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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gilbert v. State Farm Insurance Company (11/09/2007) sp-6193

Gilbert v. State Farm Insurance Company (11/09/2007) sp-6193, 171 P3d 136

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

LOIS GILBERT, )
) Supreme Court No. S- 12142
Appellant, )
) Superior Court No.
v. ) 3AN-00-03681 Civil
)
STATE FARM INSURANCE ) O P I N I O N
COMPANY, )
) No. 6193 November 9, 2007
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Michael L. Wolverton, Judge.

          Appearances: Lois Gilbert, pro se, Anchorage,
          Appellant.   Jimmy  E. White,  Hughes  Bauman
          Pfiffner  Gorski  & Seedorf, LLC,  Anchorage,
          for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating].

          FABE, Chief Justice.

I.   INTRODUCTION
          In  1994  Lois  Gilbert was involved in  an  automobile
accident.   Gilbert disagreed with State Farm Insurance  Company,
her  insurance carrier, over the extent of her injuries from  the
accident.   On  January  12,  2000,  pursuant  to  her  insurance
contract,  Gilbert submitted to arbitration a dispute with  State
Farm  over  payment  for the accident.  The arbitrator  found  in
favor  of  State  Farm.  Gilbert appealed to the superior  court,
which  affirmed the arbitrators decision.  Because  the  superior
court properly upheld the arbitrators decision, we affirm.
II.  FACTS AND PROCEEDINGS
          In  1994  Lois  Gilbert was involved in  an  automobile
accident.   Gilbert disagreed with State Farm over the extent  of
her  injuries  from  the  accident.  Pursuant  to  her  insurance
contract, Gilbert submitted to arbitration her dispute with State
Farm over payment for the accident.1  Gilbert was represented  by
counsel during the arbitration.2  On January 18, 2000, arbitrator
J.  Justin  Ripley  issued a memorandum and award,  finding  that
Gilbert  had  failed to prove that the 1994 accident  caused  her
injuries  and  declaring  State Farm the  prevailing  party.   No
longer  represented  by  counsel,  Gilbert  filed  a  motion  for
reconsideration  with the arbitrator.  During the reconsideration
process,  the arbitrator made significant procedural  concessions
and  allowed  Gilbert  to file an unusual  volume  of  materials,
including  photo copies and original photographs of the  accident
car,  of  [Gilbert] as an active young person in the  70s,  video
clips  of  [Gilbert] as a happy [child], and  of  TV  commentator
Stone  Phillips presenting a sharply divided panel discussion  on
the  subject of fibromyalgia.  In May 2000 the arbitrator  denied
Gilberts  motion  for  reconsideration, confirming  his  previous
findings  that Gilberts testimony was not credible and  that  she
had  not  met her burden of proof.  The arbitrator awarded  State
Farm augmented attorneys fees.
          Appearing pro se, Gilbert filed a notice of appeal with
the  superior  court  in June 2000.  On September  7,  2001,  the
superior court dismissed the appeal because Gilbert had not  paid
her  cost  bond.  Gilbert appealed to this court.3  On  July  28,
2004, we reversed, holding that it was an abuse of discretion  to
deny Gilberts motion to waive the cost bond requirement.4
          On  November  1,  2004, State Farm filed  a  motion  to
confirm the arbitrators award and a motion for entry of judgment.
Gilbert  opposed  the motion and moved to vacate the  arbitrators
award.   On  February 14, 2005, Superior Court Judge  Michael  L.
Wolverton  heard oral argument on the motions.  In the  following
months,  Gilbert  filed additional motions  requesting  that  the
court  review  supplemental materials and compel  discovery.   On
September 8, 2005, the superior court granted State Farms  motion
to  confirm  the  arbitrators award and denied Gilberts  motions.
The  court  found that there [was] no evidence in the  record  of
bias  or  fraud to support Ms. Gilberts claims.  Her frustrations
seem  entirely  based  on  a dissatisfaction  with  the  Arbiters
ultimate   decision,   rather  than  any  legitimate   grievances
regarding the arbitration process.
          Gilbert appeals.
III. STANDARD OF REVIEW
          We  review  a  superior courts decision  to  affirm  an
arbitration award de novo, but [t]he arbitrators findings of both
fact  and  law . . . receive great deference and as a  matter  of
both policy and law, we are loathe to vacate an award made by  an
arbitrator.5   As  a  result, we have held that  the  arbitrators
findings  of  fact are unreviewable, even in the  case  of  gross
error.6
IV.  DISCUSSION
     A.   Gilberts  Arguments that She Was Injured  in  the  1994
          Accident Are Not Properly Before this Court.
          
