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Sousaris v. Miller1/31/2000
We accepted the application for a writ of certiorari of petitioner-respondent-appellant Barry D. Miller, M.D. (Dr. Miller), dba Center for Cosmetic Surgery, to review the opinion of the Intermediate Court of Appeals (ICA) in Sousaris v. Miller, No. 21167, slip op. (Haw. Ct. App. December 30, 1998) [hereafter "ICA's opinion"]. In its opinion, the ICA framed the dispositive issue as whether HRS chapter 658 allowed a party to amend a timely petition to vacate an arbitration award by raising a new ground to vacate the arbitration award during the period between the expiration of the ten-day period set forth in Hawai`i Revised Statutes (HRS) § 658-11 (1993) and the entry of the circuit court's order denying the petition to vacate and granting the petition to confirm the arbitration award. The ICA answered the foregoing question in the negative and denied Dr. Miller's appeal. We granted certiorari to determine whether a party could file a motion for reconsideration from the grant or denial of a petition to confirm or vacate an arbitration award in a HRS chapter 658 proceeding. Upon further review, we hold, pursuant to the Hawai`i Rules of Civil Procedure, that a party may seek reconsideration of a order granting an arbitration award. However, insofar as Dr. Miller's motion for reconsideration asserted a new statutory ground to vacate the arbitration award and proffered new evidence directed exclusively at the new ground, we agree with the ICA that Dr. Miller's motion for reconsideration contravened the stringent ten-day notice requirements set forth in HRS § 658-11 and, thus, was untimely.
We believe, however, that it is necessary to clarify that a motion for reconsideration, which is limited to new evidence that (1) supports a statutory basis that has already been raised in a timely motion to vacate pursuant to HRS §§ 658-9 (1993) and 658-11 and (2) could not have been raised in a petition to vacate nor could have been discovered, despite due diligence, prior to the expiration of the ten-day period in HRS § 658-11, would not contravene HRS § 658-11.
I. BACKGROUND
Rosemary Sousaris (Rosemary) died as a result of Dr. Miller's alleged negligence in performing liposuction surgery and in rendering post-operative treatment. Pursuant to the terms of an arbitration agreement between Rosemary and Dr. Miller, respondent-claimant-appellee Joseph Sousaris (Sousaris), in his capacities as an individual, special administrator of his late wife's estate, and as next friend of his late wife's surviving minor children, Michael J. Sousaris and Nicholas A. Sousaris, brought a negligence claim against Dr. Miller. Dr. Miller and Sousaris participated in selecting Peter Char, Esq. (Char), Kathy Muller (Muller), and Ronald P. Peroff, M.D. (Dr. Peroff), as the arbitration panel in this case. In his notice of appointment, Dr. Peroff divulged that Richard K. Quinn (Quinn), counsel for Dr. Miller during the arbitration, had defended him in a medical malpractice suit in which L. Richard Fried, Jr. (Fried), counsel for Sousaris, had represented the plaintiff.
E. Arbitration award
The arbitration panel issued its decision on July 7, 1997 (the arbitration award), wherein Char and Dr. Peroff concluded that Dr. Miller was "actionably negligent in his care and treatment of [Rosemary]." Although Muller did not concur with Char and Dr. Peroff as to Dr. Miller's negligence, she joined Char and Dr. Peroff in determining that "the evidence does not support [Dr. Miller's] contention that [Rosemary] was negligent or assumed the risk of her death and that Tripler Army Medical Center was negligent in its care and treatment of [Rosemary] between Friday, January 12, 1996 and Thursday, January 18
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