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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SARA ROBERTSHAW,                            )       NO. 66753-0-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
DOLORES JOHNSON,                            )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: June 11, 2012
                                            )

       Lau, J.  --       Dolores Johnson appeals the judgment entered on a mandatory 

arbitration award in favor of Sara Robertshaw.  Johnson argues that the trial court 

should have reduced the arbitrator's award to reflect previous insurance payments to 

Robertshaw.  However, Johnson did not seek an offset at arbitration and failed to seek 

review of the arbitration award by requesting a trial de novo following entry of the 

arbitrator's award.  Because the judgment entered on the arbitration award is not 

appealable, we dismiss.

                                            FACTS

       As she crossed a street at a crosswalk, Sara Robertshaw was struck by a car  

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driven by Dolores Johnson on October 30, 2007.  Robertshaw sued Johnson in 2010.  

She alleged negligence and sought damages.  Johnson answered the complaint and 

raised affirmative defenses of comparative fault and failure to mitigate damages.  The 

case was removed to mandatory arbitration.  Following arbitration, the arbitrator found 

Johnson to be 100 percent liable and awarded damages to Robertshaw of $12,444.  

That amount included $4,662 in medical specials, $144 in lost wages, $6,500 in 

general damages, and statutory costs and attorney fees of $1,238.  

       Neither party requested a trial de novo.  Twenty-one days after the arbitrator's 

final award was filed, Robertshaw filed a motion in King County Superior Court for entry 

of judgment on the award.  In response, Johnson asked the court to reduce the amount 

awarded for medical specials by $4,437, the amount Johnson's insurer, State Farm, 

had already paid to Robertshaw for medical treatment.  Johnson proposed that the 

court enter judgment for $8,0006. In support of this request, Johnson submitted the 

declaration of a State Farm insurance adjuster who confirmed the amount of the prior 

insurance payments.  In reply, Robertshaw pointed out that Johnson did not plead 

offset as an affirmative defense, did not present any evidence regarding her entitlement 

to an offset at arbitration, and failed to request a trial de novo following arbitration.  The 

court entered judgment for the full amount of the arbitrator's award, $12,444, and 

denied Johnson's motion to reconsider.  Johnson appeals.  

                                          ANALYSIS

       This case involves arbitration under chapter 7.06 RCW, which authorizes courts 

to impose mandatory arbitration of civil suits where the amount claimed is $50,000 or 

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less.  RCW 7.06.020(1); Williams v. Tilaye, ___ Wn.2d ___, 272 P.3d 235, 238 (2012).  

The purpose of authorizing mandatory arbitration in certain civil cases is to alleviate 

court congestion and reduce delay in hearing civil cases.  Malted Mousse, Inc. v. 

Steinmetz, 150 Wn.2d 518, 526, 79 P.3d 1154 (2003);  Dill v. Michelson Realty Co.,  

152 Wn. App. 815, 819, 219 P.3d 726 (2009).  The procedures to implement the 

mandatory arbitration of civil actions are as provided in the Superior Court Mandatory 

Arbitration Rules (MAR) adopted by our Supreme Court.  RCW 7.06.030;  Nevers v. 

Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997). 

       The mechanism to obtain judicial review of a mandatory arbitration ruling is to 

timely request a trial de novo.  Malted Mousse, 150 Wn.2d at 529.  RCW 7.06.050 

provides the mechanism to seek review of an arbitration award and, if no request for a 

trial de novo is made, the mechanism to reduce the arbitration award to judgment:

       (1) Following a hearing as prescribed by court rule, the arbitrator shall file his 
       decision and award with the clerk of the superior court, together with proof of 
       service thereof on the parties.  Within twenty days after such filing, any 
       aggrieved party may file with the clerk a written notice of appeal and request for 
       a trial de novo in the superior court on all issues of law and fact.  Such trial de 
       novo shall thereupon be held, including a right to jury, if demanded.
              . . . . 
              (2) If no appeal has been filed at the expiration of twenty days following 
       filing of the arbitrator's decision and award, a judgment shall be entered and may 
       be presented to the court by any party, on notice, which judgment when entered 
       shall have the same force and effect as judgments in civil actions.

       MAR 6.3 expands upon the consequences of failing to request trial de novo:

              Judgment.  If within the 20-day period specified in rule 7.1(a) no party has 
       properly sought a trial de novo, the prevailing party on notice as required by CR 
       54(f) shall present to the court a judgment on the award of arbitration for entry as 
       the final judgment.  A judgment so entered is subject to all provisions of law 
       relating to judgments in civil actions, but it is not subject to appellate review and 
       it may not be attacked or set aside except by a motion to vacate under CR 60.

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(Boldface omitted.)  

       Thus, according to the statutory scheme and the rules governing mandatory 

arbitration, an arbitration award is not appealable.  MAR 6.3; Cook v. Selland Constr., 

Inc., 81 Wn. App. 98, 912 P.2d 1088 (1996).  If the aggrieved party fails to seek a trial 

de novo within the deadline set forth in MAR 7.1(a), the prevailing party is entitled to an 

entry of judgment on the award.  MAR 6.3. Restricting judicial review of arbitration 

awards promotes the legislative purposes of finalizing disputes, alleviating court 

congestion, and reducing delay.  Carpenter v. Elway, 97 Wn. App. 977, 984, 988 P.2d 

1009 (1999).  