          Gilbert identifies her first point on appeal as whether
Appellant  was injured in the 1994 accident.  But as  State  Farm
notes, that is a factual question that the arbitrator decided  in
favor  of  State  Farm.  We do not review an arbitrators  factual
determinations, even where gross error is alleged.7  Accordingly,
we  will  not  consider Gilberts arguments that  the  arbitrators
decision was not supported by the evidence.
     B.   There  Is  No  Evidence  of  Fraud,  Undue  Means,   or
          Arbitrator Bias.
          Alaska  Statute 09.43.120(a)(1) provides that  a  court
shall  vacate an arbitrators award if the award was  procured  by
fraud  or  other  undue  means. Subsection  (a)(2)  provides  for
vacating  an  award  where  there was evident  partiality  by  an
arbitrator  appointed as a neutral or corruption in  any  of  the
arbitrators or misconduct prejudicing the rights of a party.
          Gilbert  contends that the arbitrators decision  should
be  overturned on the basis of fraud, undue means, and arbitrator
bias.   She  maintains that State Farm engaged in fraud  by:  (1)
presenting  the  arbitrator  with  a  photograph  taken  in  flat
lighting  from  the right rear of the car, which wasnt  hit;  (2)
withholding documents; (3) using a fraudulent medical review; (4)
using  a  fraudulent independent psychological  review;  and  (5)
failing to pay her claim.
          State Farm responds that there is no evidence that  the
arbitrators decision was procured by fraud.  State Farm  contends
that  Gilberts appeal results from her dissatisfaction  with  the
outcome  of  arbitration and her desire to relitigate the  issues
decided.   The superior court found no evidence in the record  to
support Gilberts allegations of fraud or bias.  We agree.
          In Alaska State Housing Authority v. Riley Pleas, Inc.,
we  examined  the  scope of AS 09.43.120(a)(1) and  rejected  the
housing  authoritys  claim that the statute  authorized  judicial
review for gross errors.8  We reasoned that fraud and undue means
connote affirmative wrongdoing by a party to the arbitration  and
do  not require a review on the merits of the controversy,  while
gross error carries no connotation of affirmative wrongdoing  and
is  a  review  on the merits.9  Gilbert points to no evidence  of
affirmative  wrongdoing.   Instead,  her  allegations  of   fraud
essentially amount to allegations of gross error.
            Gilberts  first claim is that State Farm  engaged  in
fraud when it presented the arbitrator with a photograph, Exhibit
X,  taken in flat lighting from the right rear of the car,  which
wasnt  hit.   Gilbert  contests  the  arbitrators  finding   that
  Exhibit  X, and the additional left views produced by  Claimant
during  her  testimony  show merely  rust  and  general  lack  of
maintenance, not collision damage.  Gilbert attempts to  buttress
this  argument  by pointing to evidence she believes  contradicts
the  arbitrators findings regarding damage to the  vehicle.   But
Gilbert  points to no evidence that the photograph was  false  or
that  State Farm knew it was false.  At its root, Gilberts attack
on  the  photograph amounts to an allegation that the arbitrators
          findings represent gross error and are inconsistent with the
evidence.   But such a claim of error is not reviewable  by  this
court.10
          Gilberts  second  claim is that State Farm  engaged  in
fraud  by  withholding documents.  It is not clear from  Gilberts
briefing  which  documents she contends State  Farm  fraudulently
withheld.11  Gilbert does not explain the exact nature of alleged
fraud.   Moreover, she does not claim that State Farm  failed  to
produce   documents  that  the  arbitrator  ordered  it  provide.
Rather, the essence of her argument appears to be a challenge  to
the  arbitrators  decision that State Farm need not  produce  the
documents.  Because the arbitrators legal rulings are entitled to
great  deference,12 and because Gilbert points to no evidence  of
fraud  on  the basis of withheld documents, her second claim  for
fraud fails.
          Gilberts  third claim of fraud alleges that State  Farm
used  a fraudulent medical review.  She maintains that State Farm
brought  Dr. Bidgood from out of state to conduct the review  and
