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Tolson v. Allstate Insurance Co.8/13/2001
William Tolson appeals from a trial court order denying his motion to vacate an arbitrator's award. Because the arbitrator's letter is internally inconsistent, it is legally erroneous on its face. Accordingly, we reverse with directions to seek clarification from the arbitrator.
In 1996, William Tolson was a passenger in a car that hit an abandoned vehicle in the middle of Interstate 5. The owner of the abandoned vehicle was uninsured. Tolson submitted an uninsured motorist claim as well as a claim for medical payments to Allstate, the insurer of the driver of the car in which Tolson was riding. Allstate paid $8,504.70 in medical payments for Tolson. The uninsured motorist claim went to arbitration, as permitted by the Allstate policy. The arbitrator found that Tolson suffered a cervical strain and a mild concussion due to the accident. The arbitrator awarded Tolson $3,418.30 in medical specials, $642.24 in past wage loss and $15,000 in general damages, for a total award of $19,060.54.
MOTION TO VACATE
Tolson filed a motion in the trial court to vacate the arbitrator's award. One of the statutory grounds for vacating an award exists when the arbitrator has 'exceeded' his powers, as demonstrated by an error of law on the face of the award. RCW 7.04.160(4); Lindon Commodiites, Inc. v. Bambino Bean Co. Inc., 57 Wn. App. 813, 816, 790 P.2d 228 (1990).
The arbitrator's letter states that the evidence established that in the opinion of one doctor, Dr. Lucas, Tolson sustained memory loss on account of the accident. Nevertheless, the arbitrator did not award any damages for memory loss. The letter goes on to explain that the other doctor whose testimony he considered, Dr. Jeffrey Powell, thought the memory problem was Smore attentional'. Although the 1996 accident 'may' have been a cause of the memory problem in Dr. Powell's view, the arbitrator stated that Dr. Powell was unable to define what percentage was attributable to the accident. The arbitrator's letter further states that Dr. Lucas deferred to Dr. Powell regarding the 'extent of the brain injury , if any'. The arbitrator's letter concluded that the record lacked medical testimony to establish the 'extent' of Tolson's injury.
The arbitrator's letter can be read in at least two ways. The arbitrator may have found that Tolson sustained a brain injury , based on Dr. Lucas' testimony, but did not award any damages for the injury because Tolson failed to prove the extent to which it was attributable to the 1996 accident. As Allstate acknowledges, that would be erroneous. Once the finder of fact concludes that the defendant's conduct is the cause of an injury, the burden of segregating damages is upon the defendant. See Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265 (2000); Bennett v. Messick, 76 Wn.2d 474, 478-79, 457 P.2d 609 (1969). If Tolson proved that the 1996 accident caused any amount of memory loss or brain injury , then the burden of proving the percentage attributable to the accident was on Allstate, not on Tolson.
On the other hand, the arbitrator may not have found Dr. Lucas' testimony sufficient to establish that Tolson suffered any memory loss or brain injury on account of the 1996 accident. Perhaps the arbitrator thought that Dr. Lucas deferred to Dr. Powell as to the existence of brain injury as well as to the extent it could be attributed to the 1996 accident. If so, the award was not erroneous.
The problem is, we cannot tell from reading the letter which of these possibilities was what the arbitrator intended to say. Allstate contends that we should not read the letter as a whole, because the 'face of the award' means only the actual dollar a
Page 1 2 Washington Personal Injury Attorneys
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