       The decision in Dill v. Michelson Realty is instructive.  In Dill, the plaintiffs filed 

suit under the Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, alleging 

that the defendants unlawfully disposed of or destroyed their personal property.  The 

plaintiffs sought damages in excess of $125,000, but for purposes of arbitrability, 

agreed to waive any claim in excess of $50,000.  Following arbitration, the arbitrator 

awarded damages of $45,000, but in a separate award, awarded approximately 

$28,000 in attorney fees and costs.  

       The defendants did not request a trial de novo, but in moving for entry of 

judgment on the arbitration award, asked the court to reduce the attorney fees so the 

total award would not exceed $50,000.  The superior court entered judgment on the 

award, declining to reduce it as the defendants requested.  Division Two of this court 

dismissed the appeal because the defendants "decided against a trial de novo and 

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instead filed an appeal that the arbitration rules do not allow."  Dill, 152 Wn. App. at 

822.  

       Parties that fail to request a trial de novo may not alter an arbitration award by 

"requesting action by the Superior Court which would amend that award."  Trusley v. 

Statler, 69 Wn. App. 462, 465, 849 P.2d 1234 (1993).  In Trusley, the plaintiff sued the 

Statlers for breach of contract.  Following mandatory arbitration, the arbitrator 

dismissed the complaint but denied the Statlers' request for attorney fees under RCW 

4.84.185.  When they moved for entry of judgment on the award, the Statlers asked the 

superior court to award attorney fees based on the offer of settlement statute, RCW 

4.84.250.  The trial court awarded fees.  On appeal, Division Three of this court 

concluded that since the Statlers failed to ask the arbitrator to award fees on the basis 

requested and then did not seek a trial de novo, they were "limited to judgment on the 

arbitrator's award."  Trusley, 69 Wn. App. at 464.  "Both parties, by not asking for a trial 

de novo, accepted the arbitrator's award and may not alter it by requesting action by 

the Superior Court which would amend that award."  Trusley, 69 Wn. App. at 465.  

       As in Trusley, because Johnson did not seek review of the award, the trial court 

could only enter judgment but could not amend the award.  And as the trial court 

correctly concluded, Mercier v. GEICO Indemnity Co., 139 Wn. App. 891, 903, 165 

P.3d 375 (2007), does not compel a different result.  In that case, Mercier sued GEICO, 

his insurance company.  Mercier had previously received a total of $35,000 in 

payments from both GEICO and the tortfeasor's insurer.  GEICO argued at arbitration 

that it was entitled to offset the damages awarded by amount of insurance benefits 

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already received by Mercier.  The arbitrator ruled, however, that he lacked authority to 

decide that issue and referred the matter to the superior court.  Following arbitration, 

the arbitrator awarded $36,000 in damages.  

       Neither party sought a trial de novo.  In moving for entry of judgment, Mercier 

proposed judgment for $36,000, while GEICO proposed judgment of $1,000.  The trial 

court applied the offset and entered judgment for $1,000.  Mercier appealed.  This court 

observed that nothing in the mandatory arbitration rules prevented the arbitrator from 

resolving all issues in the case, including offset.  Nonetheless, we concluded that the 

trial court did not improperly amend the award when it applied the offset.  We pointed 

out that in Trusley, the superior court revisited the arbitrator's decision to deny fees and 

modified it.  Whereas in Mercier, the arbitrator decided that offset was a coverage issue 

beyond the scope of arbitration and expressly reserved the issue for the court.  In 

deciding that explicitly reserved issue, the trial court "merely completed the adjudication 

of the undecided issues in the case."  Mercier, 139 Wn. App. at 902.  

       Our decision in Mercier was premised on specific facts that are not present 
here.1  The arbitrator did not decline to resolve any issues raised or refer any issues to 

the court.  Johnson did not ask the arbitrator to offset the damages and presented no 

       1 Johnson relies on several cases, including Tolson v. Allstate Ins. Co., 108 Wn. 
App. 495, 32 P.3d 289 (2001), and Sherry v. Financial Indemnity Co., 160 Wn.2d 611, 
615, 160 P.3d 31 (2007), that are inapplicable because they involve private arbitration 
agreements under chapter 7.04A RCW.  Such arbitrations are governed by different 
procedures and standards for review.  Both Tolson and Sherry also involved uninsured 
motorist claim (UIM) arbitrations.  Typically, UIM arbitration clauses limit arbitration to
the issues of liability and calculation of damages but do not include coverage issues.  
See Price v. Farmers Ins. Co., 133 Wn.2d 490, 497, 946 P.2d 388 (1997).
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evidence on the issue.  Because Johnson failed to request a trial de novo, the trial court 

was required to enter judgment on the arbitration award.  Having failed to seek review 

of the award by requesting a trial de novo, the judgment entered on the award is not 

appealable.  Accordingly, we dismiss the appeal.

       We deny Robertshaw's request for attorney fees on appeal under RCW 

7.06.060(1), MAR 7.3, and RAP 18.9.  Neither MAR 7.3 nor RCW 7.06.060(1) require 

an award of fees since no trial de novo was held or requested.  And the appeal is not 

"so totally devoid of merit that there was no reasonable possibility of reversal."  Streater 

v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980).  

WE CONCUR:

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