sent  him  a letter falsely claiming there was no damage  to  her
car.   She  suggests  that  Dr. Bidgood then  based  his  medical
conclusions  on  this letter.  But as State Farm  notes,  Gilbert
points  to  no  evidence of a letter, nor is  there  evidence  to
support  her claim that the letter was false.13  Nor can  Gilbert
point  to  anything to substantiate her claim  that  Dr.  Bidgood
based his medical conclusions on the alleged letter, as would  be
required  to  establish a claim of fraud.  Instead, the  crux  of
Gilberts  argument is a dispute over the facts  a  dispute  which
has been resolved by the arbitrators determination.
          Gilbert next claims that State Farm engaged in fraud by
using  a  fraudulent independent psychological  review.   Gilbert
claims   that   Dr.  Sperbeck,  the  expert  who  conducted   the
independent  psychological review, changed dates in  his  report.
But  even if Dr. Sperbeck made changes or errors regarding  dates
in  her medical history, Gilbert points to no evidence that these
changes  or  errors were the result of fraud, rather than  simple
mistakes.  Moreover, it is not clear how these changes or  errors
would  have infected the process, given the wealth of information
available  to  the  arbitrator.  Gilbert also suggests  that  Dr.
Sperbeck  fraudulently concluded that she was  malingering.   But
while  Gilbert  may  feel  that the  evidence  she  presented  is
inconsistent  with  Dr.  Sperbecks  conclusions,  that  does  not
substantiate her allegation that his conclusions are the  product
of  fraud.   Again,  Gilberts fundamental  concern  is  with  the
arbitrators factual findings, not with any fraudulent  conduct.14
Thus,  the superior court correctly concluded that there  was  no
evidence the independent medical review was fraudulent.
          Gilberts final claim of fraud alleges that State  Farms
failure to pay her claim is in itself fraudulent.  She points  to
an  episode  of  NBC  Dateline, an  article  about  fraud  in  an
insurance industry periodical, and several newspaper articles  as
evidence  to  support  her  claim that  State  Farm  fraudulently
refused to pay her claim.  She demands that a jury hear this case
and  make  its  own  assessment of  her  credibility  versus  the
credibility of State Farm.  Like her other claims of fraud,  this
          claim represents an attempt to relitigate the factual issues
decided  by the arbitrator.  As State Farm notes, Gilbert  points
to  nothing  in  the  record  to challenge  the  superior  courts
conclusion  that  there was no evidence of fraud.   We  therefore
hold that the superior court properly rejected Gilberts claims of
fraud.
          On  the issue of arbitrator bias, Gilbert suggests that
the  arbitrator  showed  partiality toward  State  Farm  when  he
allowed  the accident report and damage inspection report  to  be
withheld.   State  Farm  responds that Gilberts  claim  that  the
arbitrator showed partiality toward State Farm is without  merit.
As State Farm notes, Gilberts explanation that the arbitrator was
biased toward State Farm because insurance companies are frequent
customers  of arbitration would call into question all  insurance
arbitration  decisions  a result contrary to the  liberal  policy
favoring arbitration reflected in Alaskas Arbitration Act.15
          The superior court correctly found no evidence that the
arbitrator  treated  Gilberts claim unfairly.   As  the  superior
court  noted, the arbitrator allowed Gilbert to file any and  all
additional  material she deemed appropriate to  substantiate  her
motion  for  reconsideration.  Gilbert makes no  claim  that  the
arbitrator  had  a  specific relationship with  State  Farm  that
compromised his partiality, and there is no evidence  to  suggest
that  was  the  case.   We therefore affirm the  superior  courts
decision to uphold the arbitrators findings.
     C.   Gilberts Rights Were Not Violated.
          Gilbert  argues  that  her constitutional  rights  were
violated.   She refers to the Fourteenth Amendment to the  United
States Constitution, the Alaska Constitution, the Americans  with
Disabilities Act, and Alaska civil rights statutes, but points to
no  specific  instance of discrimination in  violation  of  these
provisions.  She first suggests that equal justice requires  that
