbitrator's decision awarding Dan's Trucking $6,979.57 in attorney fees. Kerr contends that the trial court erred in granting the motion to strike because it was entitled to a trial de novo under Mandatory Arbitration Rule (MAR) 7.1. We hold that because resolution of the parties' attorney fees issue remained within mandatory arbitration, Kerr was entitled to a trial de novo on that issue under MAR 7.1. Accordingly, we reverse the trial court's order granting Dan's Trucking's [183 Wn.App. 137] motion to strike and remand for trial de novo on the attorney fee issue.
¶ 2 The Washington State Department of Transportation awarded a contract to Kerr to make improvements to State Route 14 in Clark County, Washington. Kerr subcontracted with Dan's Trucking to haul asphalt for the highway improvement project. A dispute arose between the parties, and Dan's Trucking filed a complaint against Kerr for breach of contract and negligence in Thurston County Superior Court. The superior court transferred the case to mandatory arbitration. Prior to the arbitration hearing, the parties settled Dan's Trucking's underlying claims but did not resolve the amount of attorney fees to be awarded to Dan's Trucking. Kerr memorialized the parties' settlement agreement in an e-mail that stated, " We received authority from our client for the following offer: 1. Payment from Kerr to Dan's of $3,971.38; and 2. Fees in an amount to be determined by the arbitrator; 3. In exchange for dismissal." Clerk's Papers (CP) at 28. Kerr also sent the following e-mail to the arbitrator indicating that the parties had settled their primary dispute:
As I said in my voicemail to you yesterday, the parties have settled this matter, and therefore we need to cancel the arbitration hearing scheduled for tomorrow, 6/28.
However, as part of the settlement, the parties have agreed that you will decide the amount of attorney fees awarded to Dan's. Our preference would be to brief the issue and then hold a telephonic hearing on the matter with you.
CP at 29. The arbitrator subsequently awarded $6,979.57 in attorney fees to Dan's Trucking. The form on which the arbitrator entered his arbitration award ...