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Tolson v. Allstate Insurance Co.8/13/2001
mounts awarded. Our cases, however, have not prevented a reviewing court from examining an arbitrator's letter when the question is whether the award is sufficient to settle the dispute on the merits. In Lindon, the arbitrator's letter stated that the contract had not been modified because there was no consideration for the modification. But the law does not require consideration to modify a contract. Accordingly, the reviewing court held there was an error of law on the face of the award, and remanded for a rehearing by the arbitrator. Lindon, 57 Wn. App. at 816.
This case presents a similar situation. The award excluding damages for memory loss is inconsistent with some of the statements in the arbitrator's letter, and consistent with others. We conclude the internal inconsistency amounts to an error of law on the face of the award. We reverse the trial court's denial of the motion to vacate, and direct the trial court to seek clarification from the arbitrator. See RCW 7.04.160(5); Lindon, 57 Wn. App. at 816. If the arbitrator states that he found no memory loss attributable to the 1996 accident, the order confirming the award should be reinstated. If the arbitrator states that he did find memory loss attributable to the accident, the matter should be remanded to the arbitrator for further proceedings.
OFFSET
The parties submitted the issue of offset to the trial court. The court ruled that Allstate was entitled to offset the $8,504.70 paid under the medical payments coverage against the $19,060.54 uninsured motorist award. Allstate's policy states that an uninsured motorist award will be reduced by 'all amounts paid or payable' under the personal injury protection, automobile medical payments or any similar medical payments coverage. This provision is valid and enforceable. Keenan v. Industrial Indemnity Insurance Co. of the Northwest, 108 Wn.2d 314, 738 P.2d 270 (1987); Schrader v. Grange Insurance Assoc., 83 Wn. App. 662, 922 P.2d 818 (1996), reversed on other grounds by, Price v. Farmers Insurance Co. of Washington, 133 Wn.2d 490, 946 P.2d 388 (1997). Tolson appears to argue that such an offset is permissible only when the offset leaves the insured fully compensated. Assuming that to be true, he has failed to demonstrate that he will not be fully compensated. He will receive the full amount of the arbitration award. Tolson benefited from Allstate's payments of his medical specials by approximately $5,000 more than was actually due by virtue of the arbitration award. Reimbursing Allstate for its overpayment does not change the fact that Tolson will be fully compensated for the medical specials found to be attributable to the accident, as well as the full amount of general damages. The trial court properly allowed Allstate to offset the entire amount of medical payments previously paid.
Reversed and remanded.
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