she  receive  leniency as a pro se litigant,  but  points  to  no
specific  instance  where she did not receive leniency.   Gilbert
also points to Alaska civil rights statutes and claims a right to
be  free from discrimination on the basis of disability.  But she
fails  to identify any basis for her allegation of discrimination
on the basis of disability.16  These claims are without merit.
          Gilbert  also contends that her right to be  free  from
discrimination on the basis of gender was violated.   She  points
to   the  fact  that  one  of  State  Farms  experts  called  her
hysterical.  But she fails to explain how the use of this word by
a   single   expert   one  of  sixteen  experts  whose   reports,
depositions, and letters the arbitrator considered   casts  doubt
on  the  integrity  and  fairness of the  arbitration  proceeding
itself.  Thus, Gilberts claims of discrimination and violation of
constitutional   rights  are  lacking  in   factual   and   legal
foundation.
     D.   State Farm Need Not Produce Additional Documents.
          Gilbert  contests  the superior courts  denial  of  her
motions  to  compel  discovery.  She maintains  that  State  Farm
should    be    compelled   to   produce   documents,   including
correspondence between State Farm and its doctors and records  of
her previous accidents.  She argues that she needs the evidence .
          . . to show a jury why the 1994 accident was so disabling, and to
show State Farms fraudulent review process.
          Gilbert  filed  two motions to compel discovery  before
the  superior court.  The first motion, filed in September  2001,
requested  that  the  court  compel State  Farm  to  produce  the
videotape  of Dr. Sperbecks testimony because he was acting  very
nervous  and wringing his hands during his deposition.  Appellant
believes  that  this shows his consciousness of guilt  about  his
testimony.   The  second motion requested that the  court  compel
State  Farm  to produce all evidence withheld during Arbitration,
including its assessment of her car accident damage caused by the
1994  accident  and the amount State Farm paid for  that  damage.
State  Farm  opposed these motions, arguing  that  there  was  no
pending  discovery  and  that  all  discovery  matters  had  been
resolved  by the arbitrator.  The superior court denied all  [of]
appellant[s] pleadings in its final ruling.
          We affirm the courts decision denying Gilberts motions.
Gilbert provides no specific basis for her allegation that  these
documents  should have been discoverable and does not argue  that
she was prejudiced by the failure to provide them.  Gilbert makes
no  argument to this court as to why these documents are  crucial
or  even relevant  to her attempt to substantiate claims of fraud
and arbitrator bias.
     E.   There  Is  No  Basis for Sanctioning  Gilbert  for  her
          Appeal.
          Finally,  State  Farm  argues that  Gilbert  should  be
sanctioned  for what it calls her frivolous appeal.  It  contends
that  there  is no colorable basis for Gilberts claims  and  that
this  Court  [should] exercise its judgment  in  sanctioning  Ms.
Gilbert.  Given the latitude this court affords pro se litigants,17
sanctions  are  not  justified in this case,  where  Gilbert  has
proceeded in the superior court and before this court without  an
attorney.   Moreover, our memorandum order and judgment reversing
the   superior  courts  dismissal  order  states  that   Gilberts
pleadings allege a sufficient basis for appellate review  of  the
arbitration proceeding under AS 09.43.120(a)(1).18  We  therefore
decline to sanction Gilbert for her appeal.19
V.   CONCLUSION
          Because  the  superior  court properly  concluded  that
there  was no evidence of fraud, undue means, or arbitrator bias,
and  because there is no basis for Gilberts constitutional claims
or  for  the discovery she seeks, we AFFIRM the decision  of  the
superior  court to uphold the arbitrators award.   Because  State
Farms  argument  for  sanctions is unpersuasive,  we  decline  to
sanction Gilbert for her appeal in this case.
_______________________________
     1     Gilbert v. State Farm Ins. Co., Mem. Op. & J. No. 1178
(Alaska, July 28, 2004), 2004 WL 1701109, at *1.

     2    Id.

     3    Id.

     4    Id. at *4.

     5     Kinn v. Alaska Sales & Serv., Inc., 144 P.3d 474,  482
(Alaska  2006)  (alteration in original) (internal  citation  and
quotations omitted).

     6    Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657,
661(Alaska 1995).

     7    Alaska State Hous. Auth. v. Riley Pleas, Inc., 586 P.2d
1244,  1247-48  (Alaska 1978).  Gilbert cites City  of  Fairbanks
Mun.  Utils. v. Lees, 705 P.2d 457 (Alaska 1985) and Nizinksi  v.
Golden  Valley Elec. Assn, Inc., 509 P.2d 280 (Alaska  1973)  for
the  proposition  that courts may intervene  in  cases  of  gross
error.   But  Lees and Nizinski were labor disputes  and,  as  we
noted in Riley Pleas, labor disputes are expressly excluded  from
Alaskas  Arbitration Act.  586 P.2d at 1248.  As  a  result,  the
Acts  provisions restricting courts review of arbitration  awards
do not apply to labor arbitration.  Similarly, Gilberts reference
to  the more searching arbitrary and capricious standard that  we
applied  in  Butler  v.  Dunlap  is  inapposite;  it  applies  to
compulsory arbitration and not to arbitrations conducted pursuant
to the Act.  931 P.2d 1036, 1039 (Alaska 1997).

     8    586 P.2d at 1247.

     9    Id. at 1248.

     10    Id. at 1247-48.

     11     Her original filing with the superior court points to
State  Farms  failure  to  give  her  their  accident  file   and
correspondence with medical personnel.

     12    Kinn, 144 P.3d at 482.

     13     Moreover, as State Farm notes, the alleged letter  is
consistent  with  the  arbitrators  factual  findings  about  the
accident.

     14    Gilberts reply brief continues to focus on discrediting
the  conclusions  of  Dr.  Sperbeck,  contending  that  they  are
contradicted  by  other evidence.  But simply  offering  evidence
that  contradicts  other  evidence  does  not  constitute  fraud.
Gilbert  points to no evidence that Dr. Sperbeck  or  State  Farm
knowingly  provided fraudulent evidence.  Moreover,  Gilbert  had
ample opportunity to refute Dr. Sperbecks conclusions during  the
arbitration proceedings.

     15    See Lexington Mktg. Group, Inc. v. Goldbelt Eagle, LLC,
157  P.3d 470, 476 (Alaska 2007) (noting that Alaskas Arbitration
Act reflects strong policy in favor of arbitration).

     16     Gilbert  does  argue  in her  reply  brief  that  Dr.
Sperbeck,   the   individual   who  conducted   the   independent
psychological review, should have supplied her with a  supportive
chair  and that his failure to do so violated the Americans  with
Disabilities Act and Alaskas Civil Rights Act.  But not only does
she insufficiently brief this argument, she also fails to explain
how it is related to her contention that the arbitrators decision
should be overturned.  She makes no argument that the arbitration
proceedings  discriminated  against  her.   We  note  that  in  a
separate  lawsuit,  Gilbert sued Dr.  Sperbeck.   In  Gilbert  v.
Sperbeck, we held that witness immunity barred Gilberts fraud and
misrepresentation claims against Dr. Sperbeck, that the Americans
with  Disabilities  Act  did  not  provide  for  the  relief  she
requested,  and that she had waived her civil rights claim.   126
P.3d 1057 (Alaska 2005).

     17     See, e.g., Sperbeck, 126 P.3d at 1062 (noting that we
hold pro se litigants to less demanding standards).

     18    Gilbert v. State Farm Ins. Co., Mem. Op. & J. No. 1178
(Alaska, July 28, 2004), 2004 WL 1701109, at *3.

     19     We  also note that the arbitrator awarded State  Farm
attorneys  fees and costs augmented to the level of  75%  of  the
actual designated costs